President Barack Obama faces a full agenda on his return to work today. One of the top items: reforming the National Security Agency. While on vacation, he considered the recommendations of a task force he appointed to improve operations at the NSA. The president is soon expected to announce possible changes to controversial spying programs — some of which have been in place since 9/11. While many privacy advocates have praised the task force recommendations, some say they don’t go far enough. And others worry that tinkering too much with our nation’s surveillance programs could pave the way for another attack. Diane and her guests discuss a rethinking of national security.

Guests

  • Stewart Baker attorney at Steptoe and Johnson, former general counsel at National Security Agency and former assistant secretary of policy at Department of Homeland Security.
  • Richard Clarke former counterterrorism official, currently a consultant for ABC News, adjunct faculty member at Harvard's Kennedy School of Government, and author of "Against All Enemies" and "The Scorpion's Gate."
  • Marc Rotenberg executive director of the Electronic Privacy Information Center and teaches Information Privacy Law at Georgetown University Law Center.
  • Tom Gjelten national security correspondent, NPR, and author of "Bacardi and the Long Fight for Cuba: The Biography of a Cause."

Transcript

  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. President Obama is expected to announce major reforms to intelligence surveillance early this month. They'll be based on recommendations from a task force he appointed last summer to overhaul the National Security Agency. Joining me to talk about the president's options: Tom Gjelten of NPR, cyber expert and task force member Richard Clarke, Marc Rotenberg of the Electronic Privacy Information Center, and former NSA general counsel Stewart Baker.

  • 10:07:34

    MS. DIANE REHMI'm sure many of you will want to chime in. Give us a call at 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or send us a tweet. And welcome to all of you.

  • 10:07:55

    MR. TOM GJELTENGood morning, Diane.

  • 10:07:55

    MR. MARC ROTENBERGGood morning.

  • 10:07:55

    MR. STEWART BAKERGood morning.

  • 10:07:56

    MR. RICHARD CLARKEGood morning.

  • 10:07:56

    REHMGood to see you all. Richard Clarke, tell us about the report and what you consider being the most important aspects.

  • 10:08:07

    CLARKEDiane, the president asked us a really big series of questions. What intelligence do we need to collect? That's a big question in and of itself. How do you square that requirement for collecting intelligence with our traditional American values of privacy rights and civil liberties?

  • 10:08:26

    CLARKEAnd the overall conclusion we came to was that there was a much greater need for transparency, for outside supervision, supervision outside the intelligence agencies to rebuild public trust because we think that the revelations in the last six months have seriously eroded public trust not only in this country but in Europe and around the world. And so we have 46 recommendations, many of them technical. It's a very long report, 300 pages. The president has gone through it several times. He's got his cabinet going through it, and we expect him to make decisions this week or early next.

  • 10:09:08

    REHMTom Gjelten, what do you see as being most significant recommendations?

  • 10:09:16

    GJELTENI think probably the most significant recommendation is the one that the so-called metadata, telephone records, records of all the calls made in the United States, the duration of the calls, the numbers called, that that data should be stored elsewhere other than in the U.S. government. And I think this is certainly the recommendation that has gotten the most attention.

  • 10:09:39

    GJELTENIt's also the one that I would predict is probably going to produce the first sort of action or decision by the administration. There are a number of other recommendations that Richard Clarke can go into. There's some very interesting ones to me about how we prepare for cyber conflict going forward, and there's, of course, another interesting recommendation, potentially very important, about how the foreign intelligence surveillance court should operate.

  • 10:10:12

    GJELTENThis is a court that has to rule on the NSA's implementation of all these surveillance programs. There's a recommendation in the commission's report that the public have a advocate on that court. Right now, it functions much more like a grand jury, which is just the government and the judge, and there's no adversarial relationship in there. And Mr. Clarke's commissions suggests that the public be represented there by someone who could advocate for the interests of privacy and the public interest.

  • 10:10:47

    REHMTurning to you, Stewart Baker, what is the reaction of the NSA and the Obama administration generally speaking thus far?

  • 10:10:59

    BAKERI'd say there's three troubling aspects to the report: one, this effort to recast the metadata program in an unrealistic way, in my view. More troubling, actually, is the tinkering with the way foreign intelligence is going to be gathered and putting limitations on it. And then, finally, there are some organizational recommendations that I think are not particularly workable.

  • 10:11:26

    REHMWhen you say that you're concerned about some of these, what are you particularly concerned about?

  • 10:11:33

    BAKERI'm concerned that they will hobble out ability to gather intelligence for the future.

