Second Take on Government’s Surveillance Reform Update Report: What’s New in Transparency

By Carrie Cordero
Friday, February 6, 2015, 9:18 AM

Earlier this week I provided observations on new data retention and data query restrictions as outlined in the Government’s Signals Intelligence Reform 2015 Anniversary Report. Today’s post focuses on the section of Tuesday’s report entitled, “Enhancing Transparency.”

This section largely summarizes and outlines the types of information that the Intelligence Community released over the last year and a half since the Snowden disclosures. These include creating IC on the Record, declassifying thousands of pages of legal, policy and oversight documents, and releasing a new narrative and statistical transparency report. In addition, senior Intelligence Community officials have embarked on a sustained effort to engage in public dialogue through speeches and participating in numerous panels at think tanks, law schools, and through the media.

The one new document released in this week’s report is a one-page Principles of Intelligence Transparency for the Intelligence Community. The Principles are the result of a serious and collaborative effort to articulate in clear language the direction the DNI is providing to the Intelligence Community regarding transparency. On one hand, they are the culmination of this past process, but on the other, they are just the beginning for what will likely be new initiatives in the future. As one might expect, they are high-level and not particularly controversial. Of significance, in laying out the four main principles, the document states “The Intelligence Community WILL…” [caps added]. There is no room for individual agencies to just have good intentions, or just try, to implement more transparency. The document makes clear that the Intelligence Community will follow the Principles going forward. Period.

The surveillance reform update also reports that there is a “senior working group to continue these transparency efforts and proactively identify new ones.” One area that I hope the group will focus on is developing a different kind of transparency that I articulated last October:

[S]ubstantive transparency about what the intelligence community actually knows about national security threats, how the United States interprets this information, and how that interpretation is connected to policy choices.

Broadly, this type of transparency could fall under number 2.a of the new Principles:

[The Intelligence Community will….] provide timely transparency on matters of public interest.

Why are factual information and Intelligence Community analysis of worldwide threats important right now?

They are important, in part, because between now and June 1, 2015, Congress will consider whether to allow provisions of FISA amended in response to the September 11, 2001, attacks to sunset, and whether to adopt legislation that will impose additional restrictions on the Intelligence Community’s ability to collect foreign intelligence information under FISA. They are also important because, as the DIA Director testified before Congress this week, today’s “security challenges [are] more diverse and complex than those we have experienced in our lifetimes.”

Although we often can feel saturated by the various sources of news and information, there appears to be a disconnect between the prior year’s legislative debate over surveillance authorities versus the threat picture painted by national security leaders. This may be due, in part, to a lack of detailed understanding of what, exactly, is the ground truth regarding international developments that affect United States’ policy and legislative decisions.

Sometimes these types of issues are discussed in general terms in the annual Worldwide Threat Assessment (although, while the DIA Director testified before the Armed Services Committee this week, there does not appear to be a 2015 DNI hearing scheduled yet before the intelligence committees). The underlying premise of providing more transparency regarding substantive knowledge and assessment is that foreign intelligence collection, and SIGINT in particular, is providing insight into these issues. (And if they are not, then the question becomes how do we increase our foreign intelligence collection effectiveness, not decrease it.)

What follows are just a few examples of recent international developments related to counterterrorism that would inform the public’s, and Congress’, consideration as to whether or not 2015 is the year to scale back foreign intelligence surveillance authorities:

  • What has the Intelligence Community learned about the growth of ISIS since the withdrawal of U.S. forces in Iraq in 2011 (as cited in DIA Director Stewart’s statement)? How has or should that knowledge inform policy decisions regarding Iraq?

"The Committee abhors and condemns the targeted and brutal killings of children by the so-called ISIL and in particular:

(a)           The systematic killing of children belonging to religious and ethnic minorities by the so-called ISIL, including several cases of mass executions of boys, as well as reports of beheadings, crucifixions of children and burying children alive;

 (b)           The very large number of children killed and severely injured, as a result of the current fighting, including by air strikes, shelling and military operations by the Iraqi Security Forces, and as a result of land mines and explosive war remnants. This includes deaths from dehydration, starvation and heat in conflict affected areas; and

(c)           The high number of children who have been abducted by the so-called ISIL, many of whom are severely traumatized from witnessing the murder of their parents and are subjected to physical and sexual assault."

  • What does the Intelligence Community know about allegations that Boko Haram, the brutal Islamist terrorist organization in Nigeria, killed 2000 people last month ? And has it been a global intelligence failure, or geo-political policy decisions, for some coalition of nations not to locate and rescue the 200 Nigerian girls kidnapped last year?
  • Who or what is running Yemen?

The list could go on, and each of us certainly has our own questions. But these questions are a start at illustrating the type of information that the public, and Members of Congress, would benefit from knowing more about. Once better informed, Americans, and their representatives in Congress, can assess the value that the U.S. Intelligence Community is contributing towards meaningful insight into these issues. Wouldn't it make sense to make informed judgements before drawing down foreign intelligence collection capabilities this year?