[Infowarrior] - The tough hit the NSA didn't see coming

[Richard Forno]

(Of course, these are all recommendations -- the WH is not under any obligation to act upon them, and if anything, I suspect POTUS will just say this will help "public discussions" on these issues and move on to other things, as usual . --rick)

Slobberknockered
How a toothless bureaucratic commission went all Snowden on the NSA.
By MATTHEW M. AID

December 16, 2013

http://www.politico.com/magazine/story/2013/12/nsa-panel-report-snowden-slobberknockered-101208.html

Edward J. Snowden must be pleased with what he started. A group appointed by President Barack Obama in August to review the National Security Agency’s hugely controversial spying operations has finished its work, and, based on the early leaks and my own conversations, the resulting report is going to be a doozy.

Expectations for the panel have been extremely low since its creation. According to administration and congressional officials I spoke with over the past three weeks, senior leaders of the U.S. intelligence community, and especially the NSA, were supremely confident back in August that their support in the White House was rock-solid and that any changes the panel might propose would be, in the words of one official, “largely cosmetic.”

Clearly, they were overconfident. The Review Group’s preliminary findings and recommendations are anything but cosmetic. The still-classified report of the five-person panel, whose official moniker is the Review Group on Intelligence and Communications Technology, recommends sweeping and far-reaching changes in the way the NSA conducts its electronic surveillance operations, from a greater degree of executive-branch oversight of the agency’s operations to the imposition of new limits on what data it can collect, especially inside the United States—a move almost certain to anger the NSA and its supporters inside the U.S. intelligence community. But the report also recommends that the agency be allowed to continue some of the most controversial of these operations, which will not please its critics on Capitol Hill and among privacy advocacy groups.

The result is that nobody in Washington will be entirely happy with the report’s findings. “There is something in this report for everybody to hate,” a weary White House aide who has read the classified version of the Review Group’s report told me.

But the intelligence community will likely be unhappiest of all.

U.S. intelligence officials I spoke with were clearly shocked by the Review Group’s recommendations, with one official admitting that he felt “slobbernockered” by some of the things the panel was reportedly recommending. It was supposed to be a group that wouldn’t rock the boat: former CIA No. 2 Michael Morrell, national security insider Richard Clarke, former Obama official Cass Sunstein, and two professors with establishment ties, Georgia Institute of Technology’s Peter Swire and the University of Chicago’s Geoffrey Stone. To make the agency’s predicament even worse, a federal judge ruled Monday that the NSA’s collection of the telephone records of Americans was almost certainly unconstitutional.

In my conversations, a number of senior American officials blamed the changed political climate in Washington for the report’s overall reformist thrust. Reflecting on the dramatic changes that have taken place since the first newspaper stories based on Snowden’s leaked materials began appearing back in June, one U.S. official noted that the NSA’s once-solid support inside the White House and on Capitol Hill has waned since the panel was created in August, and that the once cordial relationship between the White House and NSA has become distinctly “chilly” over the past two months.

NSA officials became concerned this fall when their memos were increasingly ignored and their phone calls to key officials in Washington, especially at the State Department, were not returned. And more ominously, rumors began to reach NSA headquarters at Fort Meade, Maryland, that the review panel had been given new marching orders to be robust and searching in its report.

“We got the distinct impression that we were now lepers in Washington,” a senior NSA official recalled, adding, “Putting as much distance as possible between the White House and us was the order of the day.”

Intelligence officials confirm that it is true that over the past two months, thanks to the steady drumbeat of shocking newspaper exposés about the agency’s activities, the NSA has lost a good deal of support in the White House, the Pentagon and the State Department, and on Capitol Hill.

At the same time, the agency’s once harmonious relationship with this country’s largest high-tech companies, such as Microsoft, Google and Yahoo, is now a shattered smoking ruin, NSA officials fret. Only the “big three” American telecommunications companies—AT&T, Verizon and Sprint—appear to remain firmly supportive, and even they are beginning to put some distance between themselves and the NSA as shareholders ask pointed questions about their clandestine relationship with the agency.

In this political climate, it was perhaps inevitable that the Review Group would recommend making substantive changes in the way the NSA operates. “We had to go this route,” a Review Group staffer told me in an interview. “If we did not recommend placing some additional controls and checks and balances on the NSA’s operations, the high-tech companies were going to kill us and Congress was going to burn the house down. Besides, our report is non-binding, so who knows what the White House is going to accept and what they are going to toss out.”

