Devil’s Advocate

Here’s Who Should Watch the Watchmen

Oversight today focuses on whether agencies like the NSA break the rules, but we need to ask if the rules themselves should be reconsidered.

Matt Cardy/Getty

As a member of the President’s Review Group on NSA surveillance, I had a rare opportunity last fall to observe and evaluate the various mechanisms our government uses to oversee the activities of our nation’s intelligence agencies. At the structural level, I was impressed with the variety and range of oversight mechanisms in place.

The National Security Agency’s activities, for example, are overseen by the NSA’s Inspector General, the Director of National Intelligence, the Foreign Intelligence Surveillance Court, the Department of Justice, the Privacy and Civil Liberties Oversight Board, and the Senate and House Intelligence Committees. Each of these entities is responsible for reviewing various aspects of the NSA’s operations.

Cumulatively, I found that these oversight mechanisms work reasonably well when it comes to ensuring that the NSA properly implements the authorities it has been given. In those instances in which the NSA overstepped its bounds, these entities were generally quick to respond.

To cite just one example, in 2009 the Foreign Intelligence Surveillance Court (the FISC) learned that the NSA had misapplied a legal standard, resulting in improper access to telephone metadata. Although finding that the noncompliance had been unintentional, the FISC nonetheless prohibited “the government to access the data collected until such time as the government is able to restore the Court’s confidence that the government can… comply with [the] approved procedures for accessing such data.” The FISC finally lifted this restriction six months later, only after the NSA had demonstrated to the court’s satisfaction that the causes of the noncompliance had been corrected and that additional safeguards had been instituted.

This is but one example of this type of oversight, but it reflects the seriousness with which the various entities engaged in this process undertake their responsibilities. On balance, they seem to do a reasonable job of ensuring that the intelligence agencies comply with their legal authorities.

I was less impressed, though, with oversight of a different sort. Once the government, whether the Executive Branch, the Congress, or the FISC, authorizes the intelligence agencies to undertake certain types of surveillance, there is, in my judgment, insufficient attention to whether the programs instituted under those authorities can and should be refined and improved over time.

This sort of retrospective oversight—constantly evaluating and re-evaluating programs to ensure that they are properly designed to respect competing interests in individual privacy and civil liberties—is absolutely essential. The issue here is not whether the intelligence agencies are violating the rules, but whether the rules themselves should be reconsidered.

There is a natural and understandable temptation in the realm of national security to err on the side of granting broad rather than narrow powers to our intelligence agencies, especially in the wake of a crisis. But the reality of this temptation makes it especially important that there be rigorous, ongoing scrutiny of the programs that have been authorized, because with experience it will often be possible to identify ways in which those programs can be refined and narrowed in order to strike a better balance between the interests of national security and individual liberty.

That, indeed, was the central theme of the Review Group’s 46 recommendations. What we found, in program after program, was that significant refinements could and should be made that would better protect personal privacy and individual freedom without unduly interfering with the capacity of these programs to keep our nation safe.

The fact that an extraordinary and ad hoc institution like the Review Group was necessary to bring these recommendations—many of which have already been accepted by the President—to the fore, suggests quite strongly that existing oversight mechanisms were not performing this function adequately. That must change in the future.

To that end, I offer three suggestions.

First, the Senate and House Intelligence Committees must be staffed by individuals who have deep experience and strong credibility within the intelligence agencies. It quickly became apparent to me that the Review Group would never have been able to do our work successfully if two of our members—Michael Morell and Richard Clarke—had not been deputy director of the Central Intelligence Agency and counter-terrorism adviser on the National Security Council, respectively.

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The congressional intelligence committees lack such expertise. If they are to fulfill their responsibilities effectively, they need access to similar expertise and credibility. Indeed, as several members of these committees made clear to me during the review process, the House and Senate Intelligence Committees, as currently staffed, cannot effectively comprehend and oversee the vast complexities of the intelligence community. That needs to change.

Second, the 9/11 Commission recommended the creation of what is now the Privacy and Civil Liberties Oversight Board (the PCLOB), an independent agency in the Executive Branch designed to conduct oversight of intelligence agency activities and to make recommendations to Congress and the Executive Branch about how to improve privacy and civil liberty protections. Unfortunately, the PCLOB has been given too narrow a focus, too few resources, and too little authority to do its job effectively.

The Review Group therefore recommended the creation of a new agency (to replace the PCLOB) that would have a broader focus, more resources, and greater authority to fulfill the essential functions of reviewing and overseeing the activities of the intelligence agencies and reporting regularly on those activities, in both classified and unclassified forms, to both Congress and the public. That recommendation is essential. It should be acted upon immediately.

Third, given the importance of ongoing oversight of our foreign intelligence activities, and the need for a fresh set of eyes to review and analyze these programs periodically to ensure that they strike the right balance between security and liberty, every five years the President should appoint a review group, similar to the one President Obama appointed last fall.

By bringing an independent and clear-eyed perspective to the task, such a review group can see problems and identify solutions that may be invisible to those who are too close to the programs themselves. In a realm that of necessity operates in secret, such an outside perspective is critical to the government’s ability to identify significant, though not always obvious, opportunities for reform.

If there is one lesson to be learned from the reforms now being debated and implemented with respect to the activities of our intelligence community, it is that constant, rigorous, and independent review is essential if we are to strike the proper balance between liberty and security in a changing world. That way, we won’t have to depend on the Edward Snowdens of the world to bring such issues to our attention.