(Carrie, “Thoughts on the Proposals to Make FISA More Friendly”, 8-12, http://www.lawfareblog.com/2013/08/thoughts-on-the-proposals-to-make-fisa-more-friendly/)
There may be meaningful steps that are worth exploring that would foster public confidence.For example, it might help if there were a more consistent framework for declassifying information related to these activities. The drip, drip, drip of declassifying certain orders is, in my view, not helping. The orders on their own do not provide the full context of the activities, and it is likely that releasing the underlying documents would expose too many sources and methods.Similarly, selected examples of operational successes are both complicated to accurately extract, and turn attention away from the broader goals of the activities. Developing a better method of communicating the value of national security surveillance activities to Congress and the public could help. Finally, protecting foreign intelligence operational, analytic and oversight personnel from the budget mess might be a good idea. Wouldn’t it be rich if personnel involved in the national security surveillance activities, and oversight activities in particular, were subject to furlough or other budget cuts even as the president embraces calls for a new layer of oversight bureaucracy?
More transparency while justifying secrecy is the best middle ground.
Foust, Foreign Policy Research Institute national security fellow, 2013
(Joshua, “Managing NSA’s Public Image”, 7-9, https://medium.com/state-of-play/managing-nsas-public-image-a706d6411558)
It is a difficult balancing act. The U.S. intelligence community is subjected to far more public scrutiny than any other intelligence service on the planet — and even then it operates largely in secret.Congress has a unique opportunity to step in and shed some light on the nature of intelligence operations. The circular legal structures that allow for secret interpretations of secret laws need to be made open. It won’t be easy: Senators Ron Wyden and Jeff Merkley have tried to change laws to require more open legal reasoning for intelligence operations but both were voted down by their fellow Senators. The House of Representatives seems even less amenable to scaling back secret intelligence activities in the name of counterterrorism. The intelligence community also needs to be more upfront about the tradeoffs inherent to this discussion. Most members of the public are not trained in counterintelligence: They do not understand the damage or lost opportunities that come from certain kinds of openness. Public education about how those tradeoffs will play out in real life — even if it results in some lost effectiveness in some quarters — is a vital step toward rebuilding trust that intel operations are in the public interest.
Direct communication restores trust—the alternative is people assuming the worst case.
Corrin, Federal Times senior staff writer, 2014
(Amber, “Can the intelligence community win back public trust?”, 9-19, http://archive.c4isrnet.com/article/20140919/C4ISRNET07/309190004/Can-intelligence-community-win-back-public-trust-)
“I want to bring in an outside perspective and take a look at how effective we are in our current communications strategy. I don’t think we are where we need to be,” Rogers, who also is commander of the U.S. Cyber Command, said at the INSA Intelligence and National Security Summit in Washington. “Secondly, I’ve said I want to engender a broader dialogue about what we do and why we do it, and why I as a citizen should feel comfortable that that capability we have is not going to misused or will be used against us.” Part of the problem is the public no longer trusts conventional watchdog models, such as congressional oversight and legal authorities, Rogers said. “How you achieve a level of trust in a nation when those very mechanisms no longer enjoy a high confidence that they perhaps had previously or historically in our society?” Rogers said. “If those are going to be the venues that we traditionally had counted on to ensure that the American populace was comfortable with what we’re doing — because the elected representatives had specific details on what we do and how, a court oversaw it and gave us legal authority in many cases specifically — how do you create an environment of trust and confidence in those mechanisms if they don’t enjoy a level of trust they have historically?” The answer, Rogers said, is that the government needs to go beyond traditional mechanisms while also still ensuring compliance in existing laws and requirements. At least part of that requires a direct conversation between the intelligence community and constituents, as well as with international partners, he noted. “We’ve had what I think is a very incomplete dialogue to date. I would argue it’s not even a dialogue,” Rogers said. “We’ve heard details about amazing technical capabilities that people then assume we must be using indiscriminately. What we haven’t talked about is the legal framework in place that drives what [we] do. What are the controls and compliance mechanisms that [we] have in place to make sure these technical capabilities are not misused? Why should [the public] comfortable with these capabilities? That’s the dialogue I’m interested in having over time.”
Details will reduce NSA backlash.
