NSA changes recommended by Obama’s review group could politicize spy agency

Neil Munro | White House Correspondent

The president’s hand-picked intelligence review panel has submitted a list of recommendations that would politicize the leadership and the routine operations of the nation’s leading military intelligence agency.

The 46 recommendations urge the federal government to treat foreign enemies as courtroom-protected citizens, and would require the soldiers working at the National Security Agency to negotiate day-to-day decisions with an array of private-sector lawyers.

President Barack Obama met Wednesday with his five appointees on the Review Group on Intelligence and Communications Technologies, whose report was released late Wednesday afternoon.

Obama is expected to announce his preferred policies next month, but indicated his supported for much of the report. “The president noted that the group’s report represented a consensus view” of his five carefully selected advisors,” said an afternoon statement.

In his meeting with appointees, “the president again stated his expectation that, in light of new technologies, the United States use its intelligence collection capabilities in a way that optimally protects our national security while supporting our foreign policy, respecting privacy and civil liberties, maintaining the public trust, and reducing the risk of unauthorized disclosure.”

Controversy over the surveillance erupted after the release of many secret documents by a former contract employee, Edward Snowden. The controversy  impacts the NSA’s ability to collect intelligence, but has also undermined Obama’s political support among progressives, civil libertarians and younger voters, and among executives and donors in the information-technology industry.

The agency provides a huge stream of accurate, current and valuable information to policymakers, legislators, generals and battlefield commanders, top officials say. The provided information details foreign weapons, terror plots, Russian and Chinese hacking operations, political payoffs, troop movements, secret plans and the location of potential targets, financial assets and criminal profits.

If Obama does implement the new recommendations, he’ll tangle the NSA’s routine intelligence operations in many slow and expensive legal hearings that will reduce the scope and agility of U.S. intelligence collection efforts.

Some of the recommendations urge legislative changes, but the president — who is the commander in chief — can impose many of the proposed changes on the military agency without approval from Congress.

Obama’s appointees urged that future directors of the National Security Agency be approved by the Senate, and that future appointees should be civilians. But a switch to civilian appointees would ensure that trusted political allies of the president are assigned to run the nation’s primary intelligence agency, perhaps after a 51-vote majority vote in the Senate. Obama, however, has said he plans to appoint a general when the incumbent general retires.

The appointees said the NSA should be barred from storing so-called “metadata,” which shows which devices are communicating with each other via the phone networks and the Internet. Instead, the panel urged that the NSA request the metadata from another government agency, or from communications companies, such as Google or AT&T, after each request is reviewed by judges. If the data is held by companies, the recommendation would require those companies to store and share private data, even if they do not want to keep the data. To avoid the legal requirement, the companies could move their headquarters and their data offshore, or store it in a peculiar format that makes it difficult to use.

The appointees said that NSA’s requests for information from companies should be made public after six months. If implemented, the rule would create an incentive for companies to hire lawyers to fight any information-sharing with the NSA.

When the NSA is monitoring a “non-United States person who is located outside the United States,” such as a terrorist, drug-trafficker or corrupt banker, any information that is revealed about a United States contact or collaborator should be shielded unless the NSA can meet a civilian-type “probable cause” burden of proof, Obama’s appointees recommend. But that high burden of proof will prevent the intelligence agencies from following leads until they can build up enough other evidence to get approval from a judge.

In the months prior to September 2011, civilian-style legal protections deterred and slowed U.S. investigations into a Moroccan jihadi training to be a pilot. He was arrested prior to the attack, but his laptop was not examined until after the attack.

Recommendation No. 14 urges Obama to provide U.S. privacy rights to all foreigners living in foreign countries, whether Sweden or Afghanistan, Costa Rica or Iran. “We recommend that, in the absence of a specific and compelling showing, the U.S. Government should follow the model of the Department of Homeland Security, and apply the Privacy Act of 1974 in the same way to both U.S. persons and non-U.S. persons,” said the report. If implemented, that recommendation would cripple military intelligence gathering.

Whether the proposed civilianization or politicization of the NSA will be controversial remains to be seen.

When civilian laws — such as civilian rules of evidence — are applied to military scenarios, they’re likely to be bent and gradually reduced to meet political requirements, such as a guilty verdict in a high-profile national security trial like the trial of a 9/11 plotter.

When intelligence agencies are run by civilians, they’re also more vulnerable to partisan political pressures. In 2004, for example, top CIA officials sympathetic to the Democratic Party allowed a senior CIA official to publicly criticize the country’s president, George W. Bush.

The NSA is now run by career soldiers who answer to other soldiers and to top government officials, including the president.

That’s a contrast to the Internal Revenue Service, where top civilian officials — including some who formerly worked for the Democratic Party — targeted the president’s political enemies throughout the 2012 election campaign. Obama recently denounced the suppression campaign as a media myth, and the FBI has not yet interviewed any of the victims.

Tuesday, Obama met with top executives at 15 high-tech companies who want the government’s surveillance programs to be reduced.

The companies included both Google and Facebook, which collect huge amount of data about most Americans’ private and legal online activities. Nearly all of the political donations made by the companies’ executives go to Democratic candidates.

The NSA review report also urged that the NSA stop collecting secret weaknesses in commercial software programs, such as those developed by the 15 companies and used by foreign banks and governments. Those weaknesses are collected and used by the NSA to covertly penetrate foreign computer networks to gather information. Instead, the NSA should act like a software-testing subcontractor and help the companies by telling them about software gaps in their products, the report says.

However, the report also says the NSA should not provide any data to companies that would help their commercial operations. The report is also silent on what the NSA should do when it finds a vulnerable gap in software developed by a U.S. company that is mostly owned by foreign investors.

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