Reforming the Spy Game

When it comes to secret intelligence, the United States sometimes behaves like a true democracy.  It reminds me of the Leonard Cohen line, “democracy is coming…to the U.S.A.”

President Barack Obama’s speech on January 17 marked an important occasion in the ongoing American struggle to conduct espionage while remaining true to democratic values. The U.S. has been here before: at the outset of the Cold War when a public debate ensued about creating the U.S.’s first peacetime intelligence system, a debate that had President Harry Truman fretting over whether he was giving birth to an American ‘Gestapo’; in the heated Congressional inquiries of the 1970s into spy abuses, during which Senate Committee chair, Frank Church, famously called the CIA a “rogue elephant”; in countless combative inquisitions into the nomination of U.S. spy chiefs; in endless memoir wars; and even in the unresolved debate over whether the U.S. intelligence community was simply wrong about Iraq’s weapons of mass destruction program, or was a politicized patsy for a scheming Bush administration.

Where Obama’s speech will ultimately lead the U.S. remains to be seen, but it is a significant marker of change.

What was unique about the Obama speech was his unprecedented willingness to address both the realities of U.S. spying (especially signals intelligence) and the dangers that such intelligence gathering can pose. Never before has a U.S. president spoken at such length about the intelligence ‘holy of holies’: the collection of electronic communications. Never before has a sitting president staked out a position for reform of signals intelligence in the public arena.

In taking positions for and against Obama’s specific proposals on reining in the National Security Agency (NSA) and curtailing dragnet surveillance, most commentators have missed this important context.

In the wake of the Edward Snowden revelations, the Obama administration has been under intense and mounting domestic and international pressure to rein in U.S. intelligence gathering. Domestically, it has seen a series of constitutional challenges launched against NSA surveillance, and has already lost one round in what will be a long legal battle. Congress is badly divided—but not on the usual partisan lines—over what to do about setting limits to U.S. espionage.

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The media is paying close and sustained attention. Public interest groups, like the Electronic Frontier Foundation, a leading advocate of internet freedom, have mobilized opposition to so-called dragnet surveillance. The U.S. telecommunications industry is up in arms, alarmed about the impact of spy revelations concerning their close relationship with the NSA on their reputations for safeguarding data and their global competitiveness.

On the international front, the Snowden revelations have caused estrangement between the United States and its close European partner, Germany; between the United States and its hemispheric ‘amigo’ and NAFTA partner, Mexico; and between the U.S. and Brazil.  Russia’s Vladimir Putin has poked a stick in the U.S. eye by offering safe haven to Snowden.  The Chinese have batted aside U.S. complaints about aggressive Chinese cyber espionage by pointing to the NSA programs, and are now well armed with arguments about American duplicity with respect to efforts to reach any bilateral or international agreement on norms of internet freedom.

Something had to be done, and Obama has proceeded with some deliberation, appointing an impressive review commission to come up with proposals and taking their massive study, with its 46 recommendations, on his Christmas holidays in Hawaii. His January 17 speech showed that he was willing to be led, perhaps to an extraordinary degree, by the recommendations of his review commission, even when he was not sure where exactly those recommendations would take him.

A major case in point is Obama’s decision to end the warehousing of communications by the NSA and to transition to a system whereby archived communications would be stored and retained by some other entity (not a spy service). The shape of this system will be left to further study by the Attorney General and the U.S. intelligence community, who have been directed to come up with answers by March 28.

Obama also embraced the Presidential review commission’s recommendation that warehoused electronic data should be accessed only with the support of independent judicial findings (in essence, signals intelligence warrants). He supports adding a privacy advocate to the deliberations of the secret Foreign Intelligence Surveillance Court that approves access to stored communications under the provisions of the Patriot Act.

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For an international audience, Obama offered several pledges in his speech. They included promises that greater political control would be exercised by U.S. leaders over the conduct of sensitive intelligence operations; that intelligence would be targeted only at legitimate threats and security requirements; that the U.S. would not seek to spy on friendly foreign leaders and governments except in extremis; that it abjures the practice of industrial espionage and would not use its spy capabilities to benefit the U.S. private sector; and that American intelligence capabilities would not be used to suppress criticism or dissent.

Obama even pledged to consider extending the privacy rights of U.S. citizens to non-citizens around the world—a fairly stunning, if vague, proposal. All the while, he reminded his international audience that the U.S. would not engage in unilateral intelligence disarmament, that it was taking a lead in being transparent about its intelligence practices, and that it has exceptional responsibilities as the world’s only intelligence superpower.

Where Obama’s speech will ultimately lead the U.S. remains to be seen, but it is a significant marker of change. It is rooted in his centrist politics and in his conviction that he is launching a ‘great debate’ between those who uphold the need for security and value intelligence, on one hand, and those who defend civil liberties, privacy and the idea of a free internet, on the other. Obama, the democrat, believes there will be a natural convergence between these camps, and believes in the idea of a debate to get the U.S. there. He may be overly optimistic about his chances.

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