Schindler, US Naval War College national security affairs professor, 2013
(John, “An Open Letter to the NSA”, 10-30, http://foreignpolicy.com/2013/10/30/an-open-letter-to-the-nsa/)
The NSA does foreign intelligence. Tell the American people a bit more about that. It’s overdue.Better to tell the story yourselves than to let your enemies do it. I’m not saying you need to let MTV film a reality show at agency headquarters — though I’ve heard worse ideas — but you need to level with the American people about what it is the NSA does and how it does it. It’s 2013, and because of the Internet and the spread of smartphones, practically all Americans rely on information technology to function on a daily basis. So you can’t blame people who until recently had never heard of SIGINT when they get a tad freaked out by the leaks they’ve heard so much about in recent months. But the truth is far less scary than the lies being told about the agency. If the agency’s current leaders can’t find a way to convincingly tell the American people what it does — including the indelible and truthful message that unless you’re in bed with foreign spies or terrorists the NSA has less than zero interest in you — then it’s time for new leadership. With NSA Director Keith Alexander likely to step down by next spring, that’s coming soon anyway, but there’s not much time to waste. By their nature, the agency’s leadership and public affairs units are reactive and unaccustomed to being in the public eye.But that era has ended — and it’s not coming back. Deal with it. Rebrand now while you still can and regain the public’s trust. I’m confident that once they understand what the NSA really does the vast majority of Americans will be glad the agency is on watch.
The first-ever quantitative assessment of online open government efforts has concluded that the perceived transparency of federal Web sites drives trust in government. ForeSee Results, a market research firm, conducted the study, which was slated to be released publicly on Tuesday. Nextgov was briefed on the results by ForeSee Results. Over the past year, many organizations have tracked the amount of previously undisclosed information that agencies are posting online. Earlier this month, the White House began tracking compliance with the president's open government directive. But no one has measured the effects of Web-based disclosure on American public opinion. The longstanding approach to quantifying transparency has been, "well let's measure how much data they put out there," said Larry Freed, ForeSee Results' president and chief executive officer. "To me, that's not measuring transparency. That may be measuring confusion." Freed opted instead to survey citizens on their reactions to government Web sites, using the model of the American Customer Satisfaction Index, for which ForeSee Results also collects data. Researchers asked users questions related to how thoroughly the sites disclosed information about what the agency is doing, how quickly information was made available online and how accessible that information was on the sites. The answers were then run through the ACSI statistical engine to generate a score on transparency. Many agencies already measure satisfaction with their sites using the ACSI e-government index. The transparency project surveyed more than 36,000 citizens who visited 14 federal sites during the fourth quarter of 2009.The aggregate transparency score was 75 on a 100-point scale. The authors acknowledged that there are thousands of federal sites beyond the 14 that volunteered to participate. "Even those that appear to have lower scores in this short list of 14 would certainly be nowhere near the bottom of the pack in a comprehensive index of federal government online transparency," the report states. Agency sites that scored the highest included the Agriculture Department's Center for Nutrition Policy and Promotion (83), the Health and Human Services Department's National Mental Health Information Center (81), the State Department's Bureau of Consular Affairs (79) and the main site of the General Services Administration (78). "If citizens find e-government transparent, they are more likely to return to the site, recommend it, and use it instead of a more costly channel," the study found. "They even express more trust in the government agency." Citizens who believe a site is highly transparent are 46 percent more likely to trust the overall government, 49 percent more likely to use the site as a primary resource and 37 percent more likely to return to the site, according to the study. "We have always assumed that greater transparency [and] more openness in government would link to greater satisfaction and higher trust in government," said Dave McClure, GSA's associate administrator for its Office of Citizen Services and Communications, who also was briefed on the results. "What this study does is help confirm that."
Regular displays of openness is the only politically sustainable strategy that maintains the tools necessary to protect national security.
