Would new NSA oversight recommendations adversely slow down intelligence?

December 18, 2013 at 12:00 AM EST
A review group appointed by the White House to assess the NSA's data-gathering practices is calling for new rules. Michael Leiter, former director of the National Counterterrorism Center, and Kate Martin, director of the Center for National Security Studies, discuss their views on the recommendations with Jeffrey Brown.
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GWEN IFILL: Now: striking the balance between liberty and security.

An independent committee appointed by the president called today for new rules to government surveillance.

Jeffrey Brown has the story.

JEFFREY BROWN: The 300-page report recommends scores of changes in how the National Security Agency gathers intelligence.

It urges the massive amount of phone record data collected by the agency be stored by telephone companies themselves or a third party. It also proposes requiring a court to approve individual searches of phone and Internet records.

At the White House, Press Secretary Jay Carney said President Obama plans no public comment on the findings.

JAY CARNEY, White House Press Secretary: In January, when the overall internal review is completed, the president will make remarks about the work that he has undertaken and the outcomes of his review.

JEFFREY BROWN: The outside assessment was ordered after former NSA contractor Edward Snowden leaked secret details about the agency’s efforts last summer.

Intelligence officials maintain their data collection operation has thwarted a number of terror attacks. But opponents argue it goes too far.

Carney insisted the president’s top priority is the safety and security of the American people.

JAY CARNEY: He does believe that we can take steps to refine our practices and make sure that we are collecting intelligence, gathering intelligence in a way that serves our security needs in a focused way, and not just because we can because we have the capacity to do so.

JEFFREY BROWN: The full report was originally expected to be released in January. But Carney said the administration decided to release it early because initial media reports were inaccurate.

And for more on what the review panel is recommending, we turn to Michael Leiter, the first director of the National Counterterrorism Center under President George W. Bush and President Obama. He is now with a private technology firm. And Kate Martin, the director of the Center for National Security Studies, a civil liberties advocacy group.

And welcome to both of you.

First, I would like to just get an overview of how you read the panel.

Let’s start with you, Kate Martin.

How strong is this?

KATE MARTIN, Center for National Security Studies: It’s very strong.

It flatly recommends an end to the bulk collection program for telephone records. It questions the — all of the various programs for bulk collection. It has some specific recommendations for changing other authorities. And it has a lot of recommendations for increasing transparency on this kind of national security intelligence gathering.

JEFFREY BROWN: Michael Leiter, how do you read it?

MICHAEL LEITER, former Director of the National Counterterrorism Center: Well, I would agree with some of what Kate say.

It is relatively strong. It doesn’t actually recommend the termination of any of these programs. It recommends changing how they are done. And it highlights the importance of transparency and some more effective oversight. So I think it is more a modification than a revolution in what we have been doing.

JEFFREY BROWN: Well, so, specifically, to look at one recommendation, well, one of the big ones is to take the data and keep it with the phone companies or a third party, as opposed to the government. What would that do?

MICHAEL LEITER: Correct.

So, this is talking about telephone metadata, the length of calls, who made the calls — or I should say the numbers that made the calls. And right now, the NSA, the National Security Agency, holds all of that data and analyzes it on its own. It recommends new legislation so the phone companies are an outside — and they would hold it.

And then the NSA would have to get judicial approval to actually do searches against it. I think that’s quite good, and technology allows that to occur in the future. It insures that there is less of a privacy invasion, because the government wouldn’t hold the data. But it still provides the NSA with the flexibility it needs to do the sorts of searches to find national security threats.

JEFFREY BROWN: You would agree that that is a good move?

KATE MARTIN: I would agree it is a good move.

I would disagree about how major of a move it. At the moment, what the law provides is that the government goes and has made a database with five years of metadata on every call by every American. This recommendation would stop that. The government would no longer have a database like that.

