The Cable

Top Obama Lawyers: Reforming the NSA Could Hurt Americans’ Privacy

As Congress considers legislation to reform the surveillance practices of the National Security Agency, senior intelligence officials have said publicly that they'd be willing to modify key aspects of how one of the most controversial programs is run. But now, the top lawyers for the NSA and other intelligence agencies are pushing back on that idea, arguing that they should be allowed to continue building a massive database of phone records on every American. It'd be better for American's privacy rights, they claim.

Under one proposal now pending before Congress, telecommunications providers, rather than the NSA, would hold onto the phone call records of hundreds of millions of people that the agency queries to find connections between suspected terrorists and people in the United States. And a bill with bipartisan backing would further limit the NSA's ability to collect that information in bulk. Agency officials have said the database is essential for stopping terrorist attacks. But some lawmakers want to restrict the agency's access to it, in part because the records can reveal private contacts and associations that may have nothing to do with a criminal act.

"I think it's no secret that the sponsors of this bill want to eliminate the bulk collection program," Robert Litt, the general counsel for the Office of the Director of National Intelligence, speaking of the bill sponsored by Sen. Patrick Leahy (D-VT) and Jim Sensenbrenner (R-WI).

Litt was joined by lawyers from the NSA, the FBI, and the Justice Department, who likewise tried to shoot down reform ideas, along with other proposals that have attracted bipartisan support in Congress. The board that heard their views was established in the wake of revelations about the bulk collection program and other NSA activities that some members of Congress believe have gone on for too long without restriction.

The NSA has previously argued that it was allowed by section 215 of the Patriot Act to store millions of phone records of Americans in order to find potential terrorists and their connections inside the United States. A court found that NSA could hold onto the data on the grounds that it was relevant to terrorism inquiries. In theory, storing the data with the companies, instead of at the NSA, would allow the telcos to serve as a kind of privacy watchdog. They'd be in a position to examine the government's requests for information about their customers and possibly to object to them in court.

But the intelligence lawyers warned that Americans' would be subject to even greater privacy incursions if their personal information were stripped from NSA's control.

Patrick Kelley, the acting general counsel of the FBI, said the phone company data could be made available to "other levels of law enforcement enforcement from local, state and federal who want it for whatever law enforcement purposes they're authorized to obtain it." He also raised a frightening prospect: "Civil litigation could also seek to obtain it for such things as relatively mundane as divorce actions," he said. "Who's calling who with your spouse ... So if the data is kept only by the companies than I think the privacy considerations certainly warrants scrutiny."

There was some irony in that idea. In September, the NSA's inspector general revealed several cases in which NSA employees illegally spied on partners or spouses in an incident known internally as "LOVEINT" (love intelligence).

Any act of Congress modifying the phone records database could include provisions prohibiting the use of telephone metadata for purposes not related to national security. And if lawmakers wanted to keep the information out of the hands of local police or civil attorneys, they could write a provision preserving its exclusive use by the NSA and the intelligence agencies.

Still, the lawyers painted dire scenarios of what would happen if section 215 was fully scrapped rather than modified. "We wouldn't be able to see the patterns that the NSA's programs provide us," Kelley said. "We'd be less agile, we'd be less informed, we'd be less focused, and as a result we'd be a lot less effective in preventing the attacks."

The lawyers also pushed back against a proposal being debated in Congress to appoint a "special advocate" to argue against the government's position in certain matters before the Foreign Intelligence Surveillance Court, which authorizes NSA surveillance. Currently, only lawyers representing the government appear. 

"There's a precedential issue that we're very concerned about," said Litt. "Are you going to set up a process that provides more protection for foreign terrorists than for Americans who are subject to criminal search warrants?"

The idea of a special advocate is included in the reform bill sponsored by Leahy and Sensenbrenner that already has more than 80 co-sponsors in the House and Senate. The advocate would not be present every time the government wants to get court approval for surveillance. Rather, he or she would weigh in on matters that affected interpretation of law.  A less ambitious reform effort by Sen. Dianne Feinstein (D-CA) authorizes the FISA court to designate an outside "Amicus Curiae" or "Friends of the Court" to offer an independent perspective.

