The President's Speech: a Quick Reaction

By Wells Bennett
Friday, January 17, 2014, 3:53 PM

The President’s speech and accompanying Policy Directive together announce all manner of changes; it will take a while to grasp them all. In the meantime, here's an off-the-cuff reaction: I reckon we will have to wait and see how many of today's proposals develop.  The devil is in the details, if you'll forgive a wince-inducing cliché---but details did not figure prominently in today’s remarks, and some important ones will not come into focus for a while.

Take the Directive itself.  It sets forth four broad “principles” governing the collection of signals intelligence.  These could be broadly or narrowly construed by the Intelligence Community, and thus influence some big-ticket collection that the President’s speech (to my eye) pointedly didn’t seek to alter massively---that conducted under Section 702 of FISA and E.O. 12333.  (Oddly enough, the Directive’s catalog of principles omits one headline-grabbing item, so far as concerns diplomacy: the “compelling national security purpose” standard, which, according to today’s remarks, now must be satisfied before the United States will monitor leaders of allied states.) Or consider the President’s call on Congress “to authorize the establishment of a panel of advocates from outside government to provide an independent voice in significant cases before the [FISC].” Its anyone's guess what the legislature might come up with here:  a stable of trusted attorneys who can file amicus briefs, when called upon to do so in especially important FISC cases? A slate of lawyers who will play a wider role in FISC proceedings? Something else?

The retooled telephone records program likewise will turn on events.  The President undeniably desires to get the government out of the telephony metadata collection business, in the first instance anyway.  Thus his call for a sixty day transition period, which would culminate with a recommendation for a party other than the government holding telephone records---the latter then being available for querying after FISC sign-off.  The policy dilemma here is obvious, and seemingly pretty tough.  Now it falls to the Director of National Intelligence and Attorney General to figure out a new storage approach---one not involving the government or the telephone companies, which apparently don't desire to hold on to collected stuff for any longer than absolutely necessary.  But what happens if the DNI and AG (or Congress) can't come up with a new, "third way" storage platform? The jury is still out, and probably will be for more than sixty days, I suspect.  (In the meantime, I share Orin’s puzzlement over the President’s statement that, going forward, queries of collected metadata will only be permitted “after a judicial finding, or in a true emergency.” Absent congressional input, I’m not sure what it will mean for government lawyers to “ask” the FISC to approve its search requests, or if the FISC will respond.)