In the coming days, I am certain we will see a lot of substantive commentary on the report by the President’s Review Group on Intelligence and Communications Technologies: Liberty and Security in a Changing World. But let me start out with a crass political observation: This is a really awkward document for the Obama administration. Really awkward.
The President, after all, has stood by the necessity of the Section 215 program and objected to legislative proposals to curtail it. Then the White House handpicks a special review group, and it kind of pulls the rug out from under the administration’s position. The review group concludes “that the information contributed to terrorist investigations by the use of section 215 telephony meta-data was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders.” It also reflects skepticism that the program functions as a kind of insurance policy, “alleviating concern about possible terrorist connections. . . .” Ouch.
Similarly, the administration has stood by its national security letters authority. The review group suggests reining it in.
The administration has insisted that NSA needs to hold the telephony metadata. The review group suggests it should be held by the telecommunications companies—or a third party.
The administration has rejected calls to end the dual-hatting of the NSA Director and the head of Cyber Command. The review panel concludes that “the head of the military unit, US Cyber Command, and the Director of the National Security Agency should not be a single official.”
The administration has been skeptical of deep structural reforms of the FISA Court. The review group advocates the creation of a position of Public Interest Advocate before the court and changing “the process by which judges are appointed to the [FISC], with the appointment power divided among the Supreme Court Justices.”
And on and on and on.
Whether you read this as a rejection of bad policy by an independent group that did exactly what Obama asked it to do or less favorably, will probably depend on where you started on the issues. But this presumably was not the report Obama was imagining when he asked this group to take this on. The White House’s press release accompanying the report declares that: “The President expressed his personal appreciation to the group members for the extraordinary work that went into producing this comprehensive and high quality report, and outlined for the group how he intends to utilize their work.” He must have gritted his teeth while doing so. For Obama knows that—whatever the merits of the issues in question—his job just got a lot harder because of a review he commissioned and empowered.
To put the matter bluntly, there is no way the administration will embrace a bunch of these recommendations. And from this day forward, any time the White House and the intelligence community resist these calls for change, the cry will go out that Obama, in doing so, is ignoring the recommendations of his own review panel. And the cry will be right. The White House declares that “Over the next several weeks, as we bring to a close the Administration’s overall review of signals intelligence, the President will work with his national security team to study the Review Group’s report, and to determine which recommendations we should implement.”
Good luck with that.
This story was cross-posted at Lawfare. Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution.