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Surveillance Oversight Should Be President-Proof, But We’re Still a Long Way Off

Last week, at an event co-hosted by Just Security and NYU’s Brennan Center for Justice, the NSA’s Civil Liberties and Privacy Director Rebecca Richards dropped the ball. When asked whether Americans should be comfortable with our current surveillance regime should someone like Donald Trump become president, she gave a milquetoast answer obviously intended to comfort the uninitiated. But in doing so, she revealed a serious deficit in our legal system.

Richards went on for a few minutes about how valuable it is to have someone like her “inside the building” having conversations about civil liberties and privacy with other NSA folks because it can be uncomfortable talking to outside overseers about the implications of what they are doing. Then she made a passing reference — before an audience of surveillance experts — to the “layers of accountability” provided by the Office of the Director of National Intelligence, the Justice Department, the Privacy and Civil Liberties Oversight Board, and Congress.

Seriously?

History tells us that up against a determined adversary from within the most powerful office in the world, America’s surveillance safeguards are anemic, barely bumps in the road. What about oversight has changed since 2001 that would stop another president from starting a new StellarWind?

Kurt Eichenwald’s 500 Days: Secrets and Lies in the Terror Wars tells the story of how the Bush administration initiated StellarWind, an illegal domestic spying program, by manipulating Executive Branch agencies under the president’s command and without answering to judges or Congress. Bush, unlike Nixon or Trump, wasn’t acting politically. He had the legitimate motivation of protecting the country. Nevertheless, he hid StellarWind from even national security officials in his own administration, never mind from Congress. And think how much craftier Bush would have been at hiding his steps from “oversight” if his surveillance goals were Trump’s — to identify accused terrorists’ families to be killed in retaliation or to make a short list of candidates for waterboarding.

Here’s some of what the Bush administration did. Attorney General John Ashcroft only learned about StellarWind a few days after Bush had already okayed it and the spying had begun. Then, despite the fact he was the lead law enforcement officer of the nation, Attorney General Ashcroft conducted no legal research to verify the President’s conclusion that the domestic dragnet collection was acceptable. The President had “just shoved [the order] in front of me and told me to sign it,” Ashcroft said. Ashcroft didn’t rock the boat, and he didn’t delay. He just signed it.

When Dick Cheney and David Addington, the architects of StellarWind wanted more legal cover, they went to John Yoo at the OLC. The OLC is supposed to provide legal and constitutional advice to the White House on some of the most delicate questions arising in the conduct of Executive Branch business. It is incredibly powerful, because OLC opinions can immunize officials from liability even for illegal activity. That’s why they have to be exceedingly cautious — they are essentially giving the president a Get Out of Jail Free card.

But Yoo’s work wasn’t vetted through other OLC lawyers, as was the usual policy, nor was anyone at NSA allowed to see the StellarWind opinion he wrote. It was kept, along with other OLC memos approving extraordinary rendition (kidnapping), waterboarding, and other torture techniques, in a locked safe.

With the approval of junior attorney Yoo tucked away, the White House then went to the lawyers at the NSA. It was supposed to be baked into the NSA’s very DNA that you do not spy on Americans. But Cheney and Addington assured the NSA lawyers that there was a legal basis for the dragnets, signed off on by the OLC. Apparently, no one wanted to go against the White House. So rather than do their own legal analysis, the NSA attorneys decided to accept the White House’s assurance on faith and go along. After all, StellarWind was up and running. Were they going to stop a program that the president had already approved and said was necessary? The NSA legal counsel didn’t even get to read the OLC memo. Addington just read the lawyer the parts he thought were relevant over the phone, and put the damned thing back into his safe.

Those comfortable conversations with the Civil Liberties and Privacy Officer aren’t going to stop people at the NSA from implementing improper spying programs at the president’s behest. Richards won’t even be cleared to know. Nor is the valiant PCLOB, with its meager budget and non-existent subpoena power, likely to make up for the roles that the Attorney General, the Office of Legal Counsel, the NSA General Counsel, the Intelligence and Judiciary Committees, and the rest of Congress are supposed to (but have previously failed) to play.

Nothing has changed that will stop a president with a mission. The president isn’t required to inform Congress or the PCLOB if she changes Executive Order 12333. She is not required by law to give Congress notice of or the opportunity to review new Presidential Policy Directives affecting surveillance. The FISA Court still has no role in supervising overseas spying, nor must the president inform Congress when she initiates new overseas spying programs. When Office of Legal Counsel opinions justifying surveillance proposals are written, Congress need not be told nor given a copy. If the DOJ changes minimization procedures or FBI guidelines, it is not required to inform Congress. Classification continues to get in the way of oversight. There is no punishment for people who violate the law at a president’s behest. And whistleblowers have less, not more, reason to believe they will be protected and not prosecuted if they come forward.

Becky Richards and the rest of the Intelligence Community owe the public the truth.

I have written in my forthcoming book, American Spies, that surveillance law should be President-Proof, exactly because someone like Trump could be — even has been — president. Rather than repeat the same comforting boilerplate, Richards should have been honest with the American people. Our laws are nowhere near ready for what might come next. And the election is only five months away.

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Much of great value has been written about the limitations of oversight:

  • Shirin Sinnar on the PCLOB’s resources and subpoena power (here)
  • Margo Schlanger on “Intelligence Legalism” (here, here, and here)
  • Chris Sprigman on how a culture of legal compliance can still break the law (here)
  • Jennifer Hoelzer on Congress, security clearances, and the difficulties of intelligence oversight (here)
  • Chris Sprigman and I wrote about aspects of StellarWind that violated the USA Patriot Act and FISA (here)
  • James Risen and Eric Lichtblau originally broke the story about StellarWind in 2005 (here)

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About the Author

is the Director of Civil Liberties at the Stanford Center for Internet and Society. Follow her on Twitter (@granick).