The surveillance review panel (feat. special guest James Clapper!) Obama announced on August 9th has taken shape. Four appointees have been named, and if this ends up being the totality of the panel, there's not much hope it will provide any sort of meaningful pushback on excessive or intrusive surveillance.
As the Washington Post reports, the four members of the panel are all Washington insiders.
[O]bama administration’s surveillance review panel will include former intelligence and White House staffers, including Michael Morell, Richard Clarke, Cass Sunstein and Peter Swire.
Morell is 33-year veteran of the CIA, who retired from his post just two weeks ago. Where he stands on privacy matters isn't exactly clear, but considering his former position as deputy director
, it would stand to reason he's more aligned with the NSA's thinking than the public's.
Richard Clarke is a long-time cyberwar hawk
, having served as the chairman of the Counter-Terrorism Security Group under George H.W. Bush, as well as a long stint on the National Security Counsel. Clarke has made recent pushes for more offensive cyberwar strategies and has generally contributed
to the FUD surrounding these issues.
On the plus side, he was highly critical of the second Bush administration's actions during his testimony
to the 9/11 Commission. That being said, he's really not in favor of scaling back surveillance efforts. Orin Kerr sums Clarke up this way in his piece on the surveillance panel
[I]n my experience working on some similar issues as he did in the government, Clarke had a reputation for seeing everything as an extraordinarily grave national security threat. I would think Clarke is likely to bring in a pro-government perspective on the issues here.
This brings us to Cass Sunstein
, who's a bit of a wildcard. Sunstein's written work tends to draw together a blend of constitutional law, behavioral science and economics, often reaching some very interesting conclusions. But what's most concerning about Sunstein's appointment is the views he expressed in a 2008 paper
co-authored with Adrian Vermule, where he argued that the government should be paying more attention to those spreading conspiracy theories
"The existence of both domestic and foreign conspiracy theories, we suggest, is no trivial matter, posing real risks to the government’s antiterrorism policies, whatever the latter may be." They go on to propose that, "the best response consists in cognitive infiltration of extremist groups"...
Glenn Greenwald has more on Sunstein's paper
in his 2010 piece for Salon.com
Sunstein advocates that the Government’s stealth infiltration should be accomplished by sending covert agents into “chat rooms, online social networks, or even real-space groups.” He also proposes that the Government make secret payments to so-called “independent” credible voices to bolster the Government’s messaging (on the ground that those who don’t believe government sources will be more inclined to listen to those who appear independent while secretly acting on behalf of the Government). This program would target those advocating false “conspiracy theories,” which they define to mean: “an attempt to explain an event or practice by reference to the machinations of powerful people, who have also managed to conceal their role.”
This would be designed to increase citizens’ faith in government officials and undermine the credibility of conspiracists.
Whatever you may personally think about conspiracy theorists and the potential dangers they pose, it's hard to believe that government infiltration and propagandizing is the correct response. (It's somewhat hard to argue this sort of activity actually requires
a response from the government at all.) Having someone with an inclination towards government-led espionage activities aimed at its own citizens on a surveillance review board isn't exactly a comforting thought.
The final name on the list, Peter Swire
, may be the only appointee to take on an actively adversarial role. Swire has long been an advocate for privacy, having served as the Chief Counselor for Privacy in the Office of Management and Budget (OMB) during the Clinton administration.
More recently he has been very active working to achieve a global "Do Not Track" standard
and has, over the past several years, written articles
and given interviews
critical of the agency's activities, including co-signing an amicus brief arguing
that the NSA's telephone metadata program is illegal. He's also been a longtime critic
of parts of the PATRIOT Act. If anyone's going to be advocating for privacy, it's probably going to be Swire. Unfortunately, this may leave him as the odd man out.
On top of that, this board, composed mainly of government and surveillance proponents, will be reporting directly
to confirmed liar
James Clapper (the administration phrases it "reporting through
") who is or isn't directly involved with the appointment process, depending on how you define the word "establish."
I guess one (or 1.5, depending on Sunstein's contribution) out of four is better than nothing. But by selecting intelligence officials and former administration staff members, Obama is (once again) sending the message that the "debate" will be still be very tightly controlled.