Michael V. Hayden And Michael B. Mukasey :NSA Reform That Only ISIS Could Love :The Misnamed USA Freedom Act is Exquisitely Crafted to Hobble the Gathering of Electronic Intelligence.
http://online.wsj.com/articles/michael-v-hayden-and-michael-b-mukasey-nsa-reform-that-only-isis-could-love-1416268847
For those charged with gathering the information our government needs to keep us safe, the news has been grim. Following the leaks by Edward Snowden beginning in June last year of highly classified intelligence gathering techniques, the former head of the National Counterterrorism Center, Matthew Olsen, disclosed in September that terrorists tracked by U.S. intelligence services have started encrypting their communications in ways that defeat detection, and that the government has lost track of several.
Meanwhile, Islamic State terrorists continue to rampage across Syria and Iraq, even as the group, also known as ISIS, uses sophisticated Internet communications to swell its ranks with recruits bearing U.S., Canadian or European passports who can easily slip back into their native countries and wreak havoc.
In that threat environment, one would think that the last thing on the “to do” list of the 113th Congress would be to add to the grim news. Yet Senate Majority Leader Harry Reid has announced that he will bring to the floor the extravagantly misnamed USA Freedom Act, a major new bill exquisitely crafted to hobble the gathering of electronic intelligence.
For starters, the bill ends the National Security Agency’s bulk collection of what is called telephone metadata. This includes the date, time, duration and telephone numbers for all calls, but not their content or the identity of the caller or called, and is information already held by telephone companies. The bill would substitute a cumbersome and untried process that would require the NSA, when it seeks to check on which telephone numbers have called or been called by a number reasonably associated with terrorist activity, to obtain a warrant from the Foreign Intelligence Surveillance Court, or FISA court, and then scurry to each of the nation’s telephone-service providers to comb through the information that remains in their hands rather than in the NSA’s.
Nothing in the bill requires the telephone companies to preserve the metadata for any prescribed period. Current Federal Communications Commission regulations impose an 18-month retention requirement, but administrative regulations are subject to change. It isn’t hard to envision companies that wish to offer subscribers the attraction of rapid destruction of these records, or a complaisant bureaucracy that lets them do it.
The bill’s imposition of the warrant requirement on the NSA would be more burdensome than what any assistant U.S. attorney must do to get metadata in a routine criminal case, which is simply to aver that the information is needed in connection with a criminal investigation—period.
Proponents say this change is necessary to allay fears that the NSA could use telephone metadata to construct an electronic portrait of an American citizen’s communications, and determine whether that person has, say, consulted a psychiatrist, or called someone else’s spouse. However, only 22 people at the NSA are permitted access to metadata, and only upon a showing of relevance to a national-security investigation, and they are barred from any data-mining whatsoever even in connection with such an investigation. They are overseen by a Madisonian trifecta of the FISA court, the executive and committees of Congress. Those people and everyone else at the NSA live in constant dread of failing to detect a terrorist attack. Nonetheless, the sponsors of the USA Freedom Act prefer the counsel of hypothetical fears to the logic of concrete realities.
This sensitivity to abstract concerns doesn’t stop at the water’s edge. Under the bill, if the FISA court directs any change, however technical, in the gathering of information from foreigners abroad, no information gathered before the change is implemented could be used before any official body in this country—agency, grand jury, court, whatever.
Back in the bad old days, as during World War II and the Cold War, intelligence of all sorts directed at protecting national security was gathered by the executive without supervision by judges who, after all, know nothing about the subject and cannot be held to account for adverse outcomes. After the Watergate scandal and the resignation of President Nixon, the FISA court was established in 1978 to provide oversight for intelligence gathering, in addition to that already provided by the executive and by Congress. Now, there are those who complain that the FISA court accedes too often to requests for government access to information, and does not appear to resemble a true court in that there is no public advocate opposing the government position.
But the nearly uniform success of the government before the FISA court is due both to the government’s careful restraint in presenting applications, and to pushback from the court itself—which results in the amendment of applications. Even when the government applies for wiretaps or search warrants in ordinary criminal cases there is no advocate opposing the application.
Nonetheless, this new bill would establish a permanent advocate appointed by the court to oppose the government’s applications before the FISA court. This provision has elicited an extraordinary written objection from a former presiding judge of the FISA court. U.S. District Judge John D. Bates points out that the presence of such an advocate, who cannot conceivably be aware of all the facts, would simply add to the burdens of the court and could wind up sacrificing both national security and privacy.
This bill redefines the FISA court, which was never meant to be an adversary tribunal and was imposed simply as an added safeguard in the 1970s, without regard to its history or its purpose. Worse, it is a three-headed constitutional monster: It is a violation of both the separation of powers principle and the Constitution’s appointments clause by having judges rather than the president appoint the public advocate, and then it has the advocate litigate against the Justice Department when both executive offices are supposed to be controlled by the president.
The bill is not an unrelieved disaster. It rightly allows for the expansion of metadata gathering to include more calls made by cellphones.
Not surprisingly, the bill has received the endorsement of President Obama ’s attorney general, Eric Holder , and his director of national intelligence, James Clapper, who in a Sept. 2 letter to the Senate Judiciary Committee said they were “comfortable” with the bill’s provisions—even as they conceded that the bill may have “additional impacts that we will be able to identify only after we start to implement the new law.”
If that calls to mind the Affordable Care Act and the suggestion that we should wait and find out what is in the bill until after it passes, bear in mind that “additional impacts” here may include holes in the ground where buildings used to stand and empty chairs where people used to sit.
There is no immediate or emergency need for this piece of legislation. Current surveillance authorities do not expire at the end of this year, which is fortunate given the current threats we face at home and abroad. The USA Freedom Act should await the attention of the Congress that will actually oversee it. A change to national-security procedures is not something to be rushed through in a lame-duck session.
Mr. Hayden, a retired Air Force general, is a former director of the Central Intelligence Agency (2006-09) and the National Security Agency (1999-2005). Mr. Mukasey is a former attorney general of the United States (2007-09) and a former U.S. district judge (1988-2006).
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