Six months after Edward Snowden shocked the world with details of unprecedented U.S. spying programs, an independent review board's report says America should move from a “yes, we can” approach to espionage to one that also asks, “but should we?”
President Barack Obama’s Review Group on Intelligence and Communications produced a 300-page report with 46 recommendations addressing a wide range of topics such as how and when the government can scoop up personal phone records and electronic communications to how the National Security Agency should deal with spying on foreign leaders. The White House made the document public on Wednesday after the group met with Obama behind closed doors.
Snowden, a former contract worker for the NSA, brought the spying debate into homes around the world, but his name never appears in the report — though there are unmistakable references to his disclosures as well as warnings against government infringing on press freedom.
If implemented — and the White House has said it will act on some suggestions, study others and dump the rest — the proposals could rewrite the rules for government collection, storage and use of private telephone records. They could also raise the bar somewhat for greenlighting spying on foreign leaders, though not eliminate the practice, which has outraged American friends and allies like Brazil and Germany. The group recommended taking the authority to carry out many NSA programs out of the agency’s hands and entrusting them to the president, Congress and courts.
In a briefing with reporters, review group members emphasized they did not seek “the disarming” of American intelligence agencies or declare the "war on terrorism" over. Rather, they said, their advice focused on new rules to repair the broken relationship between those agencies and the public as well as between the United States and its allies.
“We’re not saying that the struggle against terrorism is over, or that it has declined to such an extent that we can dismantle the mechanisms that we have put in place to safeguard the country,” explained board member Richard Clarke, a counterterrorism adviser in the Clinton and Bush White Houses.
“What we are saying is those mechanisms can be more transparent, that they can have more independent, outside oversight, judicial oversight and that there can be more mechanisms for protecting civil liberties and for giving the public a sense of trust that goes beyond what it has today,” Clarke told reporters.
Among the proposals: Forbid the government to indiscriminately scoop up virtually all Americans’ private telephone records and store them for future intelligence use. Instead, the records would remain in the hands of a private-sector entity, possibly a telecom company. The government would need a court order to access an individual’s records thereafter.
“It is a major change to the status quo,” said board member Cass Sunstein.
The board said its review of the mass collection and analysis of Americans’ phone records showed the program “was not essential to preventing attacks” and warned of the potential for future abuse — through blackmail, hacking or even politically motivated misuse.
The report also said the FBI should get court approval before issuing so-called National Security Letters that give it warrantless access to personal records. From Oct. 1, 2011, to Sept. 30, 2012, the FBI issued 21,000 such letters, the report says.
Other recommendations include forbidding the NSA to press tech companies to create “backdoors” in their software or exploit weaknesses in mass-market computer programs. American high-tech companies have expressed concerns that such steps could drive consumers to their non-U.S. competitors.
The U.S. government should also make clear “that it will not in any way subvert, undermine, weaken or make vulnerable generally available commercial encryption.”
The proposed rules also would raise standards for spying on citizens of other countries, giving greater privacy safeguards against “unjustified intrusions.” They would also put the United States on record as promising not to use the NSA for industrial espionage.
When it comes to spying on world leaders, American spy agencies would need to weigh whether there is a need to target a given leader to get information about “significant threats to ... national security”; whether the leader deserves “a high degree of respect and deference” by virtue of relationship with the United States; whether there is reason to suspect the leader of lying to top U.S. officials; whether there are other means to acquire the relevant information; and whether diplomatic blowback outweighs benefits if a program comes to light.
As crafted, the proposals would seem to spare someone like German Chancellor Angela Merkel, who has angrily condemned U.S. spying on her communications. But a leader like Afghan President Hamid Karzai might not be immune.
“The way it’s dealt with today is the main risk that is looked at in making these decision is operational risk: What is the risk of the operation becoming public?” said board member Michael Morell, a former acting CIA director.
And what of Snowden? The report doesn’t name him. But one section (page 126) plainly refers to the former NSA contractor.
“Although an individual government employee or contractor should not take it upon himself to decide on his own to ‘leak’ classified information because he thinks it would be better for the nation for the information to be disclosed, it is also the case that a free and democratic nation needs safe, reliable, and fair-minded processes to enable such individuals to present their concerns to responsible and independent officials,” the report says. “After all, their concerns might be justified."