Beware Of Task Forces Bearing Reforms

President_Barack_Obama228px-Picture_of_Edward_SnowdenBelow is my column in USA Today on the NSA proposed reforms. I do believe that there are many worthy suggestions among the 46 recommendations, particularly the amending of Section 215 of the Patriot Act. However, what is missing is any true reform in ending this massive surveillance program since the White House panel started with the presumption that it was lawful. What remains are interesting but largely collateral changes. This includes a worthy proposal of adding an advocate to the FISA secret court. However, the panel does not (as with the program itself) seriously consider the need or the questionable legality of the secret court. Indeed, by tinkering around the edges of the program, the task force would effectively legitimize the program for the future. It will become the new normal in the President’s vision of a surveillance-friendly model of privacy.

The task force does call for serious changes in clearance rules however to avoid future disclosures of the abuses revealed by Edward Snowden. What is lacking is one measure that would go far in showing good faith by this President after years of rolling back on privacy: a pardon for Edward Snowden. Such pardons are not given because the subject is innocent or that a president agrees with his actions. They are granted in the totality of circumstances that mitigate the crime, including the disclosure of abuses that were long ignored, if not supported, by both the White House and Congress. A pardon can be legitimately conditioned on certain measures such as the return of undisclosed documents (which is a massive amount of files) and the signing of a non-disclosure agreement to allow prosecution for future disclosures. That would prevent further damage with disclosures, as suggested by at least on ranking intelligence official. I do not take violations of classification laws lightly and I understand the anger of many officials. However, the current standoff is not just undermining the credibility of the Administration but also doing little to limit further damage. I do not believe that Snowden is using the document to force such a pardon which remains unlikely. However, it is time to consider it. Despite the President’s understandable opposition to his method for raising the abuses, the Snowden disclosures have caused a comprehensive and international reexamination of surveillance rules, including new international measures to protect privacy. Perhaps it may be time to stop hunting the man and focus exclusively on the abuses that he disclosed. The column below is unfortunately limited in space, but it tries to raise some of these issues.


With the release of the recommendations of President Obama’s review board on the NSA phone-record surveillance program, it is easy to feel like that Trojan looking down at a magnificent wooden horse outside the city gates and warning his fellow citizens to “beware of Greeks bearing gifts.” The same can be said of federal task forces bearing “reforms.”

On closer examination, the 46 recommendations of the task force are largely cosmetic and administrative changes that notably keep one thing: the program itself. Under the “reforms,” the massive gathering of hundreds of millions of communications records by the National Security Agency could continue. Meanwhile, the administration is still hunting Edward Snowden, the government contractor responsible for disclosing these abuses.

In other words, we want reforms so long as we can punish the man who forced us into reforms.

Task force Tylenol

In Washington, task forces work like Tylenol: they reduce the symptoms of scandal while leaving the cause untouched. The task force was always expected to suggest changes, given both domestic criticism and the outcry from some of our closest allies. But the task force was also expected to assume that the president has inherent authority to legally capture records of calls and e-mails without a warrant.

That is a view not shared by a conservative judge this week in Washington. U.S. District Court Judge Richard Leon found that the surveillance program was flagrantly unconstitutional and questioned not just the legality but also the efficacy of the massive surveillance program.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of … analyzing it without judicial approval,” he wrote.

Leon correctly observed that the Framers would have been “aghast” by the evasion of the Fourth Amendment, which protects against warrantless searches and seizures.

By starting with the view that the program is lawful, the task force recommended many changes that require little more than moving boxes on organizational charts and ordering new letterhead. Among other things, it suggested that the “metadata” be simply housed with the telecommunications companies rather than the NSA. There are many worthy proposals, though most involve discretionary limits that would be imposed by the President (limits that would remain discretionary).

It suggested that the NSA be placed under civilian control and that a key office be moved outside of the agency. It also recommended that the agencies tighten security clearances — presumably to avoid another Snowden.

