After the President issued a directive to DNI James Clapper to "establish" an NSA review group, many people criticized the President's choice. The idea that Clapper, who admits misleading Congress about surveillance programs, might have any control over the review was upsetting to many. The next day, the White House denied that Clapper would lead the group and said it would select the members. Critics were then accused of reading too much into the President's directive and of over-reacting.
Intelligence Community Directive Number 111 suggests the criticism was justified.
In a memo issued Monday, the President stated:
I believe it is important to take stock of how these technological advances alter the environment in which we conduct our intelligence mission. To this end, by the authority vested in me as President by the Constitution and the laws of the United States of America, I am directing you [DNI Clapper] to establish a Review Group on Intelligence and Communications Technologies (Review Group).
The Review Group will assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust. Within 60 days of its establishment, the Review Group will brief their interim findings to me through the Director of National Intelligence (DNI), and the Review Group will provide a final report and recommendations to me through the DNI no later than December 15, 2013.
Late Tuesday, after much criticism of the directive,
The Hill reported that White House was now saying that "Director Clapper will not be a part of the group, and is not leading or directing the group's efforts."
"The White House is selecting the members of the Review Group, consulting appropriately with the Intelligence Community," she said, adding that the administration expects to announce the members of the group soon. - The Hill
Immediately afterward, allegations began flying that critics of the directive unfairly read too much into the directive.
It takes a pretty liberal reading of a rather perfunctory note to assume that Obama had already failed on his promise of transparency. In truth, we know nothing about the commission, its participants, or the authority it will have. - Gregory Ferenstein
Apparently, that's not the case.
When a president directs a senior government official to take action, he has to take into consideration the authorities Congress gave to that official. Typically, authorities are further detailed via implementing regulations and departmental directives. The National Security Act (as amended) authorizes the Director of National Intelligence to conduct reviews and to establish procedures. Intelligence Community Directive Number 111, signed by DNI James Clapper, describes the procedures his office follows in conducting reviews under that authority.
It is fair to expect that the DNI would follow those procedures absent any public notification that the procedures would be altered. And, notably, the original directive gave no indication that those procedures had been changed. The procedures under ICD-111 for conducting a Full Review include the following (emphasis added):
[3] a. The members of a Full Review Board shall be selected by the DNI from among the senior career staff of the IC with relevant expertise on subjects related to the inquiry and may also include fonner IC personnel or outside experts with relevant background and expertise. Service on a Full Review Board shall be temporary and an additional duty for each selected individual. Board members shall not participate on the Board in circumstances where conflict of interest or bias would interfere with the member's ability to participate objectively. A Full Review Board should include at least one member from the applicable IC element or Department, selected by the DNI from candidates provided by the applicable IC element head or Department head. The Chair of the Full Review Board shall be the PDDNI or individual acting in that capacity. The ODNI Principal Deputy General Counsel shall provide legal advice and counsel to the Full Review Board as necessary. All Board members must either have a current security clearance or a limited security approval from the applicable agency.
Importantly, the PDDNI and the ODNI Principal Deputy General Counsel answer to the DNI.
The ICD-111 also states:
d. Upon receipt of the Full Review Board's submissions described in paragraph E.3.c above, the DNI may make a recommendation to the applicable IC element head as required by Section 102A(f)(7) of the National Security Act. The DNI has discretion to accept or reject the recommendation of the Full Review Board.
e. The DNI may terminate the activity of a Full Review Board at any time.
In the current environment, the DNI may be discouraged from implementing that authority. Nevertheless, he has it.
It is not clear why the President used the words "Review Group" rather than "Review Board." My research has turned up no mention of authorization or procedures for a "Review Group": but the Review Board procedures are consistent with the procedures mentioned in the President's August 12 directive. Also, the procedures are consistent with the way authorities are structured for other heads of federal entities, such as the Director of Homeland Security, as to internal accountability.
For the above reasons, it was reasonable to conclude that DNI Clapper, having been tasked to "establish" a review group, would play a significant role in the process; and that he would follow the procedures already laid out for reviews. Likewise, it is reasonable to conclude that the NSA should follow the directives of the Fourth Amendment in conducting surveillance programs, which leads us back to the need for a review. Unfortunately, Constitutionality of those programs was not identified in the President's directive as a review criterion.
Public feeling about NSA surveillance is such that even a minimal Clapper connection to the planned review would be unpalatable. No matter how the President subsequently decides to structure the group, the fact that Clapper remains DNI will undermine the report's credibility, the NSA's and the President's. There's only one solution to that: Clapper must go.