The recent terrorist attacks around the globe have sparked an important debate about whether U.S. intelligence agencies have the tools they need to combat terrorism. After the San Bernardino attack, when some members of Congress asked whether recent restrictions on intelligence authorities had gone too far, critics cried foul, arguing that a terrorist attack shouldn’t be used as an excuse to roll back civil liberties.
But we need a renewed discussion about whether the laws governing our intelligence agencies enable them to pursue terrorist threats nimbly and aggressively while also respecting Americans’ privacy and civil liberties. The attack in San Bernardino was a reminder of what is at stake.
The policy debate on national security issues in the two years following the Snowden leaks had been heavily one-sided, painting the intelligence agencies as bad actors who cared little for Americans’ privacy or liberty. Many falsehoods became accepted fact in the public discourse. For example, the weight of the news and public commentary led many Americans to believe the complete fiction that the NSA was conducting mass surveillance of their telephone conversations or emails.
And many important facts were either absent from the discussion or ignored. For example, there has been almost no public discussion of why we need good foreign intelligence. Foreign intelligence is the vital information on which policymakers rely to make good decisions on all defense, national security, and foreign affairs matters. Defeating ISIS will require success on many fronts, including military strikes; cutting off funding and supply lines; identifying and preventing ISIS sympathizers in the U.S. from traveling overseas; and uncovering terrorist plots and preventing attacks inside the United States. None of these efforts can succeed without timely, reliable, actionable intelligence – and agencies that are equipped to act on it quickly.
Of course, the fact that foreign intelligence is important does not mean it should be gathered indiscriminately or without respect for the American values of privacy and individual freedom. Nor is it. Contrary to the perception that foreign intelligence gathering by the United States is like the lawless Wild West, U.S. intelligence agencies are the most heavily regulated, transparent, and closely overseen of any country in the world. Every intelligence agency and program is governed by an extremely complex set of legal rules, including the U.S. Constitution, statutes passed by Congress, Executive Orders issued by the president, and directives, policies, and procedures imposed by the agencies on themselves. Compliance with these many requirements is overseen by about a dozen bodies within the executive branch, by Congress, and in some cases by the judiciary. The intelligence agencies take these legal requirements very seriously, and agency personnel from the analyst on the front line to the top of the chain of command work hard to comply with them.
Having observed many of these procedures and compliance mechanisms in practice in my role as a Member of the Privacy and Civil Liberties Oversight Board, I believe that, on the whole, they effectively promote privacy and liberty interests in intelligence programs. There is always room for improvement, and constant vigilance is required to ensure that the right balance is preserved. But this must run in both directions. The public and policymakers must be vigilant not only in ensuring that intelligence agencies do not encroach on liberty, but also in ensuring that well-meaning intelligence reform proposals do not go too far in hamstringing their effectiveness.
It is important for officials in Congress and the executive branch – including privacy-focused oversight bodies like the PCLOB – to keep both sides of this balance in mind. Just as the agencies’ job is not to collect intelligence without regard to its impact on Americans’ liberty, our role is not to recommend privacy-focused restrictions blind to their potential impact on national security. Instead, it is to help the agencies do their jobs better with privacy considerations in mind.
In response to the public outcry following the leaks, Congress enacted several provisions restricting intelligence programs. The president unilaterally imposed several more restrictions. Many of these may protect privacy. Some of them, if considered in isolation, might not seem a major imposition on intelligence gathering. But in fact none of them operate in isolation. Layering all of these restrictions on top of the myriad existing rules will at some point create an encrusted intelligence bureaucracy that is too slow, too cautious, and less effective. Some would say we have already reached that point. There is a fine line between enacting beneficial reforms and subjecting our intelligence agencies to death by a thousand cuts.
It is time to get this discussion back in balance by focusing on facts and paying attention to the long-term consequences of legal changes made to address short-term public opinion.
Brand is a member of the U.S. Privacy and Civil Liberties Oversight Board. The views expressed above are her own and do not represent the views of the board or any other board member. Previously, she served as assistant attorney general for Legal Policy and as an associate counsel to President George W. Bush. She was a law clerk to Justice Anthony Kennedy of the U.S. Supreme Court.