A QUESTION ABOUT the potential of Donald Trump wielding power over the country’s eavesdropping capabilities evoked nervous laughter, and eventually a careful answer from the National Security Agency’s recently installed director of privacy and civil liberties.
Becky Richards, who was appointed to the newly created position in January 2014, insists the “checks and balances” on the intelligence community are strong — to protect employees so they can brainstorm new ideas without fear of reprisal, while also being properly monitored to prevent abuse.
At an event last week on Capitol Hill hosted by the Just Security law blog and NYU’s Brennan Center for Justice, a reporter for The Intercept asked Richards, “Would you trust someone — such as, let’s say, a Donald Trump — to oversee these sorts of powers?”
“I’m going to edit that question,” said Deborah Pearlstein, associate professor at the Cardozo School of Law and a moderator for the panel.
“No matter who becomes president of the United States, you would want these exact same constraints in place?” she asked.
After grimacing and laughing, Richard replied: “I mean, you certainly — you want to keep your intelligence community as un-politicized as possible.”
NSA has “checks and balances associated with how we do business,” Richards said. She listed multiple government partners responsible for keeping an eye on the NSA, including Congress, the independent Privacy and Civil Liberties Oversight Board, the Director of National Intelligence, and the Department of Justice.
“Each of those are different layers in sort of bringing a level of accountability to, and responsibility to, the intelligence community,” she said.
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She didn’t mention any worries she had about future presidents wielding those same powers — like Republican frontrunner Donald Trump.
The event was focused on the NSA’s little-known but powerful overseas spying programs — authorized by Executive Order 12333. President Ronald Reagan issued the order in 1981, though most of what the NSA does under its guidance is still secret.
Despite Richards’s assurances, privacy advocates have long doubted the effectiveness of existing oversight, and there’s room for a future president to expand the NSA’s authorities. For example, a new president could issue new executive orders or directives to guide federal agencies, as well as adjust internal policy.
Many criticized President Bush for his secretive use of executive branch authorities to increase surveillance on Americans following the 9/11 attacks.
After the New York Times revealed Bush authorized bulk wiretapping of Americans’ communications, security expert and cryptographer Bruce Schneier wrote: “If the president can ignore laws regulating surveillance and wiretapping, why is Congress bothering to debate reauthorizing certain provisions of the Patriot Act? Any debate over laws is predicated on the belief that the executive branch will follow the law.”
Nor has the system of check and balances necessarily assuaged privacy concerns. “Any trust that people have in the current system of checks and balances totally falls apart when you consider, down the road, we do not know who will be in office or how they will interpret their authority,” said Amie Stepanovich, U.S. policy director for the digital rights group Access Now. “ We don’t need trust, or a system of non-compulsory oversight. We need laws and regulations on the books.”
And it’s hard to tell how NSA is wielding its power to spy overseas under the current administration, argues Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program.
“I think the broader issue is that EO 12333 provides very broad authority to collect information abroad and there are few legal constraints,” she wrote in an email to The Intercept.
Nathan White, also at Access Now, didn’t give much credence to Richards’s response, calling it “government-ese.” “I think she MIGHT be trying to say that checks and balances could prevent any president from taking things too far. But it’s government speak so she can’t actually say anything directly,” he wrote in an email to The Intercept. “Under 12333, a president could loosen the rules for searching ‘incidentally’ collected information.”