Latest Addition To Surveillance Review Board Doesn't Address Technology Issue But May Provide Another Adversarial Perspective

Overhype

from the 'mostly-not-bad'-is-probably-the-best-we-can-hope-for dept

Another name has been added to the so-called “Surveillance Review Board,” which is stocked with mainly sympathetic insiders. (The one exception is Peter Swire, who has previously argued against both the PATRIOT Act and the NSA’s phone metadata program.) The new addition is University of Chicago law professor Geoffrey Stone.

Emptywheel points out one of the main problems with the composition of this group: there’s not a single technologist included, something that’s a problem when the FISA court is relying on the NSA’s own “depictions” of its processes. From the president’s statement as quoted at Emptywheel:

These individuals bring to the task immense experience in national security, intelligence, oversight, privacy and civil liberties. The Review Group will bring a range of experience and perspectives to bear to advise the President on how, in light of advancements in technology, the United States can employ its technical collection capabilities in a way that optimally protects our national security and advances our foreign policy while respecting our commitment to privacy and civil liberties, recognizing our need to maintain the public trust, and reducing the risk of unauthorized disclosure.

So in spite of the fact that the White House highlights technology in its mandate, that didn’t lead them to find even a single technologist.

Technology moves at a pace much faster than the oversight (Congress, the FISA court) can parse it. Several of our representatives have, over the years, spoken proudly of their technical ineptitude. The FISA court, which grants the NSA broad, sweeping court orders, has stated that it relies heavily on the NSA’s explanations of its programs — which is pretty much admitting that it nods along with brow furrowed while an agent speedily clicks through a Powerpoint en route to securing a rubber stamp on the latest request.

Beyond the technical limitations of the group, Geoffrey Stone also brings with him an attitude seemingly predisposed against people like the man who started this all in motion — Ed Snowden.

Here’s a quote dug up by emptywheel, from an article written for the Huffington Post by Stone in June.

[W]hat should Edward Snowden have done? Probably, he should have presented his concerns to senior, responsible members of Congress. But the one thing he most certainly should not have done is to decide on the basis of his own ill-informed, arrogant and amateurish judgment that he knows better than everyone else in government how best to serve the national interest. The rule of law matters, and no one gave Edward Snowden the authority to make that decision for the nation. His conduct was more than unacceptable; it was criminal.

Reported it to which “senior, responsible” members of Congress? Mike Rogers? Other members of the Intelligence Committee — the same ones who withheld information from their fellow Congress members? All that would have done is guaranteed the NSA’s abuses would remain uncovered.

An interview Stone gave on June 13th (pointed out by Orin Kerr at The Volokh Conspiracy) pulls back a slight bit from his initial take, while still retaining the assertion that Snowden is a criminal — and should be punished as one.

Well, there is a federal statute that makes it a crime for public employees who have been granted access to classified information to reveal that information to persons who are unauthorized to receive it. So, from a simple, straightforward, technical legal standpoint, there’s absolutely no question that Snowden violated the law. And from that standpoint, if he’s tried, he will be convicted, and he is in fact, from that perspective, a criminal. Whether one admires what he did is another question, but it doesn’t have anything to do with whether or not what he did was unlawful.

[T]he fact is, he’s just an ordinary guy with absolutely no expertise in public policy, in the law, in national security. He’s a techie. He made the decision on his own, without any authorization, without any approval by the American people, to reveal classified information about which he had absolutely no expertise in terms of the danger to the nation, the value of the information to national security. That was a completely irresponsible and dangerous thing to do. Whether we think it was a positive thing in the long run or not is a separate question, but it was clearly criminal.

Later in the interview, Stone pointed out that what Snowden had exposed to that point was above board.

[T]here is, so far as I can tell from everything that’s been revealed [by Edward Snowden], absolutely nothing illegal or criminal about these programs. They may be terrible public policy—I’m not sure I approve of it at all—but the fact is the claim that they’re unconstitutional and illegal is wildly premature.

Sadly, that part is true. Most of what’s been exposed is legal, as far as the courts have determined the protections of the Fourth Amendment. Additionally, various behind-the-scenes laws and interpretations have allowed the NSA to extend its reach without committing criminal acts.

Then there’s this bit, which is rather troubling, but syncs up nicely with the narrative the NSA’s defenders have been pushing.

Let me make another point about civil liberties here, by the way, that it’s extremely important to understand that if you want to protect civil liberties in this country, you not only have to protect civil liberties, you also have to protect against terrorism, because what will destroy civil liberties in this country more effectively than anything else is another 9/11 attack. And if the government is not careful about that, and if we have more attacks like that, you can be sure that the kind of things the government is doing now are going to be regarded as small potatoes compared to what would happen in the future. So it’s very complicated, asking what’s the best way to protect civil liberties in the United States.

