(Jack, “Reflections on NSA Oversight, and a Prediction That NSA Authorities (and Oversight, and Transparency) Will Expand”, 8-9, http://www.lawfareblog.com/2013/08/reflections-on-nsa-oversight-and-a-prediction-that-nsa-authorities-and-oversight-and-transparency-will-expand/)
Second. I also have a different view of the relationship between NSA oversight and the NSA’s national security mission (as opposed to its internal security mission – I know they are related, but Stewart separates them and speaks of the former at the end of his post). I agree with Stewart that NSA is subject to rigorous and intense oversight that can affect its national security mission by preventing NSA operators from collecting intelligence in certain contexts (for example, inside the United States, or against American citizens), and more generally by chilling NSA initiatives for collection and analysis at the margin (though the flip side of this “chill” is called prudence). But whether the oversight and regulations are in these senses harmful, they are still necessary. Here’s why. Even after the Snowden revelations, few Americans know what the NSA does because so much of what it does remains secret. The public has hints – confirmed by Snowden, and others – that NSA’s technical collection, storage, and analysis capabilities have grown enormously since 9/11. Even these few hints show that, like no other American institution, the NSA represents power, scale, technology secrecy, and intrusiveness – a combination that understandably causes skepticism and concern. Presumptively in our democracy, important national policies are vetted in public, subject to criticism and analysis in the press and by elected representatives and civil society and courts, and ultimately approved, or not, by the People in elections. The accountability system forces public officials to justify their actions, to address criticisms, to confront new and critical information and arguments, to consider new approaches, and to correct mistakes. This messy process does not always produce optimal policies. But it produces pretty good policies on the whole, allows for pretty robust policy change in light of new information, and in any event is a more legitimate system for executing public policy than one that takes place in secret. Few of the traditional elements of democratic scrutiny and deliberation apply to the NSA. Even after the Snowden affair, NSA and its oversight bodies remain extraordinarily secretive. Occasionally General Alexander or another top NSA official testifies before Congress. But these officials rarely face tough questions in public and do not reveal more than they want to – that happens, if at all, in classified settings. NSA is governed by publicly enacted laws. But many of the laws are obscure, esoteric, or outdated. The actual governing regime for NSA results from mostly secret interpretations of these laws by executive branch lawyers and judges on the FISC; and the governing regime seems more extensive and more complex – in its authorizations and its restrictions – than the law on the books. This is not unusual, of course. In other contexts law accretes in many directions through interpretation and practice. But when this happens with regard to NSA, citizens and the press and civil society and ordinary federal courts cannot (except to the extent of leaks like Snowden’s) assess these accretions to determine whether they approve of them. There are good reasons why normal public lawmaking, law interpretation, and review practices do not apply to the NSA. Surveillance techniques are fragile. Full public scrutiny of NSA operations would reveal those operations to our adversaries in ways that would seriously undermine, if not destroy, their effectiveness. We need not be embarrassed about this need for secrecy (though the degree of secrecy almost certainly relates to the abundance of leaks, including those by Snowden). But we should also not deny that the nature, scale, and scope of secret NSA activities are a departure from normal operating procedure in a democracy, a compromise needed to meet modern national security threats that is fraught with the possibility (or appearance) of error, abuse, overreach, non-accountability, closed-mindedness, resistance to change, and other evils that democratic deliberation and review are designed to avoid. This is the background against which to understand and assess NSA oversight. NSA’s robust oversight system is a substitute for traditional public checks and balances. But it is a dim substitute. The government ramp ups scrutiny behind the wall of secrecy as a replacement for the impossibility of normal public scrutiny. Such secret scrutiny, however robust it may seem to those subject to it, and even accounting for Snowden’s leaks, is less demanding and overall less robust than its normal public counterpart. Which brings me to the relationship between oversight of NSA and NSA’s national security mission. The right way to think about this relationship at the most general level