  • 10:11:38

    REHMMarc Rotenberg, do you think the recommendations go far enough?

  • 10:11:44

    ROTENBERGWell, we think it's a very good proposal, certainly a chance to change direction post-9/11 in the United States with respect to privacy and civil liberties. But on at least two key issues, we don't think they've gone far enough. I mean, first, the end of the bulk collection of the telephone records of Americans is a good proposal, and we support that. But that doesn't necessarily mean that the bulk collection should continue with telephone companies.

  • 10:12:10

    ROTENBERGAnd we see that as an open question. In other words, this is data that's being gathered on people just engaged in their routine private activities. And the case has not yet been made that that data should be kept by the telephone companies. The other key point, which the report doesn't address -- and, frankly, they weren't asked to address but we think is also very important -- concerns the business practices of the Internet firms that implicate the privacy interests of Internet users.

  • 10:12:40

    ROTENBERGSo you have a lot of companies collecting an enormous amount of personal data on Internet users. It is that data that then becomes the target of the collection practices of the intelligence agencies. So we think it's also important to consider those practices that impact privacy interests of Internet users.

  • 10:13:00

    REHMMarc Rotenberg of the Electronic Privacy Information Center. And coming back to you, Richard Clarke, you say the National Security Agency has stayed within the law but that there needs to be more transparency and independent review. How would the NSA go about providing that?

  • 10:13:35

    CLARKEWell, Diane, I think there's a debate about whether the NSA has stayed within the law. We concluded it did. But fundamentally this should not be a legal issue. This should be a policy issue. You know, how much risk do the American people want to take? How much do they want to safeguard their civil liberties and privacy rights? And then we can make the law adapt to what the right answer is.

  • 10:14:04

    CLARKEWhat we'd like to see is some of the compliance functions, some of the oversight function, the checks and balances that now go on within NSA, and they have a huge staff of people doing checks and balances, doing oversight. We'd like to see some of that function done by an independent agency outside of NSA, and we propose a new civil liberties board to do that. We also propose that, when you want to get the sort of metadata that's been discussed, the telephone records, that you should have to go to a court. You should have to go to a judge.

  • 10:14:41

    REHMBut, Tom, Richard Clarke talks about the legal versus the policy issues. How do you see it?

  • 10:14:51

    GJELTENYou know, I'm taking a step back, Diane. I thought there was one line in this report that really caught my attention, and that was that too often in times of crisis, we overreact. And I think, you know, that's -- 12 years have now passed since the 9/11 attacks. And now we have this report that really does, in a sense, take a step back and says -- and looks at all the ways that the government reacted to those attacks and the counterterrorism policies that were put in place and raises really tough questions that we have sort of been reluctant to deal with head on.

  • 10:15:29

    GJELTENAnd I think that's one of the reasons that this -- that's a way in which this commission really should be applauded because, as Dick Clarke says, these are really issues that have to be debated, and we really haven't had that much of a vigorous debate about all these counterterrorism policies in these 12 years since. And this is a moment -- what this report does is it really brings those issues out for public debate.

  • 10:15:54

    REHMStewart Baker.

  • 10:15:55

    BAKERYeah. I question whether we didn't have this debate. I think we did have the debate. There was a debate about the Patriot Act. There were debates about what we were going to do with TSA. We've had a lot of these debates. So I don't think we failed to have the debate, but I do agree with Dick that this is not a legal problem. This was not a violation of law, by and large.

  • 10:16:19

    BAKERThere are deep policy concerns raised by this. We've lost a lot of opportunity to sell products abroad as a result of this, and the solution should not be so much focused on changing the law as finding ways to make sure that our policymakers have a better shot at avoiding the kind of scandal that we've had up to now. So on that issue, I think there's a lot of agreement.

  • 10:16:46

    REHMAre you talking about the scandal regarding Edward Snowden?

  • 10:16:51

    BAKERYes. There's been -- the disclosures that he has made have cost both the intelligence community and American companies and American interests immeasurably, and we want to avoid that -- whatever we can do to avoid that, we should do.

  • 10:17:08

    REHMAre you saying that you feel that the report goes too far in terms of talking about transparency and openness as far as the NSA activities?

  • 10:17:23

    BAKERThere are some things, some aspects of transparency that, while I'm not enthusiastic about, I understand the importance of changing the policies in response to the challenge. But I do think that some of the legal changes that are proposed, particularly with the metadata program, with national security letters and the effort to put constraints on how we gather foreign intelligence, do go too far.