Goldsmith, Harvard law professor, 2015
(Jack, “My Speech at ODNI Legal Conference: “Toward Greater Transparency of National Security Legal Work””, 5-12, http://www.lawfareblog.com/2015/05/my-speech-at-odni-legal-conference-toward-greater-transparency-of-national-security-legal-work/)
The third and related principle is to rethink, really rethink, the pervasive resistance to public disclosure of any aspect of any intelligence operation, including the legal rationale for such operations. Director Clapper explained the basis for this resistance when he said: “Before the unauthorized [Snowden] disclosures, we were always conservative about discussing specifics of our collection programs, based on the truism that the more adversaries know about what we’re doing, the more they can avoid our surveillance.” Clapper added: “But the disclosures, for better or worse, have lowered the threshold for discussing these matters in public.” Despite this ambiguous statement, and despite many voluntary ODNI disclosures related to the Snowden leaks, the intelligence community and many of its lawyers still appear to embrace an absolute presumption of secrecy when possible, and still see the costs of disclosure about secret operations in all-or-nothing terms. This attitude might have made sense in a world in which you could keep secrets. But in a world in which secret operations often become public, it doesn’t make sense. It doesn’t make sense because you are damaged much more by leaks and disclosures under pressure from leaks than you are by voluntary self-disclosure prior to leaks. Leaks and disclosure under pressure are reactive and invariably seem defensive and self-impeaching. When you disclose before leaks, by contrast, you can better control what is disclosed and the narrative about what is disclosed. You are also much more likely to get credit and gain legitimacy from self-disclosure, especially compared to disclosure via or in response to a leak. The main counterargument to this point, and the sentiment that still dominates in your world, is that, as CIA Director Allen Dulles once put it, “what a government, or the press, tells the people it also automatically tells its foes.” This argument has special salience in the surveillance context because any disclosure about collection techniques heightens the enemy’s communications operational security and causes it to shift to other forms of communication less subject to detection by the government. And I know it has super-special salience when you are on the inside watching the bad guys up close, and are loathe to give them any tactical advantage. But this argument proves too much as a basis for blanket secrecy. The same argument applies to fingerprint identification and most other investigative or surveillance tool in your toolkit. Secrecy about means and methods is an important value, but is not the only value. Other values include the medium-term legitimacy and support for your programs that I just discussed, and the notion that the governed should know at least the basic outlines of what its government is entitled to do, especially vis a vis its citizens. These and other values must be weighed in the balance. A related point is that not all voluntary revelations about an intelligence operation are equally harmful. Disclosure that the government has interpreted Section 215 to authorize bulk metadata collection is less damaging to the intelligence-collection mission than disclosure of the fine-grained details about how NSA collects and analyzes that metadata. Similarly, you can disclose large elements of the legal rationale and processes supporting targeted killing without exposing intelligence or the diplomatic deals associated with the program. I know that partial voluntary disclosures often lead to larger involuntary disclosures through subsequent unauthorized leaks, FOIA, and the like. But that risk must be balanced by the risk that the absence of any disclosure might undermine the legitimacy of the entire program if it leaks.Early openness about what the NSA was doing inside the United States might have diminished the effectiveness of the collection programs at a tactical level, but also would have given the government a better chance of securing longer-term strategic legitimacy for the programs. I am not denying that secrecy is vital to intelligence operations or to your legal work in support of those operations, even in operations in the domestic sphere. In the past at this Conference you heard from a CIA official who discussed the long-term operation to discover and take down the network of Russian sleeper agents living in the United States under non-official cover, and the vital need for secrecy in that operation. This shows clearly that the optimal mix of secrecy and openness is context-dependent even for domestic operations. My point is simply that the still-pervasive inclination toward absolute secrecy sometimes makes no sense and is often self-defeating.
Moves toward openness sufficient-don’t need to curtail.