Privacy advocates speaking to The Cable objected to Litt's reluctance regarding a special advocate. "There should of course be two sides arguing major cases in front of the FISA court," said the Electronic Frontier Foundation's Trevor Timm. "The adversarial process is a bedrock of our judicial system (and democracy), and one of the reasons we've seen such a secret warping of public laws in the past few years is because the [surveillance] court has never heard from anyone but the government."

In other cases, Litt opened the door to more modest reforms, such as retaining copies of Americans' records for a period of less than five years and reducing the kinds of information that the NSA is allowed to query. The other lawyers did not explicitly support those reforms.

The independent board, called the Privacy and Civil Liberties Oversight Board, is expected to deliver its recommendations to President Obama and Congress by the end of 2013. It's five members report to Congress but were appointed by the president.

The Cable

Global Push to Rein in U.S. Moves from Spying to Gitmo

More than 12 years after the United States launched its global war on terrorism, testing the outer limits of international law, many of America's allies are seeking to turn back the clock to a time when targeted killings, clandestine prisons, and domestic spying were more frequently associated with rogue states than with the leader of the free world.

Here at the United Nations, foreign powers, U.N. agencies, and experts have sought to limit American espionage, impose new constraints on the use lethal drone strikes, and grant new rights for detainees locked up in the war on terror. The campaign is unfolding in obscure U.N. committees that deal with human rights, Internet governance, and other international legal issues. Increasingly, a key goal has been to impose limits on Washington's ability to act beyond its own borders.

"The unipolar moment is over," said Antonio Patriota, Brazil's U.N. ambassador, who has joined forces with his German counterpart, Peter Wittig, to push a General Assembly resolution aimed at checking the National Security Agency's sweeping surveillance powers. "As we enter this new world there is no room for exceptionalism or unilateralism.... We need the same rules for everyone."

The Obama administration is fighting some of these efforts, as you'd expect. But on others, the United States has expressed a willingness to accept some greater constraints on its actions. It agreed, for instance, to shelve plans to bomb Syria. It promised to curtail its spying on friendly leaders and U.N. Secretary General Ban Ki-moon, a deeply pro-American diplomat whose talking points were stolen by NSA spies before meeting with President Barack Obama, according to reports in The Guardian and the New York Times.

"There is an effort to push back by the international community," Juan Mendez, an independent U.N. human rights watchdog and former Argentine political prisoner who endured torture during that country's "Dirty War," told Foreign Policy. "I think many governments, Europeans in particular, are moving backwards from their blind support for whatever the United States did after 9/11. As a result of this, they are asserting a need to go back to basics and reinforce international human rights standards and international humanitarian law standards."

Mendez, who currently serves as a U.N. special rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, is seeking to update the rules for the treatment of detainees. He has drafted a proposal to revise a code of conduct written in the 1950s -- known as the Standard Minimum Rules on the Treatment of Prisoners -- to reflect the evolution of international law over the past 60-plus years. The measures include new restrictions on the use of solitary confinement, and applies standard international guidelines for humanely treating incarcerated criminals to prisoners of war, immigrants, and patients of mental health facilities.

European governments, led by Denmark and Switzerland, have pressed this week for a U.N. General Assembly resolution that would condemn the use of torture and endorse Mendez's plans. But they have faced resistance from the United States, which maintains that applying the rules beyond the criminal justice system would go beyond the scope of Mendez's mandate. In closed-door negotiations, the United States has sought to scrub language that would apply the rules to place like Guantanamo.

"With respect to detention pursuant to the law of armed conflict, existing international instruments already govern the field," U.S. State Department lawyer Julianna Bentes told the committee. "Extending SMRs [Standard Minimum Rules] to cover additional categories would lead to confusion in both fields, and ultimately undermine state support for the U.N. standards for crime prevention and criminal justice."

The United States still wields enormous influence at the United Nations, leading efforts in the Security Council to combat terrorism around the world. Since 9/11, the U.N. Security Council has created a raft of resolutions requiring governments to pass and enforce anti-terror laws, and imposed sanctions on individuals and entities suspected of having links to al Qaeda. Prosecuting the war on terror is one of the few things the U.N.'s five major powers -- Britain, China, France, Russia, and the United States -- consistently agree on. They have backed international peacekeeping efforts in Somalia and Mali that target Islamist militants linked to al Qaeda.

