After a public backlash to government spying, President Barack Obama called for an independent group to review the vast surveillance programs that allow the collections of phone and email records.
Now, weeks before the group’s first report is due, some lawmakers, technology organizations and civil liberties groups are concerned that the panel’s members are too close to the Obama administration and its mission too vague to provide a thorough scrubbing of the National Security Agency technologies that have guided intelligence gathering since the Sept. 11, 2001, terrorist attacks.
The Review Group on Intelligence and Communications Technologies works in the office of the director of national intelligence; reports to its director, James Clapper, who’s been accused of lying to Congress about the programs; and has ties to his current and former bosses, Obama and former President Bill Clinton.
“There is ample evidence now that we need an independent investigation of the impact of the NSA’s spying program on Americans’ constitutional rights and civil liberties,” said Sen. Tom Udall, D-N.M., who has advocated for NSA changes. “A task force appointed by the president, reporting to the DNI, certainly won’t inspire confidence and may simply rubber-stamp a program that is dangerously infringing on Americans’ privacy rights.”
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Obama had repeatedly downplayed the scope of the surveillance programs after leaks of top-secret documents by former NSA contractor Edward Snowden, but he eventually addressed the rising public criticism. Documents showed the NSA is collecting the telephone records of tens of millions of Verizon customers as well as emails through nine companies including tech giants Microsoft, Yahoo, Google and Facebook.
He announced he would form a “high-level group of outside experts” that “protects our national security and advances our foreign policy while respecting our commitment to privacy and civil liberties” in early August, when he unveiled a series of proposals designed to provide more oversight on the government’s ability to spy on Americans. He also declassified documents, created a website to release information and name an NSA civil liberties and privacy officer.
The members of the review group are Richard Clarke, the chief counterterrorism adviser on the National Security Council for Clinton who later worked for Republican President George W. Bush; Michael Morell, Obama’s former deputy CIA director; law professor Geoffrey Stone, who has raised money for Obama and spearheads a committee hoping to build Obama’s presidential library in Chicago; law professor Cass Sunstein, administrator of information and regulatory affairs for Obama; and Peter Swire, a former Office of Management and Budget privacy director for Clinton.
“At the end of the day, a task force led by Gen. Clapper full of insiders – and not directed to look at the extensive abuse – will never get at the bottom of the unconstitutional spying,” said Mark Jaycox, a policy analyst for the Electronic Frontier Foundation, a privacy advocacy group.
The review group met with Obama in late August and with a dozen civil liberties and business groups in a pair of meetings in September. Some who attended said they raised concerns about the programs, but panel members – at least one was missing from each meeting – did not respond to them, saying in several instances they could not reveal information because it is classified.
The panel’s meetings are closed anyway after Clapper exempted it from the U.S. Federal Advisory Committee Act, which would have required it to keep the public informed and hold open meetings, for “reasons of national security,” according to a statement from the group sent from Clapper’s office. “While we are exempt from the FACA, we are conducting this review as openly and transparently as possible,” the statement says.
Sascha Meinrath, director of the Open Technology Institute and vice president at the New America Foundation, who attended one of the meetings, said the process is set up to solicit only a “modest” review that will not help restore eroding trust around the globe. “It won’t solve the problem,” he said.
Technology organizations and civil liberties groups monitoring the process say they worry the members are too focused on legal issues, not technical ones. Some members, they say, don’t know which questions to ask.
Michelle Richardson, legislative counsel with the American Civil Liberties Union who attended one of the meetings, said the review group’s membership should have been more diverse and the mission more specific. She said it’s too soon to tell how effective the group will be, but “no one is going to do a top-to-bottom review.”
The group is seeking public comment before Oct. 4. It is required to provide an interim report to Obama later this month and a final report by Dec. 15.
Caitlin Hayden, a spokeswoman for the White House National Security Council, said Obama has “full confidence” in Clapper and “looks forward to hearing from this group of experts when its work is done.”
“The DNI’s role in this case is one of facilitation, and while the DNI will not take part in the group, the DNI will support the group and the group’s report will be sent through the DNI,” Hayden said. “The members require security clearances and access to classified information, so they need to be administratively connected to the government; the DNI’s office is the right place to play that role.”
Meanwhile, Udall said he has asked the independent, congressionally created Privacy and Civil Liberties Oversight Board to investigate the NSA’s programs and issue a public report of its findings, though there is no specific timetable for that to be done.
The senator’s committee, the Appropriations Subcommittee on Financial Services and General Government, has proposed a spending bill next year that would fund that board at a level that would allow it to hire staff and fully examine surveillance programs.