New York Times
POSTED: 01:30 a.m. HST, Dec 13, 2013
WASHINGTON » A presidential advisory committee charged with examining the operations of the National Security Agency has concluded that a program to collect data on every phone call made in the United States should continue, although under broad new restraints that would be designed to increase privacy protections, according to officials with knowledge of the report's contents.
The committee's report, the officials said, also argues in favor of codifying and publicly announcing the steps the United States will take to protect the privacy of foreign citizens whose telephone records, Internet communications or movements are collected by the NSA. But it is unclear how far that effort would go, and intelligence officials have argued strenuously that they should be under few restrictions when tapping the communications of non-Americans abroad, who do not have constitutional protections under the Fourth Amendment.
The advisory group is also expected to recommend that senior White House officials, including the president, directly review the list of foreign leaders whose communications are routinely monitored by the NSA. President Barack Obama has apologized to Chancellor Angela Merkel of Germany for the NSA's monitoring of her calls over the past decade, promising that the actions had been halted and would not resume. But he refused to make the same promise to the leaders of Mexico and Brazil.
Administration officials say the White House has already taken over supervision of that program.
"We're not leaving it to Jim Clapper anymore," said one official, referring to the director of national intelligence, who appears to have been the highest official to regularly review the programs.
But resistance from the intelligence agencies is likely. In an interview two months ago, Gen. Keith B. Alexander, the soon-to-retire director of the NSA and the commander of the military's Cyber Command, suggested that a major cutback in U.S. spying on foreign nationals would be naive. And officials who have examined the NSA's programs say they have been surprised at how infrequently the agency has been challenged to weigh the intelligence benefits of its foreign collection operations against the damage that could be done if the programs were exposed.
One of the expected recommendations is that the White House conduct a regular review of those collection activities, the way covert action by the CIA is reviewed annually.
Another likely recommendation, officials say, is the creation of an organization of legal advocates who, like public defenders, would argue against lawyers for the NSA and other government organizations in front of the Foreign Intelligence Surveillance Court, the nation's secret court that oversees the collection of telephone and Internet "metadata" and wiretapping aimed at terrorism and espionage suspects. Obama has already hinted that he objects to the absence of any adversarial procedures in front of the court's judges.
The advisory report offers the first signs that the revelations by Edward J. Snowden, the former NSA contractor who took thousands of documents from the agency's archives and has given some of them to news organizations, may lead to changes in the programs he exposed. Although Snowden has been widely condemned in Washington for violating his oaths to protect secrets, and for taking up asylum in Russia instead of facing prosecution, it now appears likely that his disclosures will lead to the result he told interviewers he was seeking.
Caitlin Hayden, a National Security Council spokeswoman, declined to discuss any specific recommendations of the panel.
"Our review is looking across the board at our intelligence gathering to ensure that as we gather intelligence, we are properly accounting for both the security of our citizens and our allies, and the privacy concerns shared by Americans and citizens around the world," she said. "We need to ensure that our intelligence resources are most effectively supporting our foreign policy and national security objectives — that we are more effectively weighing the risks and rewards of our activities."
She added that the review was especially focused on "examining whether we have the appropriate posture when it comes to heads of state; how we coordinate with our closest allies and partners; and what further guiding principles or constraints might be appropriate for our efforts."
The five-person advisory group of intelligence and legal experts, several of whom have long connections to Obama, is expected to deliver its lengthy, unclassified report to the White House by this weekend. Among its members are Richard A. Clarke, who served in the Clinton administration and both Bush administrations and has become an expert on cyberconflict; Michael J. Morell, a former deputy director of the CIA; and Cass R. Sunstein, a Harvard Law School professor who served in the Obama White House and is married to Samantha Power, the ambassador to the United Nations.
Two leading legal academics are also members: Peter Swire, an expert in privacy law, and Geoffrey R. Stone, a constitutional law expert and a former dean of the University of Chicago Law School, where Obama once taught.
Members of the advisory group have declined to talk about their recommendations until the report is published. But fragmentary accounts of their main conclusions have begun to seep out, as word has spread of a preliminary briefing they gave to Obama's top advisers. Two officials said that the advisers had gone further to challenge the intelligence agencies' ways of doing business than they had expected.
"There's going to be a lot of pushback to some of their ideas," said one person familiar with the contents, who declined to go into detail. Another said that the report was "still being fine-tuned," and that elements of the recommendations may change.
As a senator, Obama was critical of the George W. Bush administration's efforts to extend the NSA's surveillance powers, but as president he has embraced most of the programs begun during Bush's time, including the bulk collection of telephone metadata. Only one major NSA program, involving the bulk collection of metadata from about 1 percent of all emails sent inside the United States, is known to have been ended during Obama's presidency.
Once it is delivered to the White House, the report is expected to feed into another review being conducted by national security officials across the administration.
Obama has indicated that he plans to announce a range of changes, although officials say that is not likely to happen until early next year. At some point, officials say, the advisory group's entire report will be made public.
In an interview last week on MSNBC, Obama said that "I'll be proposing some self-restraint on the NSA and, you know, to initiate some reforms that can give people more confidence." But he gave no details.
Obama asked the advisory group to determine whether the NSA had overreached, putting new programs in place because it had the technological capability, rather than weighing the costs to privacy.
"What's coming back is a report that says we can't dismantle these programs, but we need to change the way almost all of them operate," said one official familiar with the advisory group's instructions.
So far, the intelligence agencies have largely opposed most proposals for major changes in the programs that they developed after the Sept. 11, 2001, attacks. For example, Alexander has told Congress that it would not be possible to dismantle the bulk collection of data about U.S. telephone calls until there was an efficient way to search quickly for data held by communications companies like AT&T and Verizon. Many of those companies do not retain the information for more than 18 months and say they do not want to take on the burden and legal liabilities of holding it longer.
But Alexander suggested in the interview two months ago that it may be several years before the United States could develop technology that would make it unnecessary for the government to amass that data in its own storage sites.