Government Officials: Finding the Proper Balance
Or, perhaps, our democracy works precisely because of the government’s efforts to create a balance between national security and individual privacy.
So says Alexander W. Joel, ’87, chief of the Office of Civil Liberties, Privacy, and Transparency in the Office of the Director of National Intelligence. That lengthy job title means that it is Joel’s job to help ensure that an appropriate middle ground is achieved between the two priorities.
“It’s fair to say that the intelligence community that I have grown to know over my years doing this job is very much committed to doing the right thing,” says Joel, who has been in his current job for 11 years and previously worked in the general counsel’s office in the CIA. “By that we mean both the national security mission that is expected of us, as well as protecting people’s individual liberties and operating in a way that would make Americans proud.”
Joel uses the metaphor of a scale to explain what he and others who work in civil-liberties positions in intelligence agencies aim to achieve. “We’re trying to give equal weight to both sides of the scale,” Joel says. They ask what is the intended result of a particular intelligence measure, as well as what impacts it may have and what needs to happen to restrain the activity to make sure individual privacy remains intact. “The answer is, let’s not choose one—national security or privacy,” Joel says. While there “are obviously tensions” between the two priorities, he says, they can and do coexist.
Joel is just one of the Michigan Law alumni working in the upper ranks of the federal government on issues that involve gathering data and other information as a means of protecting U.S. citizens. Chief among those is Benjamin C. Mizer, ’02, the principal deputy assistant attorney general for the Civil Division of the Department of Justice. While he cannot speak publicly about these issues because of ongoing litigation, by the nature of his job he has become one of the leading defenders of the government’s point of view.
Someone who can more openly address the government’s perspective is Mizer and Joel’s boss, President Obama. He has made impassioned remarks about why U.S. intelligence officials must have access to some telephone and computer data as a way of keeping citizens safe. For instance, after 14 people were killed in San Bernardino, California, in December 2015, the FBI tried to compel Apple to create new software that would enable the FBI to unlock the iPhone of one of the shooters. If phones and other devices are made to be impenetrable, he said, “how do we apprehend the child pornographer? How do we solve or disrupt a terrorist plot?”
He also has spoken more broadly about national security issues. “All of us value our privacy, and this is a society that is built on a Constitution and a Bill of Rights and a healthy skepticism about overreaching government power,” President Obama said during a conversation at the South By Southwest Interactive Festival in March 2016. “The Snowden issue vastly overstated” the risks to U.S. citizens when it comes to surveillance, Obama said, but he added that they did reveal “excesses” in surveillance overseas, many of which have been curtailed in the years since.
“We’re going to have to make some decisions about how we balance these respective risks,” President Obama said. “I anguish a lot over the decisions we make in terms of how we keep this country safe. … [But] this notion that somehow our data is different and can be walled off from those other trade-offs we make, I believe is incorrect.”
After the Snowden documents were released, many changes took place in the collection of data—either by the decision of the Obama administration, because of congressional action, or due to court rulings. In 2015, Congress passed the USA FREEDOM Act, which called for the government to end its bulk collection of phone records under Section 215 of the PATRIOT Act. It also increased the transparency of the Federal Intelligence Surveillance Court, or FISA Court, and established a panel of amicus curiae to present the court with legal arguments that advance the protection of individual privacy and civil liberties. Many people and organizations from within and outside the government are critical of the FREEDOM Act—mostly for not doing enough to protect individual privacy, though for some critics it doesn’t do enough to safeguard national security. But others believe it strikes the right balance and further advances a checks-and-balances process that means all branches of the government have some oversight.
“The court is working hard to get it right, the Congress is working hard to get it right, the administration is working hard to get it right,” says Jeffrey Smith, ’71, who heads Arnold & Porter LLP’s national security practice. He is a former general counsel of the CIA and currently serves on the Department of Defense Legal Policy Advisory Board. Smith also has worked in the Pentagon, the State Department, and the U.S. Senate, so his perspective is based on vast and diverse experience. “In terms of the big picture, the congressional oversight system works quite well. I’m very comfortable that we’re doing the right thing,” Smith says. “Electronic surveillance is probably the single most important source on what our adversaries are doing that could cause us great harm.”
He adds that the public may not understand the limited reach of the data-gathering conducted by the NSA and other agencies. “Edward Snowden said he was able to tap any phone in the country that he wanted to. That’s just not true. He said a lot of things that just aren’t true,” Smith says. “He also disclosed detailed information on U.S. collection of foreign government communications. I don’t know what the consequences are of his disclosure” in terms of losing sources and compromising U.S. citizens. “As we used to say at the CIA: ‘Never do anything that would give a KGB officer a medal,’” he says, referring to Snowden’s actions as “treacherous.”
Daniel Gallington, LLM ’73, was in the Pentagon on Sept. 11, 2001, when terrorists slammed a plane into the building, around the corner from his E Ring office. He stayed around the clock in the burning building for several days, working as the special assistant for policy to Secretary of Defense Donald Rumsfeld. That experience—along with decades in the intelligence sector—ensure that national security is often at the top of his mind.
“As the Pentagon was burning,” he says, “we were debating what was our authority to interrogate a person.”
Perhaps it is not surprising, then, that Gallington co-signed a letter to President Obama calling the release of documents by Edward Snowden an act that has done “grievous harm” to U.S. national security. The letter also said that Section 215 of the U.S. Code, which governs intelligence collection inside the United States, is indispensable in keeping Americans safe from terrorism. “The National Security Agency should continue to store the data, under existing tight controls and oversight,” the 2014 letter stated.
Gallington points out that the public-opinion pendulum swings toward national security during wars and after attacks such as Sept. 11. “Our nation and society abhor surveillance. But when we’re threatened or we’re at war, we don’t look the other way; we just swallow hard and say there are some things we’re going to have to do to keep us from being blown up,” says Gallington, who also served in a senior national security policy position in the Department of Justice and as bipartisan general counsel for the U.S. Senate Select Committee on Intelligence.
Still, Gallington emphasizes how important it is for civil-liberties organizations to be part of the conversation. “I used to call the ACLU as witnesses in the Senate, and I’ve worked with them for years,” he says. “They give articulation to the silence of the people who are represented here.”