  • 10:17:51

    REHMTom Gjelten, how much has Edward Snowden precipitated this kind of review? How important has he been?

  • 10:18:02

    GJELTENOh, it's been absolutely essential. I mean, we just had two recent federal court cases about the NSA surveillance programs that would not have happened if it weren't for the Snowden disclosures because these programs were secret. And there was no way to know what was going on, and so now there is this debate and legal consideration of it.

  • 10:18:21

    REHMTom Gjelten, national security correspondent for NPR. Short break. We'll be right back.

  • 10:20:01

    REHMAnd welcome back. We're talking about a new report that was released earlier this month announcing major reforms to intelligence surveillance. One of the members of the task force, Richard Clarke, a cyber expert and former National Security official under Presidents Bill Clinton and George W. Bush, is here. Also Tom Gjelten of NPR, Marc Rotenberg of the Electronic Privacy Information Center, and Stewart Baker, former general counsel at the National Security Agency.

  • 10:20:53

    REHMHere is our first email going to -- directed to you, Richard Clarke, from Brian in Jackson, N.H. He says, "President Obama is in a difficult spot. We're all concerned about protecting privacy. He has the overriding responsibility 'to protect and defend us.' If he relaxes security measures and tragically we are attacked domestically again, he will be vilified by the right for being weak on terror. If he does not stop or limit surveillance measure, the very same right wing will attack him for invading our privacy."

  • 10:21:46

    CLARKEWell, that's the conundrum. But, you know Diane, what the review group told the president was that we think none of the recommendations we make in any way undermine American security. The struggle against al-Qaida and other terrorist groups is not over. It's far from over. We still face a very serious threat from terrorism. Al-Qaida is still strong, and other terrorist groups, they're still threatening a cyberwar.

  • 10:22:14

    CLARKEWe're not suggesting in any way unilateral disarmament. We're not suggesting anything that would reduce the president's ability to fight against these groups or to defend the United States. I spent 30 years working on counterterrorism. Mike Morrell, the former deputy director of CIA, spent 30 years working in intelligence and counterterrorism. Neither one of us would make any recommendations that we thought would risk the security of the United States.

  • 10:22:44

    REHMStewart Baker.

  • 10:22:45

    BAKERSo I understand his -- Dick's view on that, but I just think that that's wrong. There's a recommendation in here that says we will not target foreigners, not Americans, because of their political or religious views. So if somebody -- some imam someplace is saying your religion requires you to kill Americans and we wonder whether he actually is helping people kill Americans, we can't target him. That's crazy.

  • 10:23:11

    REHMBut isn't the provision to make sure to inform the foreign government that one is looking carefully at a foreign national?

  • 10:23:23

    BAKERWell, sometimes that's a good idea, and sometimes it's not. You cannot trust any foreign government to keep your secrets in the same way you would keep them. So it's a risk in any circumstance.

  • 10:23:35

    REHMWhat about that risk, Richard Clarke?

  • 10:23:38

    CLARKEIf an imam somewhere is telling people to kill Americans, then there's every reason you could target him for intelligence collection. What you cannot do under our recommendations is target him because he's a Muslim.

  • 10:23:51

    REHMI want to go back for a moment to the role of Edward Snowden here. Steven Bradbury, a former Justice Department legal counsel, said that there's a sense that this panel and other committees in Congress feel they have to suggest something to show they have a "value-added role." He wrote in a Washington Post op-ed piece that the panel produced a glib and unconvincing report, Tom Gjelten.

  • 10:24:33

    GJELTENYou know, we were talking during the break about how the report was well written. And I think sometimes when you write reports with a broad popular audience in mind, where you actually don't want to address just a, you know, inside-the-beltway group, that you can be accused of -- I mean, those of us who work in journalism hear this all the time. You know, glib is just sort of the flipside of writing for a popular audience. And I, for one who is somebody who has read a lot of these official reports, I appreciate a report that's written so that people can actually understand what they're saying.

  • 10:25:07

    REHMIs that what you were tasked with doing, Richard Clarke?

  • 10:25:12

    CLARKEOur audience was the president. And he's quite capable of reading technical documents and legal documents. He's a law professor. But we did realize that the document should also talk to the American people. And that's why we said to the president in our first meeting, we're not writing anything that's secret. Everything we write, everything we give to you will be unclassified and available to the American people. We thought that was very important.

  • 10:25:41

    REHMAnd, from your perspective, how much of this report was in reaction to Edward Snowden's release of classified information?

