Keep NSA in perspective
served as counsel in the Office of General Counsel at the National Security Agency (1984-1988) and is now in private practice in Philadelphia
Criticism of the National Security Agency has been growing as a result of disclosures by Edward Snowden, prompting even President Obama to weigh in recently.
Given the significance of U.S. foreign intelligence capabilities, it is essential that the NSA's role be viewed with a balanced perspective, lest an ill-considered rush to judgment deprive the country of a critical asset that is both extraordinarily effective and uniquely fragile.
The National Security Agency Act protects against the disclosure of "the organization or any function of the National Security Agency, or any information with respect to the activities thereof," and it is a federal crime to disclose, without authorization, classified information concerning the NSA's communications intelligence activities.
Considering these protections, it is difficult to understand the indignation that Snowden's illegal disclosures have generated in official circles. By law, the NSA regularly reports on its activities; indeed, each house of Congress has a special committee dedicated to intelligence oversight. Moreover, the NSA's function is signals intelligence collection, which means it responds to tasking by other U.S. government entities that produce "finished" intelligence products. Thus the very collection efforts being questioned likely originated in response to requests from other elements of the federal government - not the NSA.
Moreover, having worked at the NSA for several years, I can say with reasonable assurance that no outlet reporting on the agency's activities has the knowledge or insight sufficient to present an informed account of the collection programs. Similarly, no person at Snowden's level of participation would possess the knowledge needed to capably articulate how those activities fit into the overall foreign intelligence efforts at the NSA or comment on the vetting process used to assure the compliance of those efforts with legal requirements.
"Illegal" is the only accurate description of Snowden's conduct. Everyone who has worked for the NSA is aware of the statutory prohibition against disclosure of the agency's activities. And every current or former employee, including Snowden, has signed a lifetime nondisclosure agreement. There has been virtually no mention in the media of Snowden's utter disregard of this promise; instead, certain media outlets have endorsed the notion that Snowden should receive some form of clemency. This ill-advised suggestion is a slap in the face to every present or former NSA employee who takes his or her oath seriously.
All responsible government officials with detailed knowledge of the the NSA's operations have confirmed both the importance of its activities, including the bulk collection programs, and their compliance with current law. Even the president's recently announced reforms prudently propose to modify storage and access features associated with bulk data collection without significant change to the underlying collection. The modest expansion of the role of the Foreign Intelligence Surveillance Court advocated by the president represents no indictment of NSA activities, but only a reaffirmation of the court's role in protecting the privacy interests of U.S. citizens - a role that court has filled since passage of the initial version of Foreign Intelligence Surveillance Act in 1978.
Finally, in assuring allied leaders that their communications will be targeted only where there is "a compelling national security purpose," the president is essentially revising "tasking" standards and, as noted earlier, the NSA responds to tasking orders; it does not initiate them.
We live in a fragmented, asymmetric world where NSA's incomparable signals intelligence capabilities are singularly fruitful against those seeking to harm the United States and its people. We will all be less safe if those unequaled capabilities are myopically sacrificed by overreacting to the disclosures of a disgruntled expatriate.