A White House advisory panel suggests 46 ways to rein in the NSA

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This story is based on a radio interview. Listen to the full interview.

Audio Transcript:

Marco Werman: I’m Marco Werman. This is The World. It’s been a long December for the National Security Agency, and the month ain't over yet. First the heads of Google and Facebook and other technology giants came out to publicly urge President Obama to reform the NSA. Then a federal judge ruled that that the NSA’s call records program likely violates the Constitution. And now, a panel of advisors is urging President Obama to curb the agency’s data mining. David Sanger has been following these developments as National Security Correspondent for the New York Times. I asked him exactly what the panel is recommending.

David Sanger: Well, there are a lot of recommendations. There are 46 contained in a 300 page report. But the most critical ones all would require the NSA to get either outside approval or outside oversight for many of their most critical operations.

Werman: So the NSA would really have to have the goods on a subject before digging in further, invading their privacy.

Sanger: Well, you’d at least need to have a really good reason to present to a judge, and you’d have to overcome the objections of what would basically be a public defender for privacy.

Werman: How does this plan change the way the NSA monitors foreign leaders? Are they going to take any comfort from these recommendations, like Angela Merkel of Germany?

Sanger: For the first time, the Intelligence community would not only have to answer five questions about why they would want to go search for the data, but they would also have to go out and consider the diplomatic and economic disadvantages, should the program become known. The fall-out of this disclosure about Angela Merkel’s phone in Germany has really been more economic than diplomatic. The two countries have been trying to patch up their differences, but one of the big concerns that American companies have is that American cloud services and American equipment would be significantly disadvantaged on the global market if people believed that the NSA was building back doors into that equipment or into that software. And one of the recommendations of the advisory group was build no back-doors.

Werman: Of the key recommendations that you've been talking about, is President Obama likely to follow them?

Sanger: Well there’s one recommendation that the President has already rejected, and that was not to have one single military commander overseeing both the National Security Agency and US Cyber Command. But other recommendations, he’s already begun implementing even before the report came out. You may recall that President Obama told Chancellor Merkel that her phone was not now and would not in the future be monitored. He didn't talk about the past. But when there were similar revelations about the leaders of Mexico and Brazil, he made no guarantees.

Werman: And why do you think those guarantees were not made for Mexico and Brazil?

Sanger: Inside the White House, there was concern that perhaps the intelligence that they would get from monitoring the leadership might be more valuable than the damage of revelations. Now you just saw yesterday, Brazil announced that Boeing had been passed over for a major contract. They may be expressing their own displeasure.

Werman: If we go back to the days following 9/11, and the White House’s statement that they were going to pursue, very aggressively, terror suspects, walk us back there before 9/11. I mean, if these recommendations are followed, where would that leave us compared to before 9/11?

Sanger: You know, I think if the recommendations were all followed, it would probably take you back to a period of time around 2005 and 2006… After the 9/11 attacks, but before the NSA got the kind of blanket authorities from the FISA court.

Werman: Are these recommendations sort of vindication for Edward Snowden?

Sanger: You know, that’s a really interesting question. I think it is certain fair to say that no matter what you think of Snowden, whether you think he was a whistle-blower or a traitor, whether you think he violated his oaths, which he clearly did and has admitted that too, that it’s hard to imagine that this committee would have been out there to make the recommendations that they did in the absence of the Snowden revelations. And that’s just a fact.

Werman: I've got to say one line, and you quoted it in your Times article today, that, quote, “Free nations must protect themselves, and nations that protect themselves must remain free.” I mean, that seems to leave the door pretty wide open for extraordinary conditions if they pop up.

Sanger: It certainly does. And certainly at moments of extraordinary threat, you've seen the government take action, some of which were later judged to be legal, and some of which were later judged not to be legal. There is an ebb and flow to these, and I think that what the committee was making clear was that there are two definitions of security, and they have a common root, but one of them is to be safe from outside attack, and the other is the 4th Amendment concept of being safe in your home, your persons, your place from government interference.

Werman: David Sanger, National Security Correspondent with the New York Times. Thank you.

Sanger: Thank you.