(Very) Quick Reactions to Proposed NSA Reforms

By Jack Goldsmith
Friday, December 13, 2013, 10:31 AM

It is precarious to comment on a leaked version of broad conclusions from a government report.  But I think the NYT and WSJ accounts of the recommendations by the President’s Review Group on Intelligence and Communications Technology – which consists of Richard A. Clarke, Michael Morell, Cass Sunstein, Geoffrey Stone, and Peter Swire – on the whole reveal solid recommendations that, if implemented, will benefit both NSA and U.S. national security.

The WSJ describes the proposals as “sweeping overhauls,” and in some sense they are.  But as best I can tell most of the recommendations are procedural and jurisdictional and cosmetic, not substantive, and they appear more designed to legitimize and give the public confidence in what the USG through the NSA does rather than cut back sharply on what the USG through the NSA does.

  • The panel recommends that the head of NSA be a civilian rather than military official.  This change was coming in any event in light of the NSA’s deeper-than-ever involvement in homeland collection, and is appropriate.
  • More controversial, but also inevitable, is the recommendation to chop off Cyber Command from NSA – this recommendation is debatable in light of the tight connection between cyberexploitation and cyberattack, but it has powerful arguments behind it and again was probably going to happen anyway.
  • Apparently the panel recommends continuation of domestic telephone meta-data collection, but with the data being collected/held by the phone companies or a third-party, not NSA, and subject to stricter search criteria.  This is probably close to the Sensenbrenner/Leahy bill that the NSA opposes, and indeed it would likely make metadata analysis more difficult, cumbersome, and expensive.  This is a large change from the current baseline, but it is does not appear to come close to eliminating the functional benefits of metadata collection and analysis.  Indeed, one can see the bottom line, as the NYT put it, that the “program to collect data on every phone call made in the United States should continue.”
  • The panel apparently recommends an organization of privacy advocates to enhance adversariness before the FISC.  This is another previously-broached recommendation that will slow things down and weaken the government’s legal hand before the FISC, but that overall will enhance the legitimacy of FISC rulings and thus of NSA activities.
  • The committee apparently proposes guidelines for foreign collection against foreign citizens, including foreign leaders.  The devil will be in the details here, but while there will certainly be some restraint imposed, I doubt seriously if it will involve a significant scale-back of foreign collection.  But it is hard to tell based on the news reports.

“There’s going to be a lot of pushback to some of their ideas,” the NYT reports someone “familiar with the contents” of the report saying.  The pushback contemplated here is from intelligence officials inside the USG, suggesting that the recommendations go too far.  That is inevitable, and the NSA and others will definitely oppose ’these changes since some of its core responsibilities are being moved or farmed out  (I did not mention all the proposed changes above).  But such changes, and resistance, were inevitable in light of the Snowden revelations, and a thorough review and reform of NSA in light of its extraordinary post-9/11 changes and growth was overdue.  What is most significant, I think, is that a committee that includes very credible liberal commentators Sunstein, Stone, and Swire has looked at everything the NSA does, deemed it lawful (according to the WSJ), and has recommended a continuation (in one way or another) of almost every functional task performed by NSA – albeit not always within NSA, and with new structures and restraints designed primarily to enhance NSA and USG credibility and legitimacy.  It is also significant that Morell and Clarke, who have obvious bona fides in the national security community, apparently do not think these changes will adversely affect national security given the realities of a post-Snowden world.  We see the beginnings here of something I have emphasized in many other contexts – that enhanced government power to meet the national security threats is often fostered by transparency and restraint.