When asked what he thought NSA’s reaction to the panel’s recommendations was going to be, this source said, “Well, I’m not going to get any Christmas cards from [NSA director] Keith Alexander this year, but I think I can live with that.”

What’s making the NSA so nervous?

The Review Group, I’m told, agreed with the NSA that its highly controversial collection of bulk telephone records—including the date, time, length and number on the call (which the NSA refers to as “metadata”)—should continue unabated. But the panel urges significant changes in how these records are collected and stored. The committee recommends that the NSA no longer be allowed to collect these records directly from the “big three” American telecommunications companies, as has been the case since the Sept. 11, 2001, attacks. Instead, if the Review Group has its way, these telephone records would be kept for a limited period of time either by the telephone companies or by a “trusted independent third-party entity,” and the NSA would only be allowed access to these records if it could demonstrate a clear and pressing need.

The panel also generally agrees that the NSA’s electronic surveillance operations must be reined in. According to White House and intelligence officials who have read the report, the Review Group recommends that the White House impose severe limitations on some of the NSA’s signals intelligence (SIGINT) collection operations, and that additional checks and balances on the agency’s most sensitive activities be put in place to prevent further damaging disclosures, such as the October press reports disclosing that the agency spied on the cell phone calls of German Chancellor Angela Merkel.

Critics also won a victory on the need for more high-level oversight. Although the report does not say so explicitly, the Review Group also concluded that the House and Senate intelligence committees have not provided robust supervision of NSA’s activities. According to one Review Group staff member, the panel was struck by a recent admission by the U.S. intelligence community’s inspector general that he did not possess sufficient manpower to adequately oversee NSA’s electronic surveillance programs, which led the panel’s members to conclude that oversight of NSA’s activities should be moved to the West Wing of the White House.

The committee’s report also seeks to address the concerns of America’s friends and allies overseas by recommending that the White House establish clear and concise rules to protect the privacy of ordinary foreign citizens whose telephone calls and emails are currently being sucked up by the NSA’s global dragnet. The agency is bound to strenuously resist this proposal, as is the rest of the intelligence community, which has privately argued that foreigners do not, and should not, enjoy the same constitutional protections as American citizens.

The Review Group didn’t stop there. It also recommends what amounts to a complete overhaul of how the NSA is led, structured and operates. One source says it calls for separating U.S. Cyber Command from the control of NSA; another says it recommends that all future NSA directors be civilians rather than generals or admirals, as has been the case since the agency was created in 1952. It is not yet clear if this latter recommendation will be resisted by the Pentagon, which has steadfastly defended its control over the agency over the past six decades.

The Review Group also proposes that the U.S. intelligence community make public on a regular basis as much information as can feasibly be released about the number and types of secret electronic surveillance warrants approved by the FISA Court, as well as the declassification of more information about previous FISA Court rulings relating to NSA surveillance activities.

And finally, the panel recommends that the NSA immediately revamp its internal security practices so as to prevent another Snowden-like individual from getting access to sensitive SIGINT data, including the reimposition of the “need-to-know” standard, which would restrict intelligence community employees’ access to the information they need to do their jobs, and that information only.

For all that the report hits the NSA, a senior White House official who read it admitted that the agency’s critics will not be entirely pleased with its findings. It does not, this official said, recommend halting NSA’s most controversial surveillance operations; the panel does not deal with the thorny issue of demands by the high-tech companies for a more limited and discriminating use of subpoenas, court orders and FISA Court warrants by the FBI and the NSA. Nor does it make any substantive recommendations about reforming the FISA Court, which critics claim has rubberstamped virtually all of the NSA’s electronic surveillance requests.

The $64,000 question now becomes how the NSA and the rest of the U.S. intelligence community will react. The officials I spoke with clearly felt blindsided by the report, which they expected to be, as one of them put it, “a walk in the park.” Instead, it was anything but.

Matthew M. Aid is author of Intel Wars: The Seret History of the Fight Against Terror and The Secret Sentry: The Untold History of the National Security Agency


Read more: http://www.politico.com/magazine/story/2013/12/nsa-panel-report-snowden-slobberknockered-101208_Page2.html#ixzz2njsrxvtz

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Just because i'm near the punchbowl doesn't mean I'm also drinking from it.