White House to Announce Surveillance Review Group Amid Calls for More Oversight

The White House expects to release names of group members soon but has no plans to do so Thursday, a spokeswoman told us. The alleged members already kicked up debate over the group’s makeup among privacy advocates and others, who question just how independent the review group will be. The group, once established, is expected to deliver initial recommendations to Obama within 60 days and its final report by Dec. 15.

All four possible members list strong ties to the executive branch on their resumes. Until retirement this June, Morell was deputy director of the CIA, with decades of experience there and twice was acting director of the agency in recent years. Richard Clarke was a senior adviser to the White House for the three past presidents, with a special emphasis on cybersecurity. He’s the author of the 2010 book Cyber War: The Next Threat to National Security and What to Do About It. His other engagements include chairing the security risk management firm Good Harbor and opining on-air for ABC News. Cass Sunstein was administrator of the White House Office of Information and Regulatory Affairs from September 2009 through August of last year. He’s now a Harvard law professor. Peter Swire was chief counselor for privacy in the Office of Management and Budget during the Clinton administration. He now teaches in the Georgia Institute of Technology’s business school, is currently co-chairing the World Wide Web Consortium group that is working on a Do Not Track mechanism and is a fellow at various organizations, including the Center for American Progress, the Future of Privacy Forum and the Center for Democracy and Technology.

The panel is “not exactly a list of ‘outside’ experts,” Orin Kerr, a professor at George Washington University Law School, said in a blog post Thursday (http://bit.ly/16SdXWu). Kerr highlighted the ties each panelist has to the administration, but said the “group might be effective in the end, as they each bring a different skill set and perspective to the problem."

The surveillance programs require more oversight, Alan Butler, appellate advocacy counsel at the Electronic Privacy Information Center (EPIC), told us. Though information is sent to the House and Senate Intelligence committees, it’s “not adequately distributed to members of Congress and the public” when needed to make public policy decisions, he said. The relevant congressional committees have a role to play in surveillance oversight, but it “seems like they're not adequately playing it,” he said. Additionally, “the government has substantially misrepresented its own surveillance activities to the surveillance court multiple times over the last five years,” as evidenced by the documents released Wednesday, Butler said. He asked what kind of oversight the court can provide if it doesn’t have a full picture of the surveillance activities being conducted.

Butler said he remains “skeptical but optimistic” about the role the review panel can play in surveillance oversight. “There’s always concern” that the panel may be composed of people who support broad surveillance, he said. Additionally, the fact that true transparency around the panel’s review will be encumbered by classification requirements is an “inherent problem with the process,” he said. But the panel can be successful “if it takes this issue seriously,” and EPIC plans to contact the panelists about the group’s recommendations, he said.

The documents released Wednesday include an October 2011 FISC opinion in which Judge John Bates ruled unconstitutional an aspect of the NSA’s electronic communications surveillance program. The NSA had, since 2008, not been applying appropriate retention and minimization measures to data about non-targeted Americans’ communications. That data was “upstream” data, meaning it was collected by accessing the Internet “backbone,” rather than through the Prism program, ODNI and the Justice Department wrote in reports to the House and Senate Intelligence committees. The next month, Bates approved minimization and retention procedures for the data. The legal analysis taking place in these opinions is “somewhat reassuring,” he said, but the analysis only applies to “upstream collection,” which accounts for about 9 percent of the electronic communication surveillance done by the NSA. “We don’t have any equivalent data about the Prism program,” he said. “We don’t actually know what the impact of that 91 percent is."

More privacy protection oversight of these surveillance programs is needed, Leahy said in a statement, responding to Wednesday’s releases. “The American people deserve to know when and why a court has declared government surveillance activities unconstitutional, particularly when they involve the warrantless collection of emails,” he said. The declassification and release of those documents “begins to appropriately draw back the curtain on the secret law of government surveillance,” but there is a “need for increased oversight and stronger protections for Americans’ privacy,” he said. “This will be the subject of another Judiciary Committee hearing in the coming weeks."

More FISC opinions should be released, and the process for declassification should be automatic, EPIC’s Butler said. The 2011 FISC opinion deeming an aspect of a surveillance program unconstitutional should have been released when it was issued, not years later, he said. “If this opinion had been declassified” in 2011, “then we would have had the information that was desperately needed during the reauthorization of the FISA Amendments Act” or when the Supreme Court was considering Clapper v. Amnesty International, in which the court ruled that the plaintiffs did not have standing to challenge FISA. FISC opinions would contribute to the decisionmaking processes behind those legal events, he said. “I think they need to be released routinely.” Butler expressed support for bills that would bring transparency to the FISC process, including one introduced by Leahy. “When [Congress gets] back in session, armed with this new information, we'll see what collection of reforms can come through.” -- Kate Tummarello (ktummarello@warren-news.com), John Hendel