That last proposal clearly resonates with the White House, which has worked hard to manage the scandal more than to reform the program. From the outset, the creation of the two task forces (one on surveillance and one on privacy) was met by skepticism by the civil liberties community.

Fox in the henhouse

On this task force, the president picked Michael Morell, a former CIA deputy director under Obama (who served during the alleged abuses); Richard Clarke, the Bush U.S. counterterrorism chief; Peter Swire, a former Obama economic and privacy official; Cass Sunstein, a former White House regulatory official who has publicly supported draconian national security measures; and Geoffrey Stone, a University of Chicago law professor. While Stone and Swire were viewed as more protective of privacy, it was a board that seemed to guarantee incremental rather than sweeping changes.

This effort was further undermined when Obama ordered the involvement of his national intelligence chief John Clapper, who had just admitted publicly that he lied before Congress to conceal the scope of this very program. Of course, Clapper was never investigated, let alone prosecuted, for the crime of lying to Congress. Instead, Obama has called for the pursuit and punishment of Snowden, who disclosed the abuses Clapper lied about.

This week, former CIA director James Woolsey (who was not part of this task force) went as far as to call for Snowden to be “hanged by his neck until he is dead.” Simultaneously offering reforms and the rope can send a curiously conflicted message.

A federal judge has now ruled that what the president was doing was unlawful. Congress and the White House now agree that abuses occurred and reforms are needed. Before the White House implements reforms to prevent the next Snowden, it is time to deal with the current one.

There is one concrete way for the president to demonstrate good faith in dealing with the reforms: Pardon Edward Snowden.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.

30 thoughts on “Beware Of Task Forces Bearing Reforms

  1. What crime did Snowden commit? Everything he uncovered and has publicly disclosed was illegal under the Constitution or illegally “classified” as protected from disclosure. Snowden is our Prometheus (look it up!) and an important Patriot.

  2. Something is wrong in America.

    40 years ago the Nation was prepared to impeach a president for wiretapping ONE office…
    … Now that we’ve had a series of Presidents spying on the entire Nation, the entire Nation couldn’t care less.

    When will the violation of the Fourth Amendment become a prosecutable offense, again?

  3. Let’s also recognize, aside from Professor Turley’s very logical and correct reasoning, how much money would stop flowing into the pockets of current and former “civil servants” (a la Michael Chertoff) if this infrastructure were to be turned off. There is a tremendous amount of bureaucratic, executive and legislative branch, and military industrial complex inertia to work against the termination of these illegal programs. The Constitutional violations alone are heinous enough, but when those in charge are profiting handsomely from this machinery, there’s little chance this will end without first cleaning house.

  4. ” the pockets of current and former “civil servants” (a la Michael Chertoff)”

    Just one point: Chertoff was not a civil servant. He was a political appointee.

    Unlike civil servants, appointees are free to carry out their duties so as to benefit the private interests of themselves and their business associates.

    As for the main topic of reform of the NSA, even if announced there is no way to know if the reforms are being carried out. Even if placed into law, the President (any President) can simply write a secret executive order authorizing any intelligence program he (or she) chooses. This includes the kidnap, torture, and/or murder of US citizens, in the US, without charge, trial or oversight.

  5. The presidents task force is comprised of a group of chair polishers operating within a predetermined CYA (Cover Your Arse) paradigm implemented solely to conceal the truth from public disclosure/debate.

    What an utter charade.

  6. Excellent article Professor. Now if only one or two congresspersons or senators (lower case for both as I have completely lost respect for the bunch) would read it and take head. Or alternatively, if our country of 200 million political hacks would wake up and realize that both Demos and Repos are corrupt and a change is needed. Ahh well, one can dream.

    Great job Mr. Turley!

