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Civil libertarian: NSA is not the bad guy here!

Law professor Geoffrey Stone was perfectly prepared to believe the National Security Agency was the bad guy after former contractor Edward Snowden leaked details of classified surveillance programs.

But then he got a call from an ex-student, who just happened to have a job in the White House, with a request from a man Stone had once hired to work at the University of Chicago Law School, who just happened to have been elected president of the United States.

And the president had a request: Would Stone serve on a panel to examine the NSA program, and make recommendations on how it could be done better?

Stone said yes. And 4-1/2 months later, after long days spent in Washington, D.C. and Chicago, working inside Secure Comparmented Information Facilities (SCIFs), Stone and his fellow panelists had 40 unanimous recommendations and a newfound respect for organizations such as the National Security Agency.

“This was the most demanding experience of my life,” said Stone, who concluded that his initial view — that the NSA had run amok and was called to account by the revelations of Snowden — was the “completely wrong impression.”

“I think the NSA is not a culprit here,” he said. “They do what they’re told to do.”

Not only that, Stone said, but his review panel found no instances of intentional violations of law by the NSA, but some unintentional violations that were reported by the agency to the appropriate authorities.

Stone spoke about his experience at the William S. Boyd Law School at UNLV Monday afternoon, part of the Dean’s Speakers Series. His working group — formally called the The President’s Review Group on Intelligence and Communication Technologies — also included former counterterrorism czar Richard Clarke, former acting Director of Central Intelligence Mike Morell, legal scholar, author and former administrator of the Office of Information and Regulatory Affairs Cass Sunstein and Georgia Tech professor Peter Swire. The panel’s unclassified report is available online (it’s linked above and below). It’s also been published in book form by Princeton University Press.

Stone said the group’s most high-profile recommendation had to do with NSA collection of telephone metadata, which includes the telephone number called, the date and time of the call, the duration of the call and the location of the caller and the person he or she called.

That information is currently collected by the government, held in a database, and subject to searches when NSA analysts have a reasonable basis to believe a person is involved in terrorist planning. Queries to the database match suspect numbers with others suspected of terrorism, as well as people they call (what’s called a second “hop”).

Following a panel recommendation, Stone said the government will no longer collect or keep that data; phone companies will retain it and search their databases when the NSA asks, after a judge from the Foreign Intelligence Surveillance Court certifies there’s good cause to make the search.

In 2012, Stone said, the tactic was used 288 times, and produced 16 matches of suspected terrorists outside the United States contacting people inside the country who were independently suspected of terrorism. However, the tool has never been used to thwart a terrorist plot, he said.

Although the president seemed receptive to the suggestion when it was first presented to him, Stone said Obama seemed to waver later, when a trial balloon was floated suggesting the government would continue collecting the data (a huge server farm is under construction in Utah, ostensibly for that very purpose). But after panel members expressed their displeasure, Obama said the government would follow the panel’s suggestion.

Another recommendation: Have a privacy ombudsman with a “top secret” clearance assigned to argue against the government when it seeks warrants before the secret Foreign Intelligence Surveillance Act court. A compromise plan will provide for arguments in cases in which FISA judges believe they need to hear the other side of a case.

Two other issues weren’t included in recommendations, Stone said, but were resolved anyway. The first had to do with appointments to the FISA court, which are the purview of the chief justice of the Supreme Court. But unlike his predecessors, Chief Justice John Roberts had been appointing judges who were almost all appointed by Republican presidents. “I just find this unfathomable,” he said.

Once this was revealed, Roberts appointed two Democratically appointed judges the court. Stone said the publicity that confronted Roberts should serve as a deterrent to future chief justices doing the same thing.

The second issue: The relative inexperience and lack of knowledge on the part of members of the Senate and House Intelligence Committees. “I certainly came away with the sense that on the whole they don’t know what they’re doing,” Stone said. “They don’t understand it well enough.”

A possible solution: Staff the committee with ex-intelligence community officials who have real-life experience in gathering and evaluating intelligence. Stone said the panel’s work would have been impossible without Clarke, a former national security officials under Presidents Bill Clinton and George W. Bush, and Morell.

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