What's To Be Done?

Jaffer has long contended that PRISM is, in its essence, a violation of the Fourth Amendment as well as the First Amendment right to freedom of association. He was the lead attorney for a group of ACLU clients — lawyers, journalists, and human rights advocates — in a challenge to Section 702 that the Supreme Court rejected, in a familiar 5-to-4 split, in February 2013. That was, of course, pre-Snowden. But the leaks have shown no sign of nudging the judiciary toward anything like a consensus. Quite the contrary. In December alone, a U.S. district judge in the District of Columbia resoundingly declared the phone records program unconstitutional, and 11 days later another federal judge, in Manhattan, just as forcefully upheld the program.

That same month, President Obama­ — a chief executive who is highly deliberative by nature and trained in constitutional law — received a report from a panel of five former government officials recommending new or tightened restrictions on NSA practices.

Inside the NSA: Brookings scholars Benjamin Wittes and Robert Chesney took recording equipment into the NSA's headquarters at Fort Meade, MD to interview key NSA staff. Listen to all five podcasts on Lawfare

A number of those proposals were reflected in Obama's speech at the Justice Department on January 17. He walked a fine line between responding to the global outcry and, as he clearly saw it, protecting the NSA's ability to protect America. Among the measures he announced was an immediate order for the NSA to limit its surveillance of phone records to connections that were two degrees of separation (or "hops") from a known or suspected terrorist, rather than the three degrees that had been permissible before. The president also called on the executive branch and, ultimately, Congress to come up with a plan for warehousing the data in private hands, with a requirement that counterterrorist agencies seek access the records on a case-by-case basis.

As Obama made clear, many features of his plan require review and refinement within the executive branch. As the designated custodian of these records, the private sector, too, will have an important role to play, and not necessarily one it welcomes. The phone companies have been understandably skittish about helping the government — as many will see it — pry into the lives of their customers.

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And then there is the legislative branch, which was the source of the restrictive laws on intelligence activities in the seventies and the eager partner of the executive branch in undermining those laws during the two pre-Snowden decades.

Many in Congress were quick to spin Obama's decisions and suggestions as consistent with their own. Wyden and two Senate allies, Udall and Martin Heinrich (D-N.M.), issued a joint statement in January saying they were "very pleased that the president announced his intent to end the bulk collection of Americans' phone records," even though the president had made no flat assertion to that effect.

Feinstein and her House counterpart, Representative Mike Rogers (R-Mich.), said, more accurately, that they were "pleased the president underscored the importance of using telephone metadata to rapidly identify possible terrorist plots," a task that they — like the NSA — believe requires continuing bulk collection.

Jaffer shared their interpretation of Obama's overall message — "He tinkered with the margins, but he seems to have rejected, at least for now, any far-reaching changes, which means that he has accepted, at least for now, the proposition that the NSA should be collecting essentially everything" — though not their reaction to it, because the bulk collection is the very thing he and other critics want to see changed.

In March, the House Intelligence Committee's ranking Republican and Democratic members said that they were close to agreement on legislation that would end bulk collection of phone records. Shortly thereafter, President Obama unveiled a proposal that would do just that. Under the new plan, the government would no longer systematically collect and store Americans' calling data, which would instead reside in the hands of phone companies. Only with permission from a judge could the government obtain specific, suspect records.

In at least one area of reform— more transparency and accountability — there is a degree of convergence among Wyden, Feinstein, Brenner, Jaffer, and many others who differ over other aspects of surveillance and reform.

Wyden has long since staked out his objection to a "secret court" — "the most bizarre court in America" he calls it — which deliberates behind closed doors and hears only from government counsel, then issues interpretations that are classified. "The law should always be public," he says. "How do Americans make informed judgments about policies if there's a big gap between the laws that are written publicly and their secret interpretation?"

Brenner agrees that "we have a massive over-classification problem," adding, "Look, democracies distrust power and secrecy, and intelligence organizations are powerful and secret. The only way to square that circle is if the public understands what the rules are and has reason to think they are being followed." While he regards Snowden as "a traitor and a scoundrel," he faults the government for not having publicly revealed and explained the phone records program years ago. Had that happened, the American people would have had "the kind of debate that's happening now" — but in a less sensationalized and more deliberative atmosphere.

It is ironic that in the wake of the Snowden leaks the NSA took steps toward precisely that kind of openness with its decision last December to allow Benjamin Wittes and Robert Chesney, scholars in the Governance Studies program at Brookings, to interview five top officials of the agency at its Fort Meade headquarters. The result, posted online as a series of Lawfare blogs and podcasts, was an extraordinarily candid, sometimes eye-popping explanation of the inner workings of the intelligence-gathering process, the oversight and enforcement procedures, the relationship with the private sector, the constant race to keep up with new technologies, the means by which Snowden was able to pilfer the material he publicized, and the steps that are being taken to prevent another such breakdown in security.

