Controversial but legal

DW: If we look at the constitutional systems of the United States, who is in control of the intelligence agencies, especially of the National Security Agency?

Wells C. Bennett: Many different institutions play a role in supervising the NSA. In the case of surveillance, the agency must make an application to an independent judge, so the judiciary plays a role. The agency itself works under the direction of the president, but there also is close oversight by the congressional intelligence committees as well as other independent agencies.

Do you think this supervision is effective?

Yes. It is difficult, but it is effective. Of course, appraising its effectiveness is very difficult because oversight takes place in secret. So there is an element of blindness for those of us who are not on the other side of this security wall.

Could you describe those procedures?

The executive branch - to conduct surveillance under what's called the Foreign Intelligence Surveillance Act (FISA) - must go to a court within the Department of Justice. It is a secret court; its opinions are not made available to the public. (The executive branch) has to persuade the judge that it meets the requirements of the statute. It also has to persuade the judge that it will take certain steps to minimize the amount of information about US persons or incidentally collect information about things not related to the investigation. And if a judge disagrees, then it has to go through a kind of iterative process to make that work. Only after having done that can the government proceed.

So there is a pretty complicated process. But because it's complicated doesn't mean it's less than controversial. There is no defense lawyer arguing against the government in these proceedings. It's an ex parte procedure, and that's been the target of criticism. There have been proposals to make the surveillance court more adversarial and more transparent. But we're going to have to see whether those play out.

There has been criticism of the sheer volume of data collected from communication services. Do you think both Congress and the secret court approved this?

Some congresspeople have come forward and said: We had no idea about this sort of activity. We didn't know, for example, about the programmatic orders allowing for the mining of metadata. Or we didn't know that there was incidental or inadvertent collection of a US persons' end of a telephone call with a person abroad. I find a general claim of total ignorance to be a little less credible than a claim by certain congresspeople that, well, I was told about some activities, but I wasn't told about all of them. The suggestion has been that these orders have been issued for a long time - seven years. As far as the public reaction goes in America and abroad, the volume of data mining of surveillance may be surprising and controversial.

Is this a constitutional issue or a matter of practical policy?

I think there are two things that can come of this. One is a strong, vigorous debate, which I think we're having, about whether this activity is worthwhile and whether the cost in terms of civil liberties actually pays dividends in terms of our national security and the security of the world. (The other is) the level of law: The metadata program was governed by a part of FISA that prevented the government from getting relevant metadata. Apparently, for many years, the government has argued, and the judges and Congress have agreed, that a database of all metadata is relevant. I think that should be changed. It should be changed in that if Congress actually wants to have a relevant standard, where the information must be relevant to a particular thing, it should say so. Conversely, if the idea is that data mining on a broad scale is relevant or is necessary to conduct these kinds of activities, the rule should say that too.

Do Congress and the Executive Branch have the facilities to establish effective control?

Yes, although I would qualify that yes by noting the difficulty of the work. The intelligence bureaucracy in America is vast and occupies the work of thousands of people and billions of dollars. So when you put that into context, you're talking about congressional oversight by a relatively small group of people over a relatively broad swath of intelligence activities.

The director of National Security, James Clapper, clearly lied to Congress telling members of a committee earlier this year that the National Security Agency does not collect data on millions of Americans. Do you think the Executive Branch respects the rights, duties and competence of Congress?

As a general matter, I would say yes. But the history of these activities is rooted in executive overreach in the '70s when this apparatus arose. After some of the leaks came out, there was an intelligence briefing on Capitol Hill on a Friday. A lot of Senators didn't go because they wanted to go home. Can you really complain about not being briefed if you didn't even show up? I don't think you can.

Do you view the surveillance programs as constitutional?

I believe they are, in light of the past decisions by the Supreme Court about our Fourth Amendment (guards against unreasonable searches and seizures - the ed). Recently, the Supreme Court has suggested in related cases that large-scale surveillance activities can be questionable. One of (the judges) has wondered whether it is time to rethink... in light of technology and these surveillance activities. But the prevailing doctrine does not suggest an obvious constitutional problem. We're living in pretty interesting times. It's legally complicated to challenge these programs. There's an advocacy group in the US that has just asked the Supreme Court to review the activities of the NSA. The odds of that succeeding are very low for complicated technical reasons. But the debate (could maybe) change some justices' minds.

Wells C. Bennett is a fellow in the area of National Security Law at the Brookings Institution, a renowned thinktank in Washington D.C.