  • 10:25:53

    CLARKEI would say that we were not motivated to do something for the sake of doing something, that if we had found that everything was perfectly fine the way it was, we would've been able to say that. We didn't. We found that there are serious problems. And we think lots of things have to change. We've made 46 recommendations. I don't think -- if the listeners go online to the White House and get the report and read it, I don't think they'll find it glib at all.

  • 10:26:24

    REHMAnd what about your opinion on whether one director should lead the NSA and Cyber Command?

  • 10:26:33

    CLARKEWe recommended against that. Unfortunately, the president had already decided the other way. But our recommendation stands. We think that a military combatant commander should not be running an intelligence agency that has responsibility for domestic intelligence.

  • 10:26:53

    REHMTom, I gather some of the proposals in this report require congressional approval.

  • 10:27:03

    GJELTENI'm sure they -- yeah, I mean, you can't change the structure of NSA and Cyber Command sort of just by executive fiat, for example. And, you know, the Foreign Intelligence Surveillance Act sets out the arrangements for the operation of foreign intelligence surveillance court. So, sure, a lot of these things do require legislative action.

  • 10:27:27

    REHMAnd what's your reaction, Stewart Baker, to the idea that one person should lead the NSA and cybersecurity?

  • 10:27:38

    BAKERI think the president got that one right. Ninety-five percent of what you do in using cyberweapons is the same as what you would do if you were engaged in cyberespionage. You have to break into the system. You have to understand the system. And then you have to decide whether you're going to exploit it or whether you're going to break it. And that might be just a matter of hitting return. The idea that we have an entire military structure just devoted to hitting return does not make sense to me.

  • 10:28:08

    REHMSo where are you on this report generally? Do you feel it undermines NSA activity?

  • 10:28:19

    BAKERYes. I think about maybe a third of the recommendations are really bad ideas. The rest are tolerable.

  • 10:28:27

    REHMSuch as...

  • 10:28:28

    BAKERSuch as changing the 215 program, changing the national...

  • 10:28:31

    REHM215...

  • 10:28:32

    BAKERThat's the metadata program.

  • 10:28:33

    REHMRight.

  • 10:28:34

    BAKERPutting all of this in the hands of the phone companies, on that, I actually agree with Mr. Rotenberg. I don't think it really changes our privacy. And it will dramatically undercut our ability to do intelligence.

  • 10:28:48

    REHMOK.

  • 10:28:49

    BAKERThe national security letters, there's a proposal to make it much harder to get national security letters, harder than it would be to get ordinary criminal subpoenas.

  • 10:28:58

    REHMAnd that's going before the FISA court.

  • 10:29:00

    BAKERThat's -- yes. That would put those before the FISA court and require the FISA court essentially to approve them. And that's not true for criminal investigative subpoenas. Why we would treat investigations of terrorism as something harder to do than ordinary criminal investigations, I don't know. Many of the proposals that tinker with how we do foreign intelligence, I think, are very risky. We've talked already about the political correctness issue of whether you can treat Muslims different from Presbyterians in gathering foreign intelligence. I think you can.

  • 10:29:40

    BAKERAnd I think it's dangerous to start putting restrictions of that sort. I think there's probably some real complications in trying to give rights to foreigners with respect to the kind of information that is gathered. The notion that the Privacy Act ought to be applied to them, the notion that we ought to share information intelligence with the Germans, say, those are things that should be negotiated. But we shouldn't be unilaterally handing out concessions of that kind to our foreign partners.

  • 10:30:15

    REHMMarc Rotenberg.

  • 10:30:17

    ROTENBERGWell, I think, first of all, Diane, one of the key points for your listeners to keep in mind about this debate is central to the recommendations from Mr. Clarke's panel, and that is that there's not a tradeoff here between the amount of national security we get and the amount of privacy protection we get.

  • 10:30:35

    ROTENBERGMany of these proposals that aim toward greater transparency and greater accountability do so with the intent of insuring that the National Security Agency does what it's supposed to do and does so effectively because, for those of us who have been following the agency over the last -- you know, certainly the last several months in the various revelations, one of the striking conclusions is that many of these programs simply are not effective.

  • 10:30:59

    ROTENBERGAnd the risk that they create, for example, by using imperfect tools for security and encryption, which was an issue addressed in the report, actually creates vulnerabilities that place American Internet users at risk. So we see this as a way to continue to ensure the agency's able to fulfill its mission but to do so in a way that's more accountable, more responsible, ultimately more effective.

  • 10:31:25

    REHMTom.

