Not Exactly an “Outside” Committee to Review NSA Surveillance Programs

According to ABC News, the panel of “outside experts” picked by the Obama Administration to review the NSA surveillance programs consists of the following:

Michael Morrell
Richard Clarke
Cass Sunstein
Peter Swire

Assuming that’s the whole group, it’s not exactly a list of “outside” experts. Morrell retired just two weeks ago from the CIA, where he was Deputy Director and Acting Director. Sunstein served in the Obama Administration as head of OIRA, leaving the Administration one year ago. Swire served as a Special Assistant to President Obama for the first two years of the first Obama Term. To be fair, Richard Clarke’s government experience predates the Obama Administration; he endorsed Obama for his excellent judgment on national security issues, but Clarke did not actually work for him. But in my experience working on some similar issues as he did in the government, Clarke had a reputation for seeing everything as an extraordinarily grave national security threat. I would think Clarke is likely to bring in a pro-government perspective on the issues here.

The group might be effective in the end, as they each bring a different skill set and perspective to the problem. I imagine that Swire will be the civil libertarian, Sunstein the pragmatist interested in the facts, and Clarke the government’s guy. (I don’t know anything about Morrell beyond his resume, so I wouldn’t want to speculate how he will fit in.) We’ll have to wait and see what they produce. But I was hoping to see a larger and more diverse group, and one with some technologists who would be able to really master the technical issues. This is a smaller and less diverse group, and one with stronger ties to the Obama Administration than is helpful. Perhaps that was necessary because everyone needed to have a security clearance, which presumably they all have or recently had. But it’s not as large or diverse a group as I would like to see.

Incidentally, one of the members of the group, Peter Swire, has written extensively on FISA. You might start with his article, The System of Foreign Intelligence Surveillance Law, which was published as part of a 2004 symposium at GW that I put together. You can read his criticisms of the early versions of Section 215 of the Patriot Act here. And you can read his regular online column for Privacy Perspectives here.