Review of US Surveillance Programs to be Led by Panel of Intelligence Insiders

Published on
by
The Guardian/UK

Review of US Surveillance Programs to be Led by Panel of Intelligence Insiders

List of apparent panel members prompts criticism among privacy advocates after Obama promised 'independent' review

by
Paul Lewis

President Barack Obama announced the creation of an 'independent' panel during a speech earlier this month. (Photograph: Win Mcnamee/Getty)

The review of US surveillance programs which Barack Obama promised would be conducted by an "independent" and "outside" panel of experts looks set to consist of four Washington insiders with close ties to the security establishment.

The president announced the creation of the group of experts two weeks ago, in an attempt to stem the rising tide of anger over National Security Agency surveillance techniques disclosed by the whistleblower Edward Snowden.

Obama trumpeted what he said would be a "high-level group of outside experts" tasked with assessing all of the government's "intelligence and communication technologies".

However a report by ABC News, which has not been denied by the administration, said the panel would consist of Michael Morell, a recent acting head of the CIA, and three former White House advisers.

The list of apparent panel members prompted criticism among privacy and civil liberty advocates, who said the review would lack credibility and was unlikely to end the controversy over US surveillance capabilities.

When Obama announced the review earlier this month, he said it would "step back and review our capabilities – particularly our surveillance technologies". The panel would also be asked to ensure there is "absolutely no abuse" government spying programs, Obama added, in order to ensure "the trust of the people".

The review was one of four concrete proposals laid out by the president, including working with Congress to draft new legislation, to reassure the public about NSA surveillance tactics and bring about reforms.

In addition to Morell, who was deputy director of the CIA until just three months ago, the panel is believed to consist of former White House officials Richard Clarke, Cass Sunstein and Peter Swire.

None responded to requests for comment, however sources close to Sunstein and Swire said they understood them to have been selected. A formal White House announcement is expected soon.

Sunstein, a Harvard law school professor who has been described as an intellectual inspiration for Obama, only left his job as White House's "regulatory czar" last year.

Sunstein is a particularly controversial appointment. In a paper in 2008, he appeared to propose the US government employing covert agents to "cognitively infiltrate" online groups and activist websites that advocate theories that are considered false and conspiratorial.

He has also proposed reformulating the first amendment, arguing that in some instances it goes too far in protecting damaging forms of speech.

He is married to Samantha Power, the former White House adviser whom Obama recently appointed as US ambassador to the United Nations.

Richard Clarke, the fourth member of the panel, is a well-known and sometimes outspoken figure in the intelligence establishment who served as a senior White House adviser to the last three presidents.

He now runs a private security company, Good Harbor Security Risk Management, headquartered in Washington.

"This group is very closely related to the White House already," said Mark Rumold, a staff attorney at the Electronic Frontier Foundation. "When we go down this road of having executive branch insiders continually placed in charge of reviewing the executive branch, it is more of a fox guarding the henhouse situation."

He pointed out that the new panel is the second executive body given responsibility for monitoring domestic surveillance operations.

The other oversight committee is the secretive Privacy & Civil Liberties Board (PCLOB), which was asked by the president to review surveillance capabilities in June, shortly after Snowden, a former NSA contractor, made his disclosures.

The EFF has been calling for the creation of a far more wide-ranging congressional inquiry, along the lines of the bipartisan Church Committee, which in 1975 investigated the FBI, CIA and NSA in the wake of the Watergate scandal.

Rumold said that committee was only created after a panel set-up by President Gerald Ford – similar in makeup to the one Obama appears to have chosen –was deemed to be insufficiently independent.

The review will provide an interim report in 60 days and issue a final report by the end of this year. Both reports will address how NSA surveillance programs impact security, privacy and foreign policy.

Of the three White House officials expected to be on Obama's panel, only one – Peter Swire – is considered by some civil liberty experts to be an appropriate choice.

A recently appointed professor at Georgia Institute of Technology, Swire has is a privacy expert, and fellow at two liberal think tanks: the Center for American Progress and the Center for Democracy & Technology.

Leslie Harris, president of the CD&T, described Swire's appointment as a "home run" for privacy groups.

"He understand the inside ways in which you can make things happen in government and the range of potential options for enhancing privacy," she said.

Harris said she also backed the appointments of Cass Sunstein and Richard Clarke, who she believed were sufficiently independent figures who had the experience to know how to navigate the upper echelons of government.

But she added: "They're not outsiders. That is a fair criticism. Certainly it gave me pause that they all had a prior involvement in the government."

"It doesn't look too independent, does it?" said Democratic congresswoman Zoe Lofgren. "It doesn't give the appearance of independence that was anticipated. Individuals who are not so closely associated with the administration would have been better."

Lofgren, who said she has had several conversations with voters who are concerned about NSA surveillance since returning to her California district during recess, said the makeup of the panel might backfire.

"The president, I would guess, intended to put the whole surveillance issue to rest with the establishment with an outsider review panel. Well, I don't think this will be perceived as the kind of independent group as most people had expected," she said.

"The apparent goal of sorting through the issues, and getting a credible report out there that was reassuring, will not be achieved. And therefore, he [Obama] is going to have to do something else."

Michelle Richardson, a legislative counsel at the American Civil Liberties Union, said that all four reported panel members, with the possible exception of Swire, were "folks are deeply enmeshed in the intelligence community".

She said she had expected the panel to consist of more independent figures, including known critics of the administration whose "livelihoods depend on the surveillance superstructure".

"Inside baseball has gotten us to routine spying on everyday Americans," she said. "Inside baseball has gotten us to routine spying on everyday Americans," she said. "It has been building up for decades. And the folks on the inside have a lot of skin in the game – these are their pet projects. It is so hard, once you have the authority, to give it up."

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