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ACLU Protest NSA in Washington ARCHIV Oktober 2013
Image: picture-alliance/AP Photo

Split over NSA reform

Antje Passenheim / bk
January 15, 2014

A US Senate intelligence review panel has found shortcomings in the NSA spy agency. The panel of experts has been cross-examined by a Senate committee, which made an effort to calm concerns about implementing reforms.


The National Security Agency (NSA) must be reformed: The review panel is unanimous on this point, even if Congress is not.

Senator Patrick Leahy, chairman of the judiciary committee that interviewed the intelligence experts, gave the hand-picked panel his backing. "I believe strongly that we must impose stronger limits on government surveillance powers," the Democrat said on Tuesday (14.01.2014) at the start of the hearing. But those called to testify before the committee apparently did not want to put it as starkly as that. The five authors of the 308-page report entitled, "Liberty and Security in a Changing World," were adamant about not jeopardizing the work of the NSA.

"Much of our focus has been on maintaining the ability of the intelligence-community to do what it needs to do," said one of the panel, law professor Cass Sunstein. "And we emphasize - if there is one thing to emphasize, it is this - that not one of the 46 recommendations of our report would in our view compromise or jeopardize this ability in any way."

Improve, not impair

The report, he added, was not meant to destroy the NSA - though it clearly does not come out of the assessment well - but to improve it, "by increasing safeguards against insider threats and by eliminatiing certain gaps in the law that make it hard to track people under circumstances in which we have reasons to believe they don't wish to do us well, " said Sunstein.

Sonia Sotomayor / Partik Leahy / US-Senat
Senator Leahy, who led the Senate hearing, supports limits on surveillanceImage: AP

The panel, consisting of two constitutional lawyers, a data protection expert, ex-CIA deputy director Michael Morell, and anti-terrorism expert Richard Clarke, presented their report to the White House in December. There was "a misperception on the part of the media and much of the American public that the review group had indeed recommended an end to the program and we did not do that," said Morell. "We recommended a change in approach."

That means change not only within the US - but abroad too. The panel's recommendations include a proposal that the NSA limit its foreign surveillance activities - and not only among world leaders. The experts said future NSA directors should be civilians and at least partly chosen by the Senate. On top of this, his areas of responsibility should be split between cyber security and the NSA's offensive capabilities.

Metadata program

But the most important and substantial reform, the panel suggested, was the metadata program. This program, which allows the NSA to randomly collect citizens' phone and internet data, was brought to light last June through the revelations of whistleblower Edward Snowden. Morell admitted that critics were right to say that this program had not prevented any terrorist attacks. " The program only has to be successful once to be invaluable," he added.

Brarack Obama Jahrespressekonferenz
President Obama is due to announce his reform plans shortlyImage: picture-alliance/dpa

Sunstein emphasized that the important thing was to manage various risks. "First and foremost the risk of national security, but including also the risk to public trust, the risk to privacy, risk to economic values and risk to democratic self-governance," he said. For these reasons, the panel recommended that the government pull out of the business of collecting information for its own sake. Instead, a third party, such as a telecommunications company, should store the data for a limited period and make it available to the government on request. This proposal has been dismissed as window dressing by digital rights activists, whereas others believe it goes too far.

House and American people divided

Regardless of what reforms Obama announces on Friday (17.01.2014), the president is limited when it comes to implementing the panel's proposals. On most points, he needs Congressional approval. But just like the US public itself, the House of Representatives and the Senate are divided on the reforms, says long-term CIA employee Fred Fleitz, a former member of the Congressional intelligence committee.

Bundeskanzlerin Merkel NSA Überwachung Obama
The NSA was caught spying on allies, causing a great deal of acrimonyImage: SAUL LOEB/AFP/Getty Images

"There is a great deal of acrimony within the US Congress on what to do," he said. "There is an odd alliance between the right and left of politicians who want to roll back the metadata program and put strict limits on certain NSA surveillance programs because they believe they infringe on the proxy rights of Americans."

Many would even block reforms, if they don't go far enough, while others are against them because they are worried about undermining US security standards. "However there is also a very strong bipartisan Senate intelligence committee bill which would improve the NSA program and address concerns about it without shutting it down," said Fleitz.

Fleitz, who works for the think tank Center for Security Policy, thinks any reform bill would have good chances of being approved, though it could take some time to pass through both houses of Congress and be implemented. Many analysts even doubt whether Obama will even be able to complete the job in his tenure.

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