Stewart Baker Responds on Review Group Recommendation #13

By Benjamin Wittes
Wednesday, January 1, 2014, 5:38 PM

I confess that I was not expecting the first response to my posts analyzing the Review Group recommendations would be one accusing me of going soft on the Review Group. But today, Stewart Baker, former NSA general counsel and former policy chief at DHS, writes in with the following point about my comments on Recommendation #13. I think he has a point:

I think you’re wrong about Rec. 13. Part (4) is insane---political correctness run amok.  We “must not target any non-United States person located outside of the United States based solely on that person’s political views or religious convictions.” [S]o we can’t target people who advocate killing Americans to find out whether they’re acting on those views? We can’t target Shia leaders in Lebanon because they’re Shia leaders and we want to know what the Shiites are thinking? We can’t target a new and disruptive political party in Japan because we are afraid they’ll dump the constitution and the US alliance?

I had interpreted the recommendation as requiring that there be a foreign intelligence interest in the subject of surveillance for the surveillance to be justified. Stewart's point is that sometimes, the foreign intelligence interest and the religious or political views are hopelessly intertwined. That is, the political views give rise to the foreign intelligence interest. In the United States or with respect to US persons, the attorney general's guidelines and the FISA require that authorities not open investigations on people based solely on First Amendment protected activity. In other words, we err on the side of taking risks in defense of free speech and advocacy and religion. But it's not obvious at all that we should employ the same rule with respect to non-US persons overseas in the conduct of foreign policy, and that's not the rule the intelligence community has traditionally applied.