Edgar, Watson Institute for International Affairs visiting fellow, 2013
(Timothy, “Timothy Edgar: Big Transparency for the NSA”, 8-1, http://www.wsj.com/articles/SB10001424127887323309404578617463152440542)
I am a civil-liberties lawyer who has worked both for Mr. Clapper and for the American Civil Liberties Union. I have a unique perspective on the vast gulf between the way the public views spy agencies and the way the intelligence community views itself. The intelligence community believes that it protects the public from dire threats, subject to strict oversight. Indeed, it was career national-security lawyers who were most disturbed by President George W. Bush's detour into executive unilateralism and warrantless wiretapping. They breathed a sigh of relief when that era came to an end. Following an intense and highly classified dialogue in which I participated during the latter half of the Bush administration, the intelligence community persuaded the Foreign Intelligence Surveillance Court to authorize bulk collection of phone records while putting these activities under a robust and highly detailed set of privacy and civil-liberties constraints. Queries of telephone-call records require that the targeted number is connected to an international terrorist organization. The targeted numbers must meet a well-defined legal standard—that of reasonable, articulable suspicion—and may only then be used to uncover, through sophisticated data analysis, the network of numbers with which the target has been in contact over time. Privacy safeguards are administered by teams of national-security lawyers in multiple agencies, and the entire process is subject to both congressional oversight and review by the FISA court. When the court and Congress identified compliance issues, the NSA took them seriously, overhauling their systems and creating a new office of compliance to address them. What, then, accounts for the public mistrust? Intelligence officials forget that the public sees none of this. Where the government sees three branches of government working together in harmony, the public sees a disturbing pattern of secret law and secret government accompanied by demands to "trust us, we are keeping you safe." Secret checks and balances appear to be nothing more than a pale shadow of our constitutional design. The FISA court may have reviewed the programs, but the public never got its day in court. The ACLU has challenged the constitutionality of NSA surveillance programs for years, but that case never got to the issue of constitutional rights. The intelligence community argued, and the Supreme Court agreed, that the civil-liberties groups couldn't maintain their lawsuit. Civil-liberties advocates represented a variety of people with entirely reasonable fears of monitoring. Whether they were actually under surveillance was a secret (and properly so). The government argued vigorously that this secrecy meant the case could not go forward, and the court agreed. Sens. Ron Wyden and Mark Udall encountered a similar Catch-22 in 2011 when trying to raise questions about the NSA call-records program, when the Patriot Act was up for review. Although they were briefed on the program behind closed doors, they made no headway in arguing for greater transparency with the public. The resulting debate was highly skewed. Administration officials were free to make misleading arguments that the Patriot Act was just like an ordinary subpoena. Any member of Congress willing to spend a few hours in a small room in the Capitol knew that secret court opinions had approved collection that reached far wider than any subpoena. Those who did know about the opinions could not express any concerns in open debate. Secrecy prevented the Congress, like the Supreme Court, from having a real argument over surveillance powers. Despite the Obama administration's best efforts, transparency is now on the rise. Mr. Clapper has chosen greater openness in reacting to the leak of the call-records program. Instead of providing the terse "no comment" that would have allowed the government to argue that legal challenges must be thrown out on secrecy grounds, in June Mr. Clapper confirmed the leaked program and provided details on its safeguards. The ACLU, seeing a stronger argument, promptly refiled its suit. Mr. Clapper made the right call—the government should welcome, not sidestep, debate on whether its programs are constitutional. President Obama should go further, wresting control from the leakers and restoring trust with the public. He should ask Mr. Clapper to look across the intelligence community and disclose to the public the types of large databases it collects in bulk, under what legal powers or interpretations, and pursuant to what safeguards to protect Americans' privacy—while keeping necessary details secret. Many aspects of surveillance must remain secret. For example, the government should never provide a list of companies from which it acquires big data sets. Despite what Americans see in the movies, the NSA doesn't actually collect everything. Knowing which companies are included and which are not would tip off terrorists about how to avoid detection—telling them which providers to use and which to avoid. Likewise, the government will never be able to confirm or deny whether particular people are under surveillance, but it should avoid the temptation to use this necessary secrecy to avoid meeting legal challenges to its activities. Thegovernment has good arguments for why its programs are both vital for national security and perfectly constitutional. It should make them.
Codify Statute – 2NC
Statutes are key to solvency—gives everyone a perception of legal certainty.
Sales, Syracuse law professor, 2014
(Nathan, “NSA SURVEILLANCE: ISSUES OF SECURITY, PRIVACY AND CIVIL LIBERTY: ARTICLE: Domesticating Programmatic Surveillance: Some Thoughts on the NSA Controversy”, I/S: A Journal of Law and Policy for the Information Society, Summer, lexis)
A second principle follows from the first: Programmatic surveillance should, wherever possible, have explicit statutory authorization. Congress does not "hide elephants in mouseholes," n50 the saying goes, and we should not presume that Congress meant to conceal its approval of a potentially controversial programmatic surveillance system in the penumbrae and interstices of obscure federal statutes. Instead, Congress normally should use express and specific legislation when it wants to okay bulk data collection. Clear laws will help remove any doubt about the authorized scope of the approved surveillance, thereby promoting legal certainty. Express congressional backing also helps give the monitoring an air of legitimacy. And, a requirement that programmatic surveillance usually should be approved by clear legislation helps promote accountability by minimizing the risk of congressional shirking.n51 If the political winds shift, and a legislatively approved program becomes unpopular, Congress will not be able to hide behind an ambiguous statutory grant of power and deflect responsibility to the President.