Officials with knowledge of the "outside" review board President Obama formed to review National Security Agency policies have leaked information about the proposal the board will release. While it recommends some restraints on the NSA's bulk collection of domestic information, according to these officials, it will recommend that bulk collection continues.
But resistance from the intelligence agencies is likely. In an interview two months ago, Gen. Keith B. Alexander, the soon-to-retire director of the N.S.A. and the commander of the military’s Cyber Command, suggested that a major cutback in American spying on foreign nationals would be naïve. And officials who have examined the N.S.A.’s programs say they have been surprised at how infrequently the agency has been challenged to weigh the intelligence benefits of its foreign collection operations against the damage that could be done if the programs were exposed.One of the members of the board, Sascha Meinrath, director of the Open Technology Institute, blasted the proposal, saying the "review group was searching for ways to make the most modest pivot necessary to continue business as usual," and that it "does nothing to alter the lack of trust the global populace has for what the US is doing, and nothing to restore our reputation as an ethical internet steward." Other privacy advocates, including the ACLU, are taking a wait-and-see approach, to see whether the recommendations curtail “bulk suspicionless spying or not.”
One of the expected recommendations is that the White House conduct a regular review of those collection activities, the way covert action by the C.I.A. is reviewed annually.
Another likely recommendation, officials say, is the creation of an organization of legal advocates who, like public defenders, would argue against lawyers for the N.S.A. and other government organizations in front of the Foreign Intelligence Surveillance Court, the nation’s secret court that oversees the collection of telephone and Internet “metadata” and of wiretapping aimed at terrorism and espionage suspects. Mr. Obama has already hinted that he objects to the absence of any adversarial procedures in front of the court’s judges.
The administration has already chosen to ignore one of the recommendations of the group: putting a civilian in charge of the NSA, and splitting the roles of NSA chief and the military’s cyberwarfare command, currently held by Gen. Keith Alexander. At the same time, Congress is about the enter a real fight over whether to essentially codify the status quo, the Sen. Dianne Feinstein (D-CA) approach, or enact real, legal restrictions preventing the bulk collection of Americans’ data without individualized, court-approved suspicion of terrorist activity. That's the approach of Sen. Patrick Leahy (D-VT) and Rep. Jim Sensenbrenner (R-WI), the original author of the Patriot Act.
The NSA isn't going to police itself, even if the administration does decide to accept the recommendations of the review board. Congress must step up and do that job. The Leahy-Sensenbrenner USA Freedom Act is the best vehicle for that.