Friday, November 21, 2014

By Sheldon Gordon

Geoffrey StoneIn August 2013, a White House emissary approached Geoffrey Stone to serve on a presidential panel following Edward Snowden's revelations about electronic intelligence gathering by the U.S. National Security Agency (NSA).

The University of Chicago law professor and civil libertarian was reluctant to sign on. He was in the middle of writing a book and was jaded by previous presidential advisory panels whose reports were shelved. 

Nonetheless, he felt he couldn't say no to Barack Obama--not only the President of the U.S. but a former lecturer at the University of Chicago law school whom Stone had hired in the early 1990s when he was the dean.

The media and civil libertarians predicted the panel would tell the President what he wanted to hear—especially since two of the panel's members had worked for his administration recently.

“We wanted to prove everyone wrong,” Stone said in a guest lecture on “Liberty, Security and the NSA: The View from the Inside” at the Faculty of Law, November 19th.

The NSA ReportAs it turned out, “the task force was not a waste of time,” he said.

The 300-page report of the President’s Review Group on Intelligence and Communication Technologies “surprised people with its far-reaching recommendations for change,” he said.

President Obama “accepted the vast majority of its 46 recommendations, and has implemented several. But most require legislation to give effect to them.” 

The U.S. Senate, however, failed on November 18th to win the necessary 60 votes to defeat a Republican filibuster on the USA Freedom Act, which incorporated many of the panel's proposals.

“The Republicans didn't want, at a time when the U.S. is at war with ISIS, to put any more constraints on the NSA than already exist,” said Stone.

However, when the USA Patriot Act comes up for renewal in Congress next June, the Democrats will have leverage to press for adoption of the NSA reforms.

When he agreed to serve on the panel, the constitutional-law scholar started with a recognition that the U.S., like many nations, had overreacted to “periods of great fear.” 

Just as Lincoln suspended habeas corpus during the Civil War and Roosevelt interned Japanese-Americans during World War II, Stone expected to find excesses in the U.S. war on terror that followed 9/11.

“My early assumption was that the NSA had far exceeded its authorization and was out of control. That proved wrong. There was not an NSA problem; there was a government problem.”

“The White House, Congress and the judiciary had all given the NSA responsibilities it should not have had, said Stone. 

My early assumption was that the NSA had far exceeded its authorization and was out of control. That proved wrong. There was not an NSA problem; there was a government problem.

“The Senate and House Intelligence Committees were supposed to oversee that the intelligence programs operated properly. But their members were ill-informed and spread too thin among multiple committees.”

Although the five members of the presidential panel had different backgrounds and divergent ideologies, they learned to respect and trust each other, said Stone. “We didn't want to put the nation at significant risk, but we didn't want to unduly compromise civil liberties.”

The most problematic issue, although it represented only about one percent of Edward Snowden's disclosures, was the NSA's collection of telephone “meta-data” on the American people.

Under this program, the agency was authorized, when there are reasonable grounds to suspect a foreign caller of terrorism, to enter the phone number into the U.S. telephone database and show all the U.S. residents he has contacted by phone over the previous five years.

The NSA then turns the domestic phone numbers over to the Federal Bureau of Investigation (FBI) for further investigation. In 2012, the most recent year reviewed by Stone's panel, 288 foreign phone numbers were queried. In 12 instances, they were communicating with a terrorism suspect. But none of the investigations turned up anything. 

Stone discussed the potential dangers of such a program. “If the NSA has access to these tens of billions of data points, someone in the government could access them for non-legitimate purposes,” such as discovering (by patterns of association) U.S. residents who are gay, or unfaithful to their spouses, or patients of psychiatrists.

“We recommended that the NSA shouldn't be allowed to collect the data; it should remain with the phone companies,” said Stone. 

Also, the NSA should not be able to access the meta-data without a court order. And the need to keep the meta-data should be limited to the previous 18 months.

Why not simply end the meta-data program if it turned up nothing during the year under review?

Even if the government is wrong, a ‘Snowdenesque’ individual can't be the one to decide that.

“Our judgment is that even if the program were to stop one terrorist attack in 20 years, it would be worth having. The best approach was to not have it intrude on civil liberties unnecessarily.”

Stone gives no credit to former NSA contractor Snowden for exposing the meta-data program and thus contributing to its reform. “His revelation has pretty much destroyed the effectiveness of the program.”

For 2014, Stone believes the number of foreign terrorism suspects whose calls to the U.S. could be tracked would have dropped to almost none, down from 288, as suspects now know not to make multiple calls on the same phone.

While Snowden's defenders might say that the program wasn't all that valuable even before he revealed it, “Snowden had no knowledge of whether it was an effective or worthless program when he exposed it.”

If an elected government designs a program that requires secrecy to work properly, it's intolerable that a “low-level functionary can disapprove of the program and blow the whistle on it.” 

Even if the government is wrong, a ‘Snowdenesque’ individual can't be the one to decide that, he said.

Stone, however, conceded if a Snowden were offended by an intelligence-gathering program. “He had nowhere to go to protest. The White House, Congress and the Foreign Intelligence Surveillance Court had all approved these programs. 

“Therefore, there's a need for outsiders to review intelligence-gathering activities. If you're going to have secret programs, you need to have fresh eyes on them on a regular basis doing what we did.”