But many smaller governments are increasingly reluctant to follow Washington's lead. Other rising powers, including Brazil and Germany, are seeking to take the initiative, promoting a raft of U.N. resolutions and rules that would curtail America's powers.

America's go-it-alone strategy has fueled anxiety beyond the current controversy over spying. Brazil's Patriota voiced concerns about the United States's use of drones to target suspected terrorists, saying that it "indirectly encourages others to do the same."

For the time being, there has not been a major push by governments at the U.N. to impose legal constraints on America's use of armed drones in foreign lands. But the matter has become the subject of an ongoing investigation by Ben Emmerson, the U.N. special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and Christof Heyns, the U.N. special rapporteur on extrajudicial, summary, or arbitrary executions. "Although drones are not illegal weapons, they can make it easier for States to deploy deadly and targeted force on the territories of other States," Heyns wrote. "If the right to life is to be secured, it is imperative that the limitations posed by international law on the use of force are not weakened by broad justifications of drone strikes."

Navi Pillay, the U.N. high commissioner for human rights, said she is also "seriously concerned about human rights implications for the protection of civilians of armed drone strikes carried out in the context of counter-terrorism and military operations" by the United States and Israel. During a debate on protection of civilians in August, Pillay urged countries to "clarify the legal basis for such strikes," noting that "the current lack of transparency surrounding their use creates an accountability vacuum and affects the ability of victims to seek redress."

In May, Pillay offered a broader critique of America's respond to terrorism in a speech to the Human Rights Council. "The objective of the global struggle against terrorism is the defense of the rule of law and a society characterized by values of freedom, equality, dignity, and justice," she said. "Yet time and again, my office has received allegations of very grave violations of human rights that have taken place in the context of counter-terrorist and counter-insurgency operations. Such practices are self-defeating. Measures that violate human rights do not uproot terrorism: they nurture it."

Pillay said the "injustice embodied" in the Guantanamo detention center -- where many individuals are subject to "indefinite" and "arbitrary" detention in "breach of international law"-- has become an ideal recruitment tool for terrorists.

Some of the push back is posturing by governments seeking to take advantage of the world's lone superpower being on the defensive. For example, China -- a country with a reputation for engaging in extensive online espionage of foreigners and ruthlessly cracking down on dissent at home -- urged the U.N. to curtail what it sees as American excesses.

At a U.N. meeting last month dealing with online communications, Xie Xiaowu, a Chinese diplomat, called on member states to confront a "certain country [that] is abusing their technological advantages to spy on other countries, steal information from organizations or individuals of other countries, and violate people's privacy."

It is imperative to establish "multilateral, democratic and transparent" international norms that are "fair, equitable and efficient" and that "respect the information sovereignty of all states and protect the fundamental rights of all citizens," he added. "Hegemony in the field of ICT [Information and Communications Technology] must be rejected."

For years, China and Russia have been pushing for a U.N. code of conduct for cyber-security. The United States and other Western governments harbored suspicions that the Chinese and Russian effort was largely aimed at kneecapping America's technical advantage online -- and reinforcing states' rights to curb freedom of expression online.

Other states expressing concern about American practices are doing so in part to shift blame away from themselves, U.N. experts say. Some of the nations complaining the most loudly also partnered with the NSA in its spying operations. 

The Brazilians have been embarrassed by the disclosure of an NSA listening station in Brasilia, right under the government's nose, said Bruce Jones, the director of New York University Center on International Cooperation. "In domestic terms, they have to create some distance" from the United States, he said.

Germany, Jones noted, is seriously offended by the revelations that the NSA listened in on German Chancellor Angela Merkel's cell phone conversations. But what they really want is to develop a closer relationship with American intelligence agencies. "What the United States is experiencing internationally is a combination of genuine anger, tactical posturing, and an effort by governments to get some cover by pursuing symbolic initiatives," Jones said. But like most of governments, Germany will still cooperate on the intelligence front with the United States. "It's in their interest to do so. It's not like they are going to stop cooperating."

Follow me on Twitter @columlynch.

AFP/ Jung Yeon-je