This just isn’t true, at least not in the sense that trimming civil liberties is the only response to a large-scale terrorist attack. Allowing the reaction to the 9/11 attacks to set the precedent for future reactions is a terrible idea. But Stone is right about this: the government reacted that way once, rushing the PATRIOT Act through the legislative process, and there’s very little to indicate that future representatives won’t overreact this way in the future.

Ultimately, though, Stone’s argument relies on accepting the claims of intelligence agencies at face value: that what they do prevents terrorism. And if you buy that, then the agencies win.

Going beyond this issue, other writings by Stone suggest that he may more often side with odd-man-out Peter Swire than with the administration when it comes to reining in the NSA. Here’s a particularly relevant quote from his piece on the FISA court, which he unfortunatley sets up with a rather lame “it could be worse” argument:

It is important to note, though, that without the existence of a FISA court to which Executive Branch officials are answerable, there is little doubt that the NSA and the FBI would be authorizing all sorts of investigations that would not meet the standards now imposed by the FISA court. In that sense, the existence of the FISA court plays a critical role.

Second, there are major deficiencies in the way the FISA court now operates. When the judges on the FISA court review the government’s submissions, there is no one on the other side to advocate against the arguments of the government… In practical effect, there is no opportunity for adversarial review in the FISA context.

There is a simple — and necessary — solution. Whenever the government seeks a warrant from the FISA court, an independent government lawyer, with a security clearance, should have the responsibility of arguing the other side. In a sense, this would be something like a public defender’s office, where the “client” is not only the target of the proposed surveillance (who would know nothing about what is happening), but also the national interest in reaching the best outcome in these matters. Our legal system is premised on the merits of adversarial presentation of arguments, and there is no good reason why the FISA process should not adopt that model.

An adversarial model has been suggested several times, but those opposed to this suggestion often choose to frame approved requests as the equivalent of search warrants — a process that is also non-adversarial. But Stone punctures that thinking by noting that regular search warrants are subject to post-facto litigation if the targets feel there’s been abuse of the process. As it stands right now, subjects of NSA surveillance and National Security Letters simply don’t have that option.

Stone also makes some good points on the balance of privacy and security in an article written shortly after the Boston Bombing.

[W]here the government is involved, there is a special dimension to the right of privacy. If the government could learn everything it wants about every one of us, it would be difficult if not impossible for citizens to keep in mind that the government works for them, rather than the other way around. The right of privacy is thus an essential element is preserving the citizen’s own sense of dignity and autonomy vis a vis the government. This is critical to maintaining a system of political self-governance. Indeed, it is for these reasons that the Fourth Amendment expressly guarantees “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures…”

Here, I think it is important to consider what I have called the principle of conservation of privacy. With the development of technology, the government has a much greater ability to learn things about us than it could in past. As a practical matter, it was impossible for the government to follow all of our actions in public all the time. That gave us a sense of security and normalcy that in all likelihood the government was not monitoring our every movement and activity. This gave us a certain freedom to move about in public without having to worry that “Big Brother” was watching. A network of pervasive surveillance cameras would destroy that freedom. It therefore, it my view, does intrude upon a reasonable expectation of privacy, as it existed in the past.

His suggestion? Install the cameras if you must, but make the recordings only available via a search warrant.

And, finally, here are a few thoughts from Stone on government secrecy, another post written shortly after Snowden’s first leak hit.

[I]n a self-governing society, government secrecy is presumptively illegitimate. Our elected representatives are just that — our representatives — and we are entitled to know what they do in our name. This is at the very heart of self-governance.

The notion that we should blindly “trust” our public officials to do what is best for us is naïve, reckless and irresponsible. Such an approach invites illegitimate, inefficient and self-interested governance. Even well-meaning public officials make bad policy decisions because of political and personal self-interest.

Indeed, if government officials are permitted to keep their actions secret from the American people, all sorts of mischief is possible. Human nature being what it is, we can be sure that, in the long run, secrecy can — and will — be used by public officials (who are no better or worse than the rest of us) to hide stupidity, corruption, partisan abuse, discrimination, ineptitude, and outright criminality…

The problem is that, in the real world, government officials, like all of us, often have mixed motives for our actions. Sorting them out is extraordinarily difficult. Nonetheless, because of the demands of a self-governing society, we should operate on the assumption that government secrecy is presumptively illegitimate and that the government should be legally authorized to act in secret (this includes classifying information) only when there is a clear and overriding justification for secrecy. This requirement should be taken seriously.

Stone’s take on Snowden notwithstanding (but not entirely notwithstanding because he’s the reason this board is even being formed), his general stance on privacy, secrecy and the government leans more towards a civil libertarian perspective than towards the administration. Adding another dissenting opinion will help balance this board a bit, but ultimately the findings will end up being filtered by a very pro-NSA James Clapper before being routed to an administration predisposed towards taking the NSA’s side.

Filed Under: ed snowden, geoffrey stone, james clapper, nsa surveillance, peter swire, surveillance, surveillance review board