Doubts raised about independence of White House panel on NSA privacy

09/07/2013 11:19 AM

09/09/2013 3:53 AM

President Barack Obama has announced the names of the five members of a task force to examine the National Security Agency’s controversial collection of Internet and cell phone records, but privacy and open government advocates say they don’t believe the panel is likely to be very critical of the NSA program.

At the time Obama announced the panel’s creation Aug. 9, anger at the extent of the NSA collection efforts was at its height, and the president’s move was intend to calm growing congressional calls for curbs on the program. Obama said the panel would be made up of outside experts and would review the government’s use of its intelligence-gathering capabilities and whether it adhered to constitutional standards.

“The review group will assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust,” a White House memorandum on the panel said.

But advocates note that four of the five people named to the panel last week have long histories in government or in the intelligence community, and they said that made it unlikely the panel would be critical of the government’s practices when it completes its required final report, which is due on Dec. 15.

Steven Aftergood, director of the Federation of American Scientists’ project on Government Secrecy, said even the panel’s assignment misses the major concerns that have been expressed about the NSA programs, which had been kept largely secret from the public until their extent was leaked in June by fugitive former NSA contractor Edward Snowden.

“Basically, they’re saying, ‘Well how can we optimize surveillance while taking privacy in to account?’ Aftergood said. But what people really want to know is whether the NSA violates the law and the Constitution, he added. “I’m not sure that that sense of urgency has been adequately communicated to the review board.”

The administration’s announcement of the panel in August sparked controversy, when statements released by the White House suggested that Director of National Intelligence James Clapper would lead the inquiry. Obama later denied that Clapper would have a hand in the panel, which the president had insisted would be “independent” of the administration.

But although Clapper will not lead the review, four of the panel’s five members have direct ties to the executive branch and its intelligence gathering apparatus.

Michael Morell is the former deputy director of the Central Intelligence Agency. Richard Clarke is the former national coordinator for security, infrastructure protection, and counter-terrorism and served as a counter-terrorism and security adviser in the administrations of presidents George H.W. Bush, Bill Clinton, and George W. Bush. Peter Swire served as chief privacy counsel for the Office of Management and Budget under President Clinton.

Cass Sunstein, a law professor at Harvard University, is reportedly a close friend of the president and was formerly administrator of the White House Office of Information and Regulatory Affairs, which oversees the policies of executive agencies.

The panel’s fifth member is Geoffrey Stone, a law professor at the University of Chicago and an expert conflicts between constitutional rights and national security. He joined the faculty of the law school in 1973, two years after he received his law degree.

“It’s notable that several members of the board have strong ties to the intelligence community or the administration,” said Jameel Jaffer, who directs the American Civil Liberties’ Union’s Speech, Privacy & Technology Project. “On the whole, it does seem a bit of a stretch to call this an independent board.”

Aftergood said he shared that concern. Noting that the membership is dominated by “former executive branch officials” he said he doubted that it “represents the full spectrum of criticism and concern facing the program.”

What role the intelligence community has in the panel’s work also remains a concern. Swire, who is now on the faculty of the Georgia Institute of Technology, was reached at a phone number listed on his website. But he declined a request for an interview and referred a reporter to Clapper’s press office.

Still, Aftergood said, low expectations could offer an opportunity to the board’s five members.

“The panel itself may actually benefit from the low expectations it has inspired.,” he said. “It now may be easier for the panel to do a better job than lots of people expect.”

Even if the panel does identify necessary changes, Jaffer said, the panel has no clear authority to make those changes happen.

“What powers does this board have at the end of the day?” he said. “This panel doesn’t have the power to oversee the government’s surveillance activities, it doesn’t have the power to narrow surveillance laws even if the board were much more independent than it seems to be, there’s still this larger question of what function the board can actually serve.”

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