  • 10:31:27

    GJELTENWell, Diane, here's an opportunity to put Dick Clarke on the spot. This report was a little bit vague on whether these surveillance operations are effective or not in preventing terrorist attacks. I think, if I get it correctly, Dick, I think it said that there's no evidence that they actually did prevent a terrorist attack. Nevertheless, I think that you do nod to the NSA in saying that they are useful tools.

  • 10:31:59

    GJELTENAnd I get the feeling, sort of reading this group, that maybe this is one point in which there wasn't 100 percent consensus among the commission members. And I think that it's still unclear what the sort of expert opinion is on whether these NSA surveillance operations are really effective as a counterterrorism tool. Marc Rotenberg questions that. There are a lot of other people that question that. I certainly know there are people within the National Security community that think they're essential.

  • 10:32:28

    REHMRichard Clarke.

  • 10:32:30

    CLARKEWell, I'll answer that, Tom. But, before I do, I want to say that whether or not we should change the nature of the program in our view does not depend upon whether it was effective or not. We just don't think that the government should have a record in a government computer of every phone call ever made in the United States. We don't think that's necessary. We don't think that's good policy.

  • 10:32:50

    CLARKENor do we think that NSA should have the right to go into those records on its own decision making. We think they should go to a court. That's the policy issue. That's a separate issue as to whether or not the use of this stuff has been effective in the past. What NSA and other intelligence agencies told us was there were, let's say, six dozen cases or so where these records were accessed. We looked at those cases, and we looked at them with NSA and others.

  • 10:33:25

    CLARKEThere was no case where the information gleaned from this so-called 215 program was essential. And in every case, they could've gone to a court. They had enough time. You can get a court decision -- and I've done this when I was in government. You can get a court decision to give you a FISA order in a matter of hours. And in an emergency, under the law, you can do it without a court order and then go to the court after the fact. So we saw not one single case where the need to do it without a court was present.

  • 10:33:59

    REHMRichard Clarke, he's a cyber expert, former National Security official under Presidents Bill Clinton and George W. Bush and a member of the task force making recommendations to President Obama. And you are listening to "The Diane Rehm Show." We're going to open the phones now, 800-433-8850, first to Randy in Elkhart, Ind. You're on the air.

  • 10:34:37

    RANDYHi. You first need to protect the whistleblowers. Whoever in chain of command allowed Bradley Manning to be locked in a cell naked has lost control of his troops and should be court marshaled. Edward Snowden, looking at that, how can you possibly think that he would do anything that -- everything he could to make himself safe?

  • 10:35:04

    REHMAll right. And we are told, Tom Gjelten, are we not, that Edward Snowden attempted to go to his superiors with information?

  • 10:35:20

    GJELTENHe said that in an interview with The Washington Post that he had attempted to go to his superiors at the NSA with this information. The NSA leadership insisted it has no record of those attempts.

  • 10:35:35

    REHMPeriod.

  • 10:35:35

    GJELTENSo we don't know the answer to that.

  • 10:35:37

    REHMWhat do you think -- there are those people who are saying that Edward Snowden, at this point, should be granted some kind of immunity, brought back into this country. What do you think, Marc Rotenberg?

  • 10:35:59

    ROTENBERGI think it's a difficult question. Our own organization is divided on this one. There's no question, of course, that we appreciate the significance of the revelations about the NSA's conduct. In fact, the initial revelation, which was this extraordinary court order for the telephone record collection program of all Americans, provided the basis for our petition to the Supreme Court. And then the classic description of whistleblowing, I mean, I think that kind of disclosure is very, very significant.

  • 10:36:32

    ROTENBERGBut there are other aspects of the story which are troubling, I think. And my view is, as to the public policy issue here, it may be best for us to put aside Mr. Snowden for the moment and focus on the recommendations that Mr. Clarke's panel has put forward and try to understand what changes we need to make and then come back and try to answer the question: What is the best court of action for Mr. Snowden?

  • 10:36:58

    REHMIs that how you see it, Stewart Baker?

  • 10:37:00

    BAKERNo. I do agree that his best case would have been if he had disclosed the metadata program and left it at that. But the recent disclosures have been two foreign newspapers designed to hobble and expose American intelligence gathering. They recently released an entire catalog of intelligence capabilities that we have, which doesn't contribute to the debate at all.

  • 10:37:26

    REHMStewart Baker, former general counsel at the National Security Agency. Short break, more of your calls, your comments when we come back.

  • 10:40:01

    REHMAnd welcome back. Tom Gjelten, during the break, you and Richard Clarke were talking about Mike Morell's column, which seemed to indicate that perhaps some members of the panel making the recommendations were backing away to a certain extent. Explain.

