These all address the problem of impotence; but what about capture? The danger to all the access that NSA civil-liberties staffers have is a special kind of capture—not, as the term usually indicates, by outsiders, but in this case by colleagues. The more involved in NSA decision-making the civil-liberties office is, the more pressure it will get to go along, to ratify whatever program is being discussed.

What counters that pressure, if anything, is the new official’s commitment to her assigned values—to privacy and to civil liberties. Indeed, the NSA’s civil-liberties office will be able to bolster individual liberty only if its leader and staff stay committed. Maintaining commitment means resisting both collegial and careerist pressures, born of normal desires to get along with colleagues and to earn their approbation.

Beyond civil-liberties officials’ commitment to their mission, what is needed are multipronged efforts by those officials and staffers to maintain ties to a professional privacy and civil-liberties community that can serve as a highly salient reference group. Such efforts can include a combination of hiring, networking, and fostering of career paths that value privacy and civil-liberties expertise and commitment.

Again, the classified setting will make this more difficult than elsewhere. For example, bringing in new employees directly from advocacy groups is a common strategy for Offices of Goodness that seek to ensure staff commitment. But for the NSA civil liberties office, the top-secret clearance process can take many months, which puts pressure on hiring managers to hire already cleared federal employees, not external advocates. Even if civil-liberties advocates get hired, they may well run into lengthy security-clearance delays. Office Director Rebecca Richards reports that five people she has so far brought on board are from within the NSA, to minimize hiring delays (as well as to help her get a better understanding of how the NSA works). She has so far hired just one privacy expert from outside the agency.

Even if staff were hired from a civil-liberties organization, that affiliation is likely to fade—and the risk of eroding commitment to the civil liberties mission to rise—as time passes. To stave off that risk, an office’s head can connect its staff to current advocates by, for example, sending them to conferences or other public or private events. Doing so helps reinforce staff commitment to civil liberties simply by exposure and example. Moreover, outside events can have a disciplining function, penalizing capture with harsh questions or criticisms, both public and private. That said, the new civil-liberties office’s staff will not be able to talk much about its work, which might limit the efficacy of this approach.

A more promising method for avoiding capture is to develop attractive career paths for civil-liberties staffers. It will be far easier for the NSA civil-liberties-office staff to maintain their commitment to their mission if there are a sufficient number of national-security jobs—both within the new office and outside—that require a demonstrated commitment to civil liberties. Perhaps that will happen; the Snowden disclosures, and the natural maturation of this new bureaucratic strategy of civil-liberties offices, mean that numerous government institutions are gaining civil-liberties staff. The independent Privacy and Civil Liberties Oversight Board has a tiny staff, for example, and may well grow. The White House has designated privacy and civil-liberties staff. And there are already some such jobs scattered around the government, at ODNI, DOJ, and DHS, among others. Of course there are private opportunities, as well, at universities, advocacy organizations, and elsewhere. The success of the new NSA office and other offices like it may depend on whether this job network reaches critical mass—currently, national-security civil-liberties jobs within the government are extraordinarily scarce.

Civil-Liberties and Privacy Officials in the White House

From 1999 to 2001, the Clinton administration Office of Management and Budget had a political appointee called the “Chief Counselor for Privacy.” Peter Swire, one of the members of President Obama’s Review Group, served in that position, and the Review Group proposed that it be recreated, with the fancier title of “Special Assistant to the President for Privacy” and the added authority that the appointee sit jointly in the OMB and the National Security Staff and chair a Chief Privacy Officer Council “to help coordinate privacy policy throughout the Executive branch.” The Review Group’s report explained:

There are several reasons for creating this position: First, the OMB-run clearance process is an efficient and effective way to ensure that privacy issues are considered by policymakers. Second, a political appointee is more likely to be effective than a civil servant. Third, identifying a single, publicly named official provides a focal point for outside experts, advocacy groups, industry, foreign governments, and others to inform the policy process. Fourth, this policy development role is distinct from that of ensuring compliance by the agencies.