- - Wednesday, November 12, 2014

ANALYSIS/OPINION:

Not long ago Director of National Intelligence Jim Clapper bared a bit of his soul before a friendly audience of intelligence professionals and contractors. Mr. Clapper said he was facing a demand for exquisite intelligence that he had to collect without risk, without embarrassment and without threat to anyone’s privacy or commercial bottom line.

He labeled it “Immaculate Collection.”

Mr. Clapper was careful not to criticize any specific policy or direction, but it was clear that he wanted to get on the record that American intelligence is working under some pretty unprecedented constraints. Some might even be tempted to say that we are already pulling our punches.

This began in early 2009 with the closure of the CIA detention and interrogation program. Clearly, there were a lot of factors involved in that decision, and the administration made clear that that did not mean that questioning of terrorists would end.



But as a practical matter, in the nearly seven years since that decision, the number of American-conducted interrogations of terrorists has dwindled to near zero. The administration says that is not policy. I won’t argue the point. It is, however, fact.

Following the revelations of Edward Snowden, including allegations that the US was listening to German Chancellor Angela Merkel’s cellphone, a senior U.S. official told reporters that the United States had “made a decision not to pursue surveillance on dozens of heads of government.”

Dozens. That’s at least 24 and probably more.

The president announced last January that, “If I want to know what [foreign leaders] think about an issue, I’ll pick up the phone and call them.”

Fine. Except what foreign leaders tell the president may not be exactly what they tell their foreign ministers or defense ministers or intelligence chiefs.

Even before that announcement, Reuters News Agency was reporting that the president had ordered an end to electronic surveillance of international organizations like the United Nations, the World Bank and the International Monetary Fund. Many have understandably applauded the move. After all, these institutions are not adversaries.

Whatever the truth of the reports, we need to be careful with that argument. It smacks of the Greenwald-Poitras-Snowden meme condemning alleged suspicionless surveillance. That attitude conflates law enforcement and intelligence.

Intelligence collection is not confined to the communications of adversaries or of the guilty. Rather, it’s about gaining information otherwise unavailable that would help keep Americans safe and free. There’s a difference.

Then in September there was a flood of stories that the CIA had “curbed spying against friendly governments in Western Europe.” This was in response to charges that the CIA had suborned an officer in Germany’s intelligence service.

I have no special knowledge about the truth of that allegation or the supposed American response, but the currency of the story is proof enough that most observers are prepared to believe that there is a high level of skittishness in American espionage at the moment.

Of course, Snowden’s big revelation was the National Security Agency’s 215 program, the NSA’s acquisition of American telephony metadata. Last January — after six months of defending the program as effective, lawful and appropriate — the president committed to modifying it by allowing American telecoms to retain the data, but requiring them to search it on behalf of NSA under court supervision.

That would require legislation, of course, and the issue is toxic enough on all sides that it is unlikely that the lame-duck session of Congress will handle it, and it’s not a certainty that a new Congress will successfully take it on either. That’s a big deal as the program will go over the cliff when the Patriot Act expires in June.

Finally, the intelligence community is working hard on the president’s commitment to extend to foreigners overseas U.S. personlike privacy protections on holding and using data collected on them. From all accounts, it is slow going. One observer only half-jokingly commented to me: “We don’t know what that even means.”

Little surprise there. The American intelligence community (and American law) heretofore have never embraced the concept of the Fourth Amendment as an international treaty.

And before we do, it might be wise to think about the long-term implications of such an approach. The president reflected current and historic reality when he said “the United States only uses signals intelligence for legitimate national security purposes and not for the purpose of indiscriminately reviewing the emails or phone calls of ordinary folks.”

Shouldn’t that operational reality be standard enough? What administrative burdens are we about to place on a system that is already stressed keeping up with the demands of a very turbulent world? And what unneeded caution will such a legal and policy regime impose on a bureaucracy that we cannot afford being risk adverse?

We’ve actually seen a version of this movie before, pre-9/11, when intelligence and law enforcement agencies played back from the “wall” that had been erected between them. As fateful as that was, it at least had the merit of being about American constitutional rights. This is not.

A final thought. As we go down this path, look around. Is anyone traveling with us? Is any other nation about to extend its domestic constitutional protections to foreigners when it comes to foreign intelligence collection? I didn’t think so.

Immaculate collection indeed.

Gen. Michael V. Hayden is a former director of the CIA and the National Security Agency. He can be reached at mhayden@washingtontimes.com.

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