But the NSA's decision to allow those interviews, while voluntary, was almost surely due to the public pressure it was under. Wyden and his congressional allies have long urged that the government be required to make periodic reports on its activities, to the extent permitted by "protection of sources and methods" and other strong national security needs. Wyden would also like to see disclosures of the breadth of information collection and open acknowledgment of violations of law by the NSA or other agencies. He believes that such transparency would have a braking effect on excessive surveillance.

Feinstein and her allies would also require greater transparency, but not as much as Wyden advocates, and mostly in the form of codifying in statute the steps already taken by the NSA. Again, Brenner is thinking along similar lines. He has written that the dilemma created by the need to protect both privacy and national security "can be resolved only through oversight mechanisms that are publicly understood and trusted — but are not themselves entirely transparent."

As President Obama recognized in his January 17 speech, an additional way to ensure more fully informed decisions by the FISA Court and to raise public trust in its work would be to encourage or require that it hear from independent voices rather than from the government alone. In the speech, Obama called on Congress to establish a panel of public advocates who would represent privacy interests before the FISA Court, an idea that he had first floated the previous summer. As Jaffer says, "When a court is presented with only one side's arguments, it's inevitable that the court is going to end up siding with that side more often than it ought to."

Feinstein and Brenner as well as Jaffer and Wyden favor some version of such a change, as do Alexander, Obama, and most other players in the NSA drama; but Wyden and Jaffer would give the advocates more power than most of the others would. Feinstein, for example, would leave it to the judges to decide in which cases to appoint "friends of the court to provide independent perspectives," while Wyden and Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) prefer a permanent office of "special advocate." The advocate would have the right to oppose the government in important cases; to ask to be heard even if uninvited by the court; and to appeal surveillance court decisions with which the advocate disagrees. Somewhere in this mixture of proposals there is surely a compromise that will ensure that independent, security-cleared lawyers will have the opportunity to expose the weaknesses in the government's arguments without turning every case into a legal donnybrook.

Words from the Author

Feinstein believes that there is a meta-problem more vexing and more important than the fate of any one intelligence program. The biggest challenge, as she sees it, is using the debate and reform of NSA activities to begin repairing "the destruction of faith in our government," a blow to national security and national morale that the Snowden leaks have exacerbated.

She is surely right about that, and that makes it all the more important to put the onus on the American people's representatives in Congress to join the president in making the tough choices. As Brenner says, "If you have to make a recorded vote on whether to give this authority to an agency, or if you're in an agency and have to decide whether you want the authority, you're asking yourself how you're going to look when the bomb goes off. And that's a scary position to be in. That's called having responsibility. And people who've actually got the responsibility talk and behave differently than people who don't."

No one has more responsibility than President Obama himself. While he is not commonly viewed as the nation's Spymaster-in-Chief, that function does come with his job. He sees the most highly classified intelligence every morning. He is in a position to judge its utility over time and, therefore, to make judgments about "the sources and methods" by which it is collected. And the buck stops on his desk if the system fails to anticipate a Pearl Harbor or a 9/11. No doubt that aspect of his job helps explain what seems to some of his critics a disconnect between his strong civil libertarian roots and his professorial knowledge of the Constitution on the one hand, and his essentially protective posture with regard to NSA surveillance on the other.

Whether the American people and their representatives in Congress will support the president, Feinstein, and others who want to maintain much of the status quo depends on there being more public trust in government than there is now. The distrust evident in the polls is directed at both the legislative and executive branches.

Stuart Taylor, Jr.



Learn More > is an author, a freelance journalist, and a Brookings nonresident senior fellow. Taylor has covered the Supreme Court for a variety of national publications, including The New York Times, Newsweek, and National Journal, where he is also a contributing editor. His published books include Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It. In addition to his work as a journalist and scholar, he is a graduate of Harvard Law School and practiced law in a D.C. firm.

In addition, there must be a critical mass of the public willing to live with not just one permanent conundrum but two. The first, which is at the heart of the problem, is the inherent tension between national security and individual privacy. The second, which is evident in the search for a solution, is the severe limit on the degree to which transparency can be reconciled with functions of government that must be opaque — that is, secret — in order to be effective.

The challenge is captured in the most famous sentence that F. Scott Fitzgerald ever wrote, in an essay three-quarters of a century ago: "The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function." That is also the test of a first-rate intelligence agency in the service of a robust democracy.

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