is that scrupulous oversight and regulation of NSA empowers and enhances its mission. Intensive scrutiny of NSA activities is a vital prerequisite to its political sustainability before Congress and the public, and thus to NSA receiving the authorities it needs to do its job. This was true of the original creation of the FISC (in the 1970s) and the congressional intelligence committees (also in the 1970s), and of the 2008 amendments to FISA, which expanded NSA’s authorities but also significantly ramped up NSA checks and oversight. These constraints are also key to NSA surviving the spate of Snowden revelations – the main reason there has not been a much greater outcry in the United States about the scope of NSA’s surveillance activities is that they are subject to and have been approved by so many adversarial institutions, albeit in secret. (Imagine the reaction to Snowden if the Attorney General and FISC had not approved of its activities, and if the intelligence committees had not been fully informed.) Stewart thinks that the painful and sometimes politically opportunistic checks on the NSA threaten to defeat its security mission. Even with their warts, I think they are necessary to the security mission. Privacy regulation of NSA is not just about protecting privacy.It is also about enhancing the NSA’s public credibility for acting responsibly and in the public interest – a credibility that is crucial for the NSA to be able to exercise its scary powers in secret. In some instances, of course, regulation and oversight can slow or restrict NSA activities in ways that affect the national security mission. (This was true of the pre-9/11 “wall,” and it is almost certainly true of the geographical and citizenship limits on NSA’s surveillance powers.) The proper balance between NSA oversight and transparency, and NSA’s authorities, must constantly be assessed and updated, in every direction. But it is unrealistic to think that NSA could carry on its current mission, which involves extraordinary and unprecedented surveillance in secret, without extraordinary and unprecedented checks on its activities. The two go hand in hand. Sometimes, probably often, regulation and oversight that seem to lead to less than optimal security is actually optimal, because the alternative to the oversight and regulation is not more NSA discretion to surveil, but rather less discretion because the authorities will not be granted in the first place without the intrusive oversight. (Again, enhanced restrictions on surveillance of U.S. persons is an example.) The challenge for the NSA and for the country is to find the level of scrutiny and transparency that allows NSA the greatest freedom to do its security mission that is consistent with the effectiveness of its surveillance methods and public confidence that NSA is acting properly and in the public interest. Many people have different views about how this complex balance should be struck, especially in light of Snowden’s revelations. But here is a prediction. Whatever happens in the short term, in five years the NSA will have much broader authority than today to surveil in the U.S. homeland, not just for counterterrorism purposes, but also (and especially) in order to provide national cybersecurity. It will have broader authority because increasingly diffuse and powerful national security and cybersecurity threats will require it. And that broader authority will be accompanied by greater oversight, review, and auditing than at present, and greater NSA transparency as well – not because this scrutiny will (necessarily) better protect privacy, and not without potential costs to security, but because it will enhance trust in NSA. Two important lessons of the last dozen years are (1) the government will increase its powers to meet the national security threat fully (because the People demand it), and (2) the enhanced powers will be accompanied by novel systems of review and transparency that seem to those in the Executive branch to be intrusive and antagonistic to the traditional national security mission, but that in the end are key legitimating factors for the expanded authorities. This was true, I argued in Power and Constraint, about habeas review of GTMO detentions, enhanced congressional and judicial oversight of military commissions, the 2008 amendments to FISA, and greater public transparency and congressional oversight of targeted killing by UAV (a process still in flux). And it will be true of expanded NSA authorities as the NSA’s vital capabilities become even more important to our security. In this sense, the Snowden revelations – to the extent that they force NSA to open up, and to get used to greater public scrutiny, and to avoid excesses, and to recalibrate its understanding of the tradeoffs between openness and security – might one day be seen to have paved the way to broader NSA powers.
A2: Transparency Links
The CP’s managed transparency reduces secrecy in productive ways without disarming intelligence agencies like the AFF.