And, instead, when they had a specific telephone number that they believed was reasonably connected to a terrorist, they would go to a judge, get permission to then go to the telephone companies and ask for information about that telephone number. And the report is very detailed about the reasons why a bulk database of information on Americans is a bad idea, and not necessary for national security, and quite different from allowing the government to go to the phone companies.

JEFFREY BROWN: Do you see, Michael Leiter, thins here, specific things, or in the totality that would harm, that go too far on the security side of that?

MICHAEL LEITER: I don’t really see any individual recommendations here that are problematic.

What does concern me is that, taken in totality, if these things are applied with the sort of bureaucracy that can sometimes occur in the government, it could slow things down significantly.

JEFFREY BROWN: Such as? Give us an example.

MICHAEL LEITER: Well, there is much more responsibility for FISA court judges. That’s not all bad. There is a larger role for the president’s Civil Liberties Oversight Board. There is more of a role for the FISA court reviewing what the FBI does.

So, in sum, all of these things I think do pose a risk of slowing down the broader system and making intelligence officers much more risk-averse. But I think the devil will be in the details. This is really the first salvo. We will have to wait and see what the president says and ultimately what Congress does on the legislative front.

JEFFREY BROWN: What do you think about — a lot of these things that he’s talking about go to the transparency question, right?

KATE MARTIN: Yes.

JEFFREY BROWN: And accountability and oversight.

KATE MARTIN: Yes.

JEFFREY BROWN: So, you put them all together, and the question is, is it too much? Does it slow down? Does it — does it make security less effective?

KATE MARTIN: Well, I think the answer to that is that two members of this handpicked panel by the president, of course, were former extremely senior or high-level counterterrorism officials.

One of the things they say in their report is that they looked at these programs, and they didn’t find the programs to be necessary for national security. So, the question about whether or not it slows it down, you know, they’re saying we have got to readjust the programs.

One of the things that is obscured, with all due respect, I think, is, we’re not talking about in the main here intelligence gathering in a war zone, in Iraq or Afghanistan. We’re talking about the government gathering information on its own citizens.

And so, yes, you want it slowed down. And, in fact, one of the important insights in the report is that security is both a matter of national security and privacy. And the fact that that conclusion was reached by former counterterrorism officials, I hope the president takes that into account.

JEFFREY BROWN: You want to respond to that?

MICHAEL LEITER: Well, I mean I think — I hope it is readily apparent that privacy and civil liberties are a national security interest as well. There is no doubt about that.

And I commend the panel for talking about the ways in which transparency and oversight can be improved. I actual just think that Kate misreads some of this. First of all, many of the recommendations are not about U.S. persons. So, there is much in here which is about other programs which the review group specifically says are quite helpful, to include some of the e-mail collection issues.

And what I would stress again is, this group doesn’t actually recommend the termination of these programs. It recommends a modification for greater oversight, greater transparency. As a general matter, I think that’s an outstanding thing.

JEFFREY BROWN: And we should say…

KATE MARTIN: Could I just…

(CROSSTALK)

JEFFREY BROWN: OK, very briefly.

KATE MARTIN: Quote: “We recommend that this program, the telephone metadata program, should be terminated as soon as reasonably practicable.”

And that is something that the president can do on his own.

(CROSSTALK)

JEFFREY BROWN: Go ahead.

MICHAEL LEITER: Very quickly, what Kate doesn’t say is that she then — they then recommend legislation to allow the telephone companies to do this, so NSA can search that same data.

JEFFREY BROWN: All right.

KATE MARTIN: No, they made it clear that legislation is not necessary for the telephone companies.

(CROSSTALK)

JEFFREY BROWN: All right, I do — we will end, but I want to say, there is a lot more there.

KATE MARTIN: Yes.

JEFFREY BROWN: And these are recommendations. So, these are going to be debated for some time.

MICHAEL LEITER: Exactly.

KATE MARTIN: Yes.

JEFFREY BROWN: We will come back to it.

Michael Leiter and Kate Martin, thank you both very much.

MICHAEL LEITER: Thank you.

KATE MARTIN: Thank you.