by Allen B. Isaacson, guest blogger
On Thursday, Geoffrey Stone, University of Chicago’s Edward H. Levi Distinguished Service Professor of Law, summarized the findings of a 300-page report titled Liberty and Security in a Changing World, released on December 12th by a panel of five law and intelligence experts (including Stone) appointed by President Obama to analyze and make recommendations for reform of the National Surveillance Administration's extensive domestic and international surveillance programs. Stone then fielded questions from the media and other attendees. The entire event was broadcast live to the public and is still available online for viewing.
Stone began his summary by briefly explaining the panel's process, which required that they meet with many advocacy groups, congressional intelligence committees, intelligence agencies, and others for discussion and analysis over several months. He affirmed his trust in the panel's findings and recommendations. However, at times, Stone also expressed that the report was limited by its short timeline and the panel's unfamiliarity with the technical aspects of the NSA surveillance programs. Stone did emphasize that all 46 recommendations outlined in the report were endorsed unanimously by all of the panel members, despite their disparate views. Stone described the process “like being in a foxhole for five months.”
Many of Stone's initial statements seemed to be a vindication of the NSA and its employees. “In all of this, the NSA does nothing illegal – that is, it is not acting beyond its authorities,” Stone said, noting that it followed procedure when legality was in question by consulting the secret court established by the Foreign Intelligence Surveillance Act. He continued, “Not a single instance we uncovered [of] the NSA acting intentionally illegally … The problems are not with the NSA. It's with the authorities you give the NSA.” However, Stone was not quite as confident in the actions of the FISA court, which he said rightfully exists for its ability to handle top-secret surveillance warrants, although it sometimes had to make decisions requiring an “adversarial position” concerning the legality of certain programs, such as the NSA's controversial domestic meta-data collection. He believed that, in such cases, the FISA court should have ruled that the issue was beyond the scope of their judicial authority and required Congressional authorization rather than repeatedly signing off on such a dubious program and allowing the NSA to continue its surveillance. Recently, the program was ruled unconstitutional by a U.S. District Court in the District of Columbia but was also subsequently ruled lawful by a judge in the Southern District of New York.
“Under section 215 of the Foreign Intelligence Surveillance Act (FISA), the government now stores bulk telephony meta-data, understood as information that includes the telephone numbers that both originate and receive calls, time of call, and date of call,” as the program is described by the panel's report, which further specifies, “Meta-data does not include the content of calls.” Under the FISA statute, the NSA queried 288 numbers in 2012 and had only 16 instances where matches were analyzed, confirmed, and then forwarded to the FBI. According to Stone, these queries only produced about 6,000 numbers that were “touched” by the analysis, of the millions of numbers whose meta-data the NSA stores for up to five years. The panel recommended that the retention period should be reduced to two years. Stone also stated that, while the exact percentage is classified, only a small number of communications are actually swept into the program, partly due to cost limitations. While answering questions, Stone was asked whether the data should be “purged” (removed completely) or “minimized” (reduced to its raw form). The report recommended that data be “purged on a rolling basis,” but Stone admitted that this poses a problem for authorities, who may not be aware of its relevance until much later. The report made many similar recommendations for foreign surveillance under section 702 of FISA and also recommended that a “minimum level” of privacy protection be established including “high-level review and approval” of retention of data regarding non-U.S. persons, according to Stone.
When pressed about his views of Edward Snowden and the release of classified materials to WikiLeaks as an act of enforcing accountability, Stone lived up to his reputation as a harsh critic of Snowden, reasserting that he should not be granted clemency as a whistleblower. He explained that, after serving on the panel for which he received top-secret clearance, Stone was aware of the many threats to national security that these programs help defend against. “There are very real costs [for intelligence leaks], and they're not known by the public, and they were not known by Snowden,” Stone emphasized. “There have been many ways in which … [Snowden] has caused real harm.” Stone's belief is that there are more appropriate ways to address perceived issues of legality, and that a government employee should not “take it upon himself … when the stakes are this high” because “it's completely reckless.” He offered, as an alternative, that a concerned employee should follow the law and take any issue up the chain of command or bring it to a congressional intelligence committee, which has top-secret clearance and has approved these programs on many occasions. When asked if, had Snowden stayed within the law, the disclosures would have been made that spawned the panel's review, Stone responded, it might not have, but that is no excuse for Snowden's actions because “it's an imperfect world.” This response is especially unsatisfactory, and Snowden should receive clemency and further protections should be established by law.
The panel has recommended, among other reforms, that transparency must be increased to regain the public trust and that oversight be strengthened. Despite his previous characterization of the intelligence committees as being aware of the NSA's broad surveillance programs and having approved them multiple times, Stone stated that the panel “knew more than the [House Intelligence Committee] knew” about the operation of the programs and the FISA court and that oversight was insufficient.
While suggesting broad and significant reforms for the surveillance powers afforded the NSA and its programs, such as creating a “Public Interest Advocate to represent the interests of privacy and civil liberties” before the FISA court and a similarly-motivated board to review government activities, the panel's report is not critical of the NSA itself, and neither is Geoffrey Stone. In many ways, Stone accommodates the interests of the intelligence community and seems to believe that a comprehensive database of information about persons in the United States is appropriate and beneficial to national security, a point of view that has been rejected or questioned by many. Regardless, he and the review panel must be commended for analyzing and suggesting much-needed reforms to unchecked intelligence practices on such short notice. The panel's reforms would protect privacy and civil liberties from overreaching surveillance practices if enacted, but it remains to be seen whether those reforms will actually be put into practice.
0 thoughts on “Geoffrey Stone Speaks at Public Citizen Symposium About Findings of NSA Review”
In reference to the question of which standard of law Mr. Stone is referring to, I believe he means to say that the governmental regulations regarding classified information and public disclosure be adhered to. I agree that it is offensive to the public that we be removed from the process of legal and judicial accountability, which underscores the present issue the intelligence community faces with rebuilding the public trust. On the other hand, the effectiveness of surveillance and intelligence programs depend on a certain amount of secrecy which agencies like the NSA, CIA, and DHS must be able to count on, both to protect their operations and their operatives. The question that follows is, how do we determine the appropriate balance between secrecy in surveillance and intelligence and the Constitutional privacy rights of the public, as well as maintaining sufficient government accountability?
Ultimately, most approaches, including Stone’s, require invoking a vague “balancing test.” I believe that in many ways, the panel’s recommendations make good use of a proper “balancing test” between oversight and autonomy for intelligence operations. The question remains of whether the recommendations go far enough in the realm of protecting citizens’ privacy rights or whether they already go too far to be realistically considered for implementation by the intelligence community.
Thank you Mr. Isaacson for this blog.
My personal reaction to a double statement as cited:
He offered, as an alternative, that a concerned employee should (1)follow the law and take any issue up the chain of command or bring it to a congressional intelligence committee, (2) which has top-secret clearance and has approved these programs on many occasions.
(1) Which law?
• “Ours” at citizen level, which is almost totally impotent and therefore ineffective; or
• “Theirs” which, as clearly stated, is kept secret and therefore without open justification: “A secret warrant issued by a secret court…” Please!
(2) That very definition is an arrogant insult to American citizens. We are only good to be kept like mushrooms and obey the powers to be. Really!