  7. I concede [i.e. do not dispute] that many US citizens have expectations that who they call or who calls them and how long they talk is a part of the right to privacy. At least they expect that it is. I doubt we have any precedent to that fact or any dispositive arguments in support. The question I ask is “After 9-11, and assuming that the right to privacy includes who, when and where, but not what was discussed, should we trade off this arguable right for increased security?” The data can and has helped identify terrorist activity.

    I say, keep this data, privately if necessary. But have it available when reasonable grounds exist to search it for evidence of conspiratorial activity.

  8. Great piece! I found your Tylenol analogy ironic. It was back in the early 80’s when a person in Chicago[almost certainly James Lewis] put Tylenol laced w/ cyanide on store shelves, killing several people. It was because of this act of terror that we now have shrink wrap around virtually every product we buy. Now, we all hate shrink wrap but that measured and appropriate response took care of the problem. Tylenol became a shining example of corporate accountability, removing ALL of their products from stores and spearheading packaging preventing tampering.

    If we were to have used the NSA approach to the Tylenol problem we would have every person buying ANY product in a retail outlet photographed, fingerprinted, and have a chip implanted under their skin following them as they shopped. They never would have even thought of shrink wrap.

  9. You are right Jonathan. Excellent suggestion & a chance for the president to regain popularity, save face, retain his general position. If it happened we’d all soften up on him. (except John Baner of course)

  10. An excellent article. I think that there is no question that the NSA broke the law, the 1986 Pen registers act. What the NSA is doing is placing pen registers on virtually every Americans phone and other communications. The judge made the right call, and it is not even a close call.

    Given my limited knowledge of crypto operations, I do know that to be successful, one needs a massive amount of data or codes. Without that volume, cracking codes or tracking criminals is very much harder if not impossible. So the question for me is a technical one and a legal one. Just how much such data is needed for the NSA and other security agencies to do their legitimate jobs? Then if some exemption is needed for them, it should be a matter of debate and then legislation. So I am not quite as jaundiced as some and am not willing to dismiss this panel outright.

  11. Dale
    1, December 20, 2013

    Why should the NSA be able to collect data from you without a warrant?
    What have you done to warrant the collection of your data?
    If “since 9/11″ is the given reasoned explanation, then that hints that the Framers of the Fourth Amendment got it wrong and that for over 230 years before this “since 9/11″ event, we were never really “safe”?

    What amazes me, is that NO ONE can give a legal reason why the Founders got the Fourth Amendment wrong, yet many flock around the notion the Fourth Amendment doesn’t apply anymore and is irrelevant to our society.

    Now, I know you’re not Nancy Pelosi, or Dianne Feinstein, or John Boehner or even Rand Paul… so, if none of them can articulate as to why the Fourth is wrong and irrelevant and seemingly out of step with America or how the Founders got the Fourth so terribly wrong that it deserves to be ignored…
    … Maybe then, you can help clear up why the NSA thinks YOU important enough of a threat to society to track. Maybe?

    NOUN (NSA) + VERB (warrantless collection of data) + 9/11

  12. I was listening to the news this evening and some talking head was making barely conciliatory remarks regarding reigning in NSA but moaning about damage to US interests by the way Snowden made his revelations.

    It occurred to me that the more the case is built regarding damage to US interest the more damning to Obama and Clapper.

    Obama and Clapper specifically lied to the American public regarding spying on each and everyone of us. And it is specifically the administration’s government policy, claiming to protect state secretes, that prevented these issues from being adjudicated in a court of law.

    The lies and policies of this administration prevented any other course of action from bring resolution to this important constitutional issue.

    Any damage to the US is owned part and parcel by the administration because of their intransigence and refusal to deal openly and legally with the vital issue of spying on the US pubic. .

    Snowden is a hero who acted with great danger to himself to defend the constitutional rights of all US citizens.

    Let them build the case for damage to US interests – all the more reason to indict Clapper and other high administration officials.

    I suspect these officials who have done so much to subvert the constitutional rights of every US citizen will not want to delve too deeply into the issue of treason.

