White House Taps Former NSA Surveillance Critic Stone for Review Group

The panel’s members are former security adviser Richard Clarke, former Deputy CIA Director Michael Morell, former regulatory czar Cass Sunstein, former privacy counselor Peter Swire, and law professor Geoffrey Stone, who clerked for then-Supreme Court Justice William Brennan. The group met with Obama Tuesday, said White House Press Secretary Jay Carney. ABC News had reported the inclusion of Clarke, Morell, Sunstein and Swire last week, prompting outcry from some observers that the panel may not be truly independent (CD Aug 23 p6). Those four had strong executive branch ties in their past. But that unconfirmed report failed to name Stone, a University of Chicago Law School professor who has published extensively on government secrecy and liberty concerns. He has collaborated with Sunstein, who headed the White House Office of Information and Regulatory Affairs, on constitutional law publications for years. Stone also is on the national advisory council of the ACLU, which this week sued Director of National Intelligence James Clapper, NSA Director Keith Alexander, Defense Secretary Chuck Hagel, Attorney General Eric Holder and FBI Director Robert Mueller. The group is expected to brief their interim findings through Clapper to Obama, Carney said.

Stone had seemed to be “a strong opponent” to earlier surveillance but less so in recent years, Alex Abdo, staff attorney for the ACLU National Security Project, told us. He said Stone’s affiliation with both the ACLU and the review group isn’t likely to affect Stone’s group recommendations or the ACLU lawsuit, filed in the U.S. District Court in New York Monday. The group’s composition isn’t as important as its recommendations, Abdo said. The recommendations should propose ending bulk collection of phone records in favor of targeted surveillance as well as inserting better privacy protections into authorizing surveillance provisions, he said. “The intelligence community has misled the public in terms of what it thinks the law allows,” Abdo added, naming Clapper.

The White House praised the group’s expertise. “These individuals bring to the task immense experience in national security, intelligence, oversight, privacy and civil liberties,” Carney said in a written statement. He said they bring “a range of experience and perspectives to bear to advise the President on how, in light of advancements in technology, the United States can employ its technical collection capabilities in a way that optimally protects our national security and advances our foreign policy while respecting our commitment to privacy and civil liberties, recognizing our need to maintain the public trust, and reducing the risk of unauthorized disclosure.”

Stone “will come at the issues from a strong civil libertarian perspective, with the caveat that he is not a subject matter expert in surveillance law or technology,” predicted Orin Kerr, a professor at George Washington University Law School, in a Tuesday blog post (http://bit.ly/1fj8oiN). Kerr debated Stone on surveillance years ago, he said. But in a post update, Kerr noted Stone gave “a different perspective from what I would have guessed” during a recent interview, in which Stone said there was nothing illegal or criminal about Obama’s surveillance programs, based on what former National Security Agency contractor Edward Snowden leaked to the media this summer.

Snowden “is most certainly a criminal who deserves serious punishment,” Stone wrote in a June Huffington Post column (http://huff.to/190RmEw). Stone had slammed surveillance program operations under President George W. Bush, and in 2006, wrote a letter to Congress signed by 14 constitutional scholars and former government officials called “Why the NSA Surveillance Program Is Unlawful,” posted at The Huffington Post (http://huff.to/15gKllW). He maintained problems plague the Foreign Intelligence Surveillance Court today, detailed in a July 5 column (http://huff.to/17hZFhO). He criticized “major deficiencies” in court operations wherein there’s “no one on the other side to advocate against the arguments of the government.” He pushed for such adversarial review, “something like a public defender’s office.” Stone also expressed concern that more than nine out of 10 FISA court judges were appointed by Republicans. Judges “appointed by Republican presidents support civil liberties claims roughly 34 percent of the time, whereas those appointed by Democratic presidents support such claims approximately 74 percent of the time,” Stone said. The current FISA court is “dramatically more likely to approve warrants for government surveillance than a FISA court consisting of judges appointed half by Republican and half by Democratic presidents,” Stone said. He blamed the choices of the Republican-appointed Chief Justices of the U.S. Warren Burger, William Rehnquist and John Roberts, “who are not supposed to be influenced by partisan or ideological considerations” and are charged with appointing FISA court judges.

The review group’s creation comes amid much congressional ire, potential legislation and promised hearings in both the Senate and House. Sen. Chuck Grassley, R-Iowa, cited media reports that the NSA’s office of inspector general “has documented instances in which NSA personnel intentionally and willfully abused their surveillance authorities,” he told NSA Inspector General George Ellard in a letter sent Tuesday and released Wednesday (http://1.usa.gov/15xv0Lh). The letter requests “specific details” of NSA employee behavior, job title and duties of any misbehaving employee and how the conduct was discovered. He wants to know what law or authority was violated and why the abuse was concluded intentional, he said. He also sought information about any internal punishments, “including whether the employee was terminated,” and whether these instances were referred for criminal prosecution and if not, why. Grassley, who wants a response by Sept. 11, requested “that you respond in an unclassified manner to the extent possible.” He is ranking member of the Senate Judiciary Committee, which oversees the FISC.

Recent intentional abuse accounts are “proof that oversight mechanisms have failed,” Abdo told us, blaming Congress and the courts. But NSA rules are already “too permissive,” he said, reiterating the need for privacy protections that even Obama supported in 2008 as a senator. Abdo warned against NSA “mission creep” and said the NSA should remain focused on targeted foreign surveillance rather than engage in the “indiscriminate and dragnet” broad monitoring that includes U.S. citizens. “There’s obviously momentum within Congress to rein in the NSA,” Abdo said.

"Our hope is that the lawsuit will end that program,” Abdo said, referring to the bulk collection of call records targeted in the ACLU suit. He acknowledged the NSA’s “important role to play” in security but called for more tailored mechanisms. The federal government urged the court to dismiss the complaint. “As the FISC repeatedly has found (as recently as last month), telephony metadata are relevant to authorized counter-terrorism investigations, and their collection by the Government is authorized by FISA,” said that court document, filed Monday night.