German, Brennan Center for Justice fellow, 2011
(Mike, “ Congress Needs To Overhaul U.S. Secrecy Laws And Increase Oversight Of The Secret Security Establishment”, July, https://www.aclu.org/files/assets/secrecyreport_20110727.pdf)
3. Secrecy undermines security The whole purpose and justification of laws permitting the U.S. government to hide information from the people they are working for—the American people—is national security. Yet, when secrecy is imposed beyond the very narrow circumstances where it is truly justified, it tends to diminish, not increase, the security of the American people. • Secrecy prevents effective information sharing. State and local law enforcement, emergency response personnel, other government and private sector entities, and the general public all need access to timely and accurate information about realistic threats to their communities and the appropriate methods for effectively addressing such threats. Excessive classification forces federal government officials to withhold crucial information not only from each other, but also from these other stakeholders. Rather than reducing the classification of terrorism-related intelligence that might affect our local communities so that it can more easily be shared with state and local law enforcement and first responders, the federal government has instead developed programs to increase the number of state and local officials that receive federal security clearances. But receipt of information by a cleared officer does not solve the problem because the information still cannot be shared with other stakeholders inside and outside government. Washington, D.C. Metropolitan Police Chief Cathy Lanier explained, “[i]t does a local police chief little good to receive information—including classified information—about a threat if she cannot use it to help prevent an attack.”107 Simply increasing the number of cleared officers, though expensive, does little to remedy the problem of over-classification of terrorism intelligence. • Secrecy produces flawed intelligence and undermines effective policy. Excessive secrecy means that policymakers are often not fully informed of important developments or key pieces of information implicating the reliability of official intelligence estimates.108 Investigations into the intelligence failures regarding the presence of weapons of mass destruction (WMD) in Iraq prior to the U.S. invasion, for example, found the intelligence community made significant efforts to validate the separate pieces of information it received, but in the end its “finished” intelligence was wrong.109 This failure was not the result of a lack of information; rather it was the natural product of a fatally flawed analytic process. The intelligence process is flawed because it relies on a closed analytical system that compartmentalizes information, strips it of key details regarding the sources and methods by which it is obtained (which often provide the best clues as to its reliability) and then limits its distribution, preventing scrutiny from outside experts. When the Iraq WMD intelligence estimates were finally made public, they revealed that the intelligence community had relied on an untrustworthy source named “Curveball” despite ample warnings that he was a fabricator.110 Likewise, policymakers failed to heed dissenting opinions within the intelligence community about whether aluminum tubes Iraq purchased were designed for use in a nuclear centrifuge.111 Vigorous and open debate tends to uncover such critical errors in fact or analysis before poor decisions are made. A secret analytic system that obscures critical facts and opinions will inevitably produce unreliable information. An informed public enhances security. Reducing the secrecy surrounding terrorist threats and counterterrorism efforts will provide the public with the information necessary to quell inappropriate bias, put threats into proper perspective and respond appropriately. Widespread knowledge and a prepared citizenry are two of our greatest strengths—and they are both stymied by the excessive classification and compartmentalization of national security information. Eleanor Hill, Staff Director of Congress’s investigation into 9/11, called “an alert and informed American public” the intelligence community’s “most potent weapon,”113 and the 9/11 Commission concluded that publicity about the increased terrorism threat reporting during the summer of 2001 might have actually derailed the 9/11 plot.114 Yet too often the government’s public information campaigns mislead more than they enlighten, spreading fear and sowing suspicion rather than providing timely, accurate and reliable information the public can use.115
Focusing too much on secrecy actually undermines counter terrorism.
Strossen, NYU law professor, 2014
(Nadine, “Reducing Secrecy: Balancing Legitimate Government Interests with Public Accountability”, Harvard Journal of Law and Public Policy http://www.harvard-jlpp.com/wp-content/uploads/2015/02/Strossen_Final.pdf)
Now let me state a few factual premises on which I hope we can all agree.14 First, our classification system is dysfunctional, hugely bloated, and covers material that poses no genuine security risk.15 Second, and relatedly, our system is flooded with leaks16—as an inevitable counter to this excessive secrecy and essential for government accountability to We the People, the ultimate governors.17 Third, excessive secrecy is a huge waste of our precious security resources.18 All of you fiscal conservatives out there should balk at the huge cost of the counterproductive classification system—almost $10 billion in 2012.19 And that doesn’t include classification expenses incurred by the security agencies themselves20 because, ironically, those numbers are classified!21 Fourth, excessive secrecy actually undermines national security by preventing effective information sharing, thus leading to flawed intelligence.22 This point was underscored by none other than a former head of the whole classification system, J. William Leonard, who was a former Director of the Information Security Oversight Office. As he said: “Government secrecy just about guarantees the absence of an optimal decision on the part of our nation’s leaders, oftentimes with tragic consequences for our nation.”23 Additionally, the Bipartisan 9/11 Commission actually concluded that excessive secrecy could well have contributed to the 9/11 attacks.24 Given the Federalist Society’s commitment to empowering state and local governments,25 I should stress state and local officials’ complaints that undue secrecy has hampered their ability to fight terrorism,26 thus endangering all of us.27 For example, let me quote Commander Michael Dowling of the LAPD’s Counterterrorism Bureau: “[The federal government’s] classification process has been a substantial roadblock to [local law enforcement’s] capacity to investigate terrorism cases and work hand-in-hand with these federal agencies.”28