  13. But don’t get me wrong. The saving grace is these guys really do have a sense of humor that puts things in perspective:

    “The fact of the matter is that the US, for all our warts, is a country that abides by rule of law that cares deeply about privacy, that cares about civil liberties, and cares about the constitution,”

    Oh! please stop, you are cracking me up so much my sides ache.

  14. Some of you may be familiar with Martin Niemoeller. He had been locked up by the Nazis. If you Google his name you can find a good topic on this subject about speaking out. Here is an excerpt:

    According to the Martin-Niemöller-Foundation the text is as follows:[2]

    First they came for the Communists,
    and I didn’t speak out because I wasn’t a Communist.

    Then they came for the Socialists,
    and I didn’t speak out because I wasn’t a Socialist.

    Then they came for the trade unionists,
    and I didn’t speak out because I wasn’t a trade unionist.

    Then they came for me,
    and there was no one left to speak for me.

    Niemöller created multiple versions of the text during his career. The earliest speeches, written in 1946, list the Communists, incurable patients, Jews or Jehovah’s Witnesses, and civilians in countries occupied by Nazi Germany. An English translation of Niemöller’s speech for the Confessing Church in Frankfurt on 6 January 1946 states:[1]

    When Pastor Niemöller was put in a concentration camp we wrote the year 1937; when the concentration camp was opened we wrote the year 1933, and the people who were put in the camps then were Communists. Who cared about them? We knew it, it was printed in the newspapers.
    Who raised their voice, maybe the Confessing Church? We thought: Communists, those opponents of religion, those enemies of Christians – “should I be my brother’s keeper?”
    Then they got rid of the sick, the so-called incurables. – I remember a conversation I had with a person who claimed to be a Christian. He said: Perhaps it’s right, these incurably sick people just cost the state money, they are just a burden to themselves and to others. Isn’t it best for all concerned if they are taken out of the middle [of society]? — Only then did the church as such take note. Then we started talking, until our voices were again silenced in public. Can we say, we aren’t guilty/responsible? The persecution of the Jews, the way we treated the occupied countries, or the things in Greece, in Poland, in Czechoslovakia or in Holland, that were written in the newspapers
    I believe, we Confessing-Church-Christians have every reason to say: mea culpa, mea culpa! We can talk ourselves out of it with the excuse that it would have cost me my head if I had spoken out.
    –end–

    I believe that as a good dog I must speak out against the FISA Court, the spying on my computer and the idiocy of these schmucks in Washington
    DC. Or is it 1936 and am I at a Nuremberg Rally?

  15. First they came for Snowden, and he was not a journalist. So, as a journalist, I did not speak out. Then they came for Greenwald but he was not living in the United States and was sort of a journalist but for The Guardian not the New York Times or Fox News. I was not a Guardian so I did not speak out. Then they came for me. There were few voices to speak for me.

    When the Pentagon Papers cases came to fore we had at least three strong willed families who owned newspapers who spoke up for the people who had revealed the Vietnam crimes. The Graham family owned the Washington Post and the Sullivans owned the New York Times. Those people who owned those two newspapers stood up and spoke out. The world was better for it.

    Now the Grahams have sold out and we have Bezos at the Washington Post helm. Those of us on the horizon do not know if he is sailing with the wind or heading upwind. We cannot rely on the likes of Fox News and its crafty corporate owners.

    The people sitting on the FISA Court and those who put them there should be sitting in the Dock at Nuremberg in a war crimes trial in 2014.

  16. It’s a great start but a similar watchdog needs to reside in the Judicial Branch – the Executive Branch watchdog is only a temporary fix, since this branch of government violates the U.S. Constitution the most – it’s the fox guarding the henhouse.

    Imagine the prevous administration back in power, they would disband it or make it a hollow shell. Needs to be in the Judicial Branch, a co-equal branch of government entitled to know all of the secrets.

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