  • 10:40:26

    GJELTENI asked Clarke that question during the break because Michael Morell, a former deputy director of the CIA and a member of the same group that Clarke was on, had a column in The Washington Post in which he tried to clarify exactly what he felt was the key issue as far as the effectiveness of this program.

  • 10:40:46

    GJELTENAnd while he did say that there was no evidence that these programs actually prevented any terrorist attacks, he did emphasize, in my opinion, to a greater degree than the report -- the group as a whole did -- that these programs were effective. But Dick Clarke can answer for the group as to whether I was misinterpreting or sort of overanalyzing Mike Morell's column.

  • 10:41:12

    CLARKEI think maybe overanalyzing, Tom. I mean, I talked to Mike after I read that, and he completely is behind our recommendations the way they stand. Look, there are some programs that are very effective. This is a little technical, but there's another program that doesn't get as much attention called the Section 702 Program, which collects information off of emails that transit the United States. And that has stopped terrorist attacks not only in the United States but around the world. And that program is extremely effective.

  • 10:41:44

    REHMHere's an email from Pat in Winston-Salem: "What opportunities would NSA data collection offer to a president or FBI director who wanted to interfere with someone the way Martin Luther King was targeted? Can we do things structurally to prevent this misuse?" Richard Clarke.

  • 10:42:10

    CLARKEPat's exactly hitting the nail on the head. Our concern -- and we say this a couple of times in the report -- is that, right now, the rules are in place that prevent abuse. There's a lot of oversight. But after some political sea change in this country -- let's say, god forbid, we have another 9/11 -- the technology is there so that we could have a police-surveillance state.

  • 10:42:35

    CLARKEAnd therefore we think we need to put roadblocks in the road now -- before that kind of thing happens, and we get emotional again -- put roadblocks in the road now to make it much harder for a future American Congress or American president to create a police-surveillance state.

  • 10:42:53

    REHMSteward Baker.

  • 10:42:55

    BAKERSo I think the problem with that approach is, first, it doesn't take account of the fact that we've already gone through a very substantial legal change in how we do intelligence gathering. Now, if you were going to misuse this data, both Houses of Congress and the leadership off both sides of the aisle would have to be briefed. There's inspector generals, there's general counsels of this -- the Justice Department would all have to agree that it was an appropriate thing to do.

  • 10:43:29

    BAKERAdding a few additional bureaucrats, a public advocate who's going to end up being paid by the U.S. government as well and bred into programs by the U.S. government to -- or some occasional transparency reports that are necessarily going to be restricted by classified information, doesn't create a real guarantee against misuse of this data. What creates the guarantee is what has prevented us from falling into totalitarianism up to now. It's the values of the United States and the people who work for the United States government.

  • 10:44:05

    REHMMarc Rotenberg.

  • 10:44:07

    ROTENBERGI disagree with Stewart on this point. And I think he's obscuring what is really the key issue in the debate. And that is the bulk collection -- the routine collection of the telephone records of all Americans, without any indication of suspicion, without any showing to a court that the collection meets any type of Fourth Amendment standard.

  • 10:44:27

    ROTENBERGAnd it's critical to keep in mind that, as long as the NSA is able to continue to engage in that activity, then that type of future that Richard Clarke and others in your callers are concerned about is very real. It means that the government is sitting right now on a very extensive profile of all of our private lives. And we can look at the current system of oversight and say, well, it sort of seems to be working. But when it's pushed, if that system collapses, we will be in a different world.

  • 10:44:58

    REHMBut many people want to know why the current system of security did not stop the Boston bombing. How would you answer that, Tom?

  • 10:45:13

    GJELTENWell, I don't think that any security system can be foolproof. You know, what you hear from National Security professionals all the time is that they, you know, you have to -- in order to stop every terrorist attack, you have to be -- you have to have 100 percent security -- 99.9 percent security is not good enough because the terrorists only need one opportunity to get through.

  • 10:45:35

    REHMSo is backing away, as the task force is recommending, is that going to make us less secure?

  • 10:45:45

    CLARKEWell, we're not recommending backing away. Quite the contrary, in fact, we actually have a proposal in there to strengthen collection, which hasn't gotten a lot of attention. But I think Tom's right. The Boston bombing is the kind of incident where you have one or two people making a decision, not an organization, not a lot of telephone records or Internet records that would indicate what they were about to do.

  • 10:46:11

    CLARKEThis threat of the lone wolf is very real, and that's probably the highest threat that we face from terrorism in the United States. But nothing in our report should be seen as backing away from doing what is necessary to stop terrorism.

