How Obama Unilaterally Chilled Surveillance An executive order that encourages a risk-averse approach to intelligence.By David R. Shedd
http://www.wsj.com/articles/how-obama-unilaterally-chilled-surveillance-1448833262
Nothing reflects these self-imposed restrictions better than Presidential Policy Directive 28. President Obama signed PPD-28 nearly two years ago in a knee-jerk reaction to the release of classified intelligence information by former National Security Agency contractor Edward Snowden and the data-collection methods revealed by the theft.
Among its many flaws, PPD-28 requires that, when collecting intelligence on foreign threats, U.S. operatives “must take into account (that) all persons should be treated with dignity and respect, regardless of their nationality or wherever they may reside and that all persons have legitimate privacy interests.” This feel-good provision puts a serious crimp in foreign signals-intelligence collection.
The ambiguous language also naïvely extends to non-Americans unnecessary and undefined “privacy” rights. In what way does this make the U.S. safer?
Moreover, PPD-28 imposes on the intelligence community layer upon layer of process-reporting requirements that slow information collection to the point of outright discouraging it. In addition to reports to the president evaluating safeguards on foreigners’ personal information, Section 5 of the directive requires separate reporting actions by the Director of National Intelligence, the Privacy and Liberties Oversight Board and the president’s own Intelligence Advisory Board.
The restrictions of PPD-28 contradict the direction provided to the intelligence community by every president since Ronald Reagan took office. In Executive Order 12333, Reagan ordered that “all means, consistent with applicable Federal law and (this Executive) order, and with full consideration of the rights of United States persons, shall be used to obtain reliable intelligence information to protect the United States and its interests.”
PPD-28 gives foreign targets of signals intelligence-gathering privacy and civil-liberties rights that largely mirror the constitutional rights of U.S. citizens. The directive makes the intelligence community essentially prove that its projected foreign-intelligence or counterintelligence collection activities will serve a national or departmental mission and no other purpose.
Does the administration really believe that foreign leaders threatening nuclear adventurism or terrorist groups that behead innocent civilians, try to blow up soccer stadiums, and attack a concert hall for the purpose of mass murder have any legitimate right to privacy?
This kind of language makes U.S. intelligence professionals forgo collection opportunities lest information be gathered that may fall outside the narrow bounds set by PPD-28. The collector will not risk his career to collect signals intelligence on the plans and intentions of some foreign nationals when the president or national-security cabinet members have not made clear that it is a worthy collection target in advance of the collection activity. In effect, American intelligence professionals are now operating with one hand tied behind their backs.
The lesson from the Snowden episode should be that the intelligence community must better protect what it collects, not that it must collect less. PPD-28 got that backward. The directive presumes that it is difficult to protect what is collected and therefore emphasizes the risk of collection over the inherent value of what is collected.
In a crisis-riddled world, the country can’t afford to have the White House micromanaging intelligence collection. Let U.S. intelligence professionals do their job under the traditional oversight provided by the executive, legislative and judicial branches of government. With PPD-28 in place, they can’t do that.
Mr. Shedd was deputy director of the Defense Intelligence Agency from September 2010 to August 2014 and acting director until January 2015. He is a visiting fellow in the Heritage Foundation’s Davis Institute for National Security and Foreign Policy.
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