The NSA and "Intelligence Legalism"
Interesting law journal paper: “Intelligence Legalism and the National Security Agency’s Civil Liberties Gap,” by Margo Schlanger:
Abstract: This paper examines the National Security Agency, its compliance with legal constraints and its respect for civil liberties. But even if perfect compliance could be achieved, it is too paltry a goal. A good oversight system needs its institutions not just to support and enforce compliance but also to design good rules. Yet as will become evident, the offices that make up the NSA’s compliance system are nearly entirely compliance offices, not policy offices; they work to improve compliance with existing rules, but not to consider the pros and cons of more individually-protective rules and try to increase privacy or civil liberties where the cost of doing so is acceptable. The NSA and the administration in which it sits have thought of civil liberties and privacy only in compliance terms. That is, they have asked only “Can we (legally) do X?” and not “Should we do X?” This preference for the can question over the should question is part and parcel, I argue, of a phenomenon I label “intelligence legalism,” whose three crucial and simultaneous features are imposition of substantive rules given the status of law rather than policy; some limited court enforcement of those rules; and empowerment of lawyers. Intelligence legalism has been a useful corrective to the lawlessness that characterized surveillance prior to intelligence reform, in the late 1970s. But I argue that it gives systematically insufficient weight to individual liberty, and that its relentless focus on rights, and compliance, and law has obscured the absence of what should be an additional focus on interests, or balancing, or policy. More is needed; additional attention should be directed both within the NSA and by its overseers to surveillance policy, weighing the security gains from surveillance against the privacy and civil liberties risks and costs. That attention will not be a panacea, but it can play a useful role in filling the civil liberties gap intelligence legalism creates.
This is similar to what I wrote in Data and Goliath:
There are two levels of oversight. The first is strategic: are the rules we’re imposing the correct ones? For example, the NSA can implement its own procedures to ensure that it’s following the rules, but it should not get to decide what rules it should follow….
The other kind of oversight is tactical: are the rules being followed? Mechanisms for this kind of oversight include procedures, audits, approvals, troubleshooting protocols, and so on. The NSA, for example, trains its analysts in the regulations governing their work, audits systems to ensure that those regulations are actually followed, and has instituted reporting and disciplinary procedures for occasions when they’re not.
It’s not enough that the NSA makes sure there is a plausible legal interpretation that authorizes what they do. We need to make sure that their understanding of the law is shared with the outside world, and that what they’re doing is a good idea.