  • 10:46:26

    BAKERWe need to do what we can to stop lone wolves, but most of the security measures that we've put in place are designed to make sure that large, spectacular, mass attacks can't be organized, planned, and trained for outside the United States and then brought here. It's the cross-border nature of the attacks that makes them particularly dangerous. And most of these programs are aimed at stopping those kinds of attacks, not, you know, a couple of disaffected wrestlers.

  • 10:46:58

    REHMHere's an email from Michael, who says, "Am I correct in saying the government's task is to reestablish citizen trust in government, rather than address an overly invasive government?" Richard Clarke.

  • 10:47:21

    CLARKEWell, I think the task is exactly as Michael said. Reestablish trust, but do so in a way that doesn't undermine our capability to defend the United States.

  • 10:47:29

    REHMAnd you are concerned, Stewart Baker, that in fact the report does undermine our ability.

  • 10:47:38

    BAKERA lot of these changes are going to create not absolute barriers but speed bumps and delays in carrying out intelligence. And sometimes those delays and speed bumps can be fatal.

  • 10:47:54

    REHMTom Gjelten.

  • 10:47:55

    GJELTENYou know, there's a question that I have here, which is -- I mean, Dick said at the beginning of the program that the mission here was to restore trust in the U.S. government's program. I don't understand why Americans should have more trust in the telephone companies than they do in the U.S. government. I mean, theoretically, in a democracy, governments are accountable.

  • 10:48:18

    GJELTENA private telephone company is not accountable. And this was actually an issue Marc Rotenberg raised. So, you know, if the issue is trust in government, I mean, that's a serious issue. But, you know, is it solved by putting your trust instead in the telephone companies?

  • 10:48:33

    CLARKENo. We're not asking anybody to trust the phone companies. The phone companies have to bill you, and therefore they have records. We're not asking them to do anything that they don't already do. They already maintain these records. They maintain them sometimes for a year and a half or two years. That's their normal business practice. We're not suggesting they do anything additional. And, if anyone has worked with the phone companies, I wouldn't ask them to have trust in the phone companies. I can't even get a phone installed in my house.

  • 10:49:02

    REHMAll right. To Gaye in Cadiz, Ky. You're on the air.

  • 10:49:08

    GAYEGood morning. Your voice is in fine condition today.

  • 10:49:13

    REHMThank you.

  • 10:49:14

    GAYEMm hmm. I support the NSA. It is like the Interpol. It gathers information and passes it along to legal authorities. This NSA being attacked by the eight CEOs and the box media is ridiculous. They've made a -- it's a manmade crisis that doesn't need to be. When I go to the library to use a computer, I can't get past screen freezes, slowdowns. These executives, they should clean up their own act because they have malware, spyware, worms, viruses -- I've lost track -- keylogging. I've lost track of all the different problems there is on the Internet. And they don't stop it. They let it go.

  • 10:50:02

    REHMAll right.

  • 10:50:03

    GAYEAnd the NSA is not out there selling your -- they're collecting information, but they're not selling it to marketers and making profits off of it.

  • 10:50:11

    REHMAll right. Thanks for your call. Marc Rotenberg.

  • 10:50:14

    ROTENBERGWell, we agree with the caller that there are a lot of privacy issues related to the activities of Internet companies. And we do think more focus needs to be directed there. However, that doesn't let the NSA off the hook.

  • 10:50:27

    ROTENBERGAnd I think the particular issue that people need to understand is that, when the NSA was established, and then later the Foreign Intelligence Surveillance Act was passed in the 1970s following the revelations of abuses by the intelligence community, there was a very strong belief that the NSA's enormous technological abilities should be used toward the collection of foreign intelligence against foreign adversaries.

  • 10:50:54

    ROTENBERGAnd in the words of Sen. Church, who said that if those technologies were ever directed toward the United States, there would be no privacy, no place left to hide, well, I think what we've learned this summer is that the NSA has really kind of left the rails to the extent that it is now routinely collecting information on Americans.

  • 10:51:13

    ROTENBERGThis is almost certainly what the framers of the Foreign Intelligence Surveillance Act were trying to prevent. So, as I said, I agree with your caller. We need to look at the Internet companies and how their practices impact privacy. But I think the issues with the NSA today are very real.

  • 10:51:31

    REHMRichard Clarke.

  • 10:51:32

    CLARKEOh, I agree. I think Sen. Church was ahead of his time when he said, if the technologies of the government are ever turned on the American people, there will be no place to hide. We have those technologies today. We didn't when Sen. Church said that. He was looking forward to the future. So the question is, can we live with those technologies being in the hands of the government? Our answer is, yes. We think we can, but only with adequate safeguards and transparency.

  • 10:52:01

    BAKERI'm puzzled, though, why we think that putting the -- leaving the data with the phone companies is going to make a difference. If the dark knight of fascism descends on the United States, as we keep talking about, it will take the evil government we're imagining about 30 seconds to go to the phone companies and collect all this data and use it in the way that everyone claims to be afraid of. I don't think we've solved the problem by moving the data from the NSA where it's carefully protected to the phone companies where any divorce lawyer's going to be able to get it.

  • 10:52:35

    CLARKEOh, no, no, no.

  • 10:52:36

    ROTENBERGBut, just to be clear, I said at the outset that we didn't favor the record retention by the telephone companies. I mean, to the extent that they need information on their customers to provide a service, yes, everybody understands that. But, if they're being told by the government, we want you to keep the data for six months, a year or two years, that's a whole different policy discussion.

  • 10:52:54

    REHMAnd you're listening to "The Diane Rehm Show." Dick Clarke.

  • 10:52:59

    CLARKEWell, there's this red herring that I keep hearing -- and Stewart just put it out there again -- that if the phone companies are required to keep the records, then divorce lawyers will -- it's a very easy legal fix, Diane, for the Congress to create a safe harbor so that the only people who could access these records would be the government and intelligence agencies through a FISA court action and very easy to stop divorce lawyers from getting a hold of it.

  • 10:53:26

    GJELTENYou know, Diane, your last caller actually raised another issue, which I think is really important. And that is about the relationship between the big tech companies and the government because we don't know yet -- but I get the feeling that there actually was a lot of collaboration between the NSA and the big tech companies, but we didn't know about it. And once Edward Snowden made his disclosure and it became clear that there had been collaboration between the big tech companies and the NSA, then we saw this split.

  • 10:53:55

    GJELTENAnd, as the caller said, we had eight tech CEOs write an open letter criticizing the U.S. government. So now, going forward, we have an adversarial relationship between the NSA and the big tech companies that did not exist before. And I think that that adversarial -- that conflict between the tech companies and the NSA is something that's going to have a lot of ramifications down the road.

  • 10:54:20

    REHMAs you've all said, Edward Snowden did not exactly cause this task force to go about its work. But, certainly, he's still involved in this issue of privacy and who gets to release what information. Richard Clarke, I'd be interested in your thoughts as to clemency for Edward Snowden.

  • 10:54:52

    CLARKEDiane, if all he had ever done was to reveal this phone metadata program and he'd stayed in the United States and was willing to do it as an act of civil disobedience and be arrested and have the argument out in court, then I think we could consider that -- at least I could consider that. I can only speak for myself. But he's done so much damage.

  • 10:55:13

    CLARKEThe public attention has only been on his revelations of things like the phone metadata program. But the documents he has revealed around the world have done much more damage than most of us are aware. Some of the damage is still secret and classified. But I can tell you he has hurt our ability to defend the United States.

  • 10:55:33

    REHMWhat would the recommendations of the task force be regarding tapping the phones of foreign leaders?

  • 10:55:46

    CLARKEWell, we make a recommendation of -- there are five criteria in the report that we suggest. We suggested the decision to do it, to tap a foreign leader, has to be evaluated by an extremely high level, the cabinet level or the president himself, against those five criteria. But, Diane -- I hate to say it -- foreign leaders, including friends of the United States and allies of the United States, sometimes they don't tell us the truth.

  • 10:56:14

    REHMSo you're saying, if they're not telling us the truth, we have not only the right but the obligation, if this panel, this cabinet, the president, decide that that phone needs to be tapped.

  • 10:56:34

    CLARKEIf the leader of an allied country was secretly negotiating with Iran to avoid sanctions and to help their nuclear program and if the only way we could find that out would be to tap the phone of that foreign leader, then I would do that.

  • 10:56:51

    REHMRichard Clarke, cyber expert, member of the task force looking into NSA reforms, Tom Gjelten, national security correspondent for NPR, Marc Rotenberg of the Electronic Privacy Information Center, Stewart Baker, former general counsel at the NSA, thank you all.

  • 10:57:19

    BAKERThank you.

  • 10:57:20

    GJELTENThank you, Diane.

  • 10:57:21

    ROTENBERGThank you.

  • 10:57:21

    CLARKEThank you.

  • 10:57:21

    REHMAnd thanks for listening. I'm Diane Rehm.

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