Photo: U.S. Army
The trickle of leaks about the extent of the NSA’s massive global surveillance programs turned into a deluge this week with a spate of new reports revealing that the agency has a secret backdoor into Google and Yahoo data centers, has been sweeping up intel on millions of Europeans’ telephone calls, and wiretapped the phones of 35 world leaders, including German Chancellor Angela Merkel and the Pope. After months of tepid calls for transparency, President Barack Obama and lawmakers now seem to have finally realized that something needs to be done to rein in the NSA’s apparently unchecked spying powers.
In a Congressional hearing this week, NSA chief Gen. Keith Alexander denied the most recent revelations, chalking the news up to “bad reporting.” Raising the spectre of 9/11, Alexander forcefully rejected calls to curb the NSA’s surveillance powers, saying that he would rather “take beatings” from the media and the public than “give up a program that would result in this nation being attacked.” It’s a familiar line of reasoning from Alexander, who defended the agency’s spying programs and compared mass data collection to “taking a bath” in a recent Defense Department video. For years, Alexander has spearheaded a Congressional outreach strategy that is designed to terrify lawmakers into giving the intelligence community carte blanche to collect troves of data, in the name of protecting the U.S. from future terrorist attacks. And, for the most part, it has worked.
But Alexander’s days at the NSA are numbered. The four-star general, who has lead the NSA and U.S. Cyber Command since 2005, is set to step down from both posts by next spring. His top deputy, Chris Inglis, is also set to retire by the end of 2014. The departures open up two spots at the top of the NSA, offering the White House and Congress a rare chance to make changes at the embattled spy agency. “There’s an opportunity to make change, and an opportunity to force a debate,” said Peter Singer, director of the Center for 21st Century Security and Intelligence at the Brookings Institution. "Within organizations, and bureaucratic politics, it's easier to make changes when there are new players.”
As the longest-running head of the NSA, Alexander has amassed a cyberwar empire, expanding its mission and scope beyond anything that his predecessors could have imagined. Under Alexander’s leadership, the NSA has pushed Congress to expand its legal authority to collect and store troves of electronic information about U.S. and foreign citizens, and implemented dragnet surveillance programs of phone records and Internet traffic. With the creation of U.S. Cyber Command in 2010, Alexander’s powers expanded to include offensive cyber capabilities, blurring the lines between digital military operations and intelligence gathering.
Given the depth and breadth of the NSA’s authority, analysts say that the upcoming turnover alone is unlikely to lead to any sweeping changes at the spy agency. But it does provide the Obama administration some room to curtail the vast power that the director of the agency now wields over both intelligence gathering and cyberwar strategy.
According to Singer, the most dramatic change that the Obama administration could force would be to disentangle the role of NSA director and head of U.S. Cyber Command. When the latter agency was formed, the two positions were combined because they both dealt with the cyber realm, a new and highly technical branch of modern warfare. Without a deep bench of military leaders capable of taking the helm of the country’s growing cyber fleet, Alexander was the most obvious choice to do both jobs.
But the conflation of digital surveillance and digital warfare has made a lot of people in the military and intelligence communities nervous, and there is a growing push to separate the agencies, particularly in light of Alexander’s muddled messaging over the Snowden leaks. "At the end of the day, they are different agencies and commands with very different goals, mentalities and responsibilities,” Singer said. “While there may be a need for sharing expertise, and while they may operate in the same domain, at the end of the day, one is a military command and one is a spy agency."
Beyond the obvious problems of combining surveillance with military action, Singer points out that the U.S. is in the formative stages of developing its cyber capabilities. Digital warfare is an increasingly essential component of the U.S. defense strategy, and many predict that it will one day make up its own branch of the military. It therefore makes sense to establish U.S. Cyber Command as a distinct entity, outside of the mammoth shadow of the NSA. "We would never talk about the head of the Marine Corps simultaneously be the head of the CIA, and yet we've allowed that to be our mindset with this," Singer said. "It's unnatural. So in my mind, it's a good thing to use this opportunity of a transition to break them apart to the more natural place that we want this to be in the future."
No decision has been made yet on who Obama will nominate to replace Alexander, although Vice Admiral Mike Rogers, the current commander of the U.S. Navy Cyber Command, has been named as a likely candidate. And it is unclear whether the White House will decide to split the roles of NSA chief and head of Cyber Command, or continue to combine the positions. One possibility, Singer said, is that Alexander’s successor will be tasked with figuring out how to untwine the two agencies.
Regardless of what the President decides, whoever is nominated to take over the NSA will face a firing squad in Congress. The confirmation hearings will open up the opportunity for lawmakers to publicly bombard the nominee with questions about the NSA’s dragnet surveillance programs, and demand information from the White House about the scope of its intelligence gathering. While the hearings themselves won’t force any changes at the NSA, they will almost certainly be used to draw attention to the agency’s sweeping data collection efforts and to push the Obama administration to make a shift in policy.
The obvious parallel here is Sen. Rand Paul’s filibuster to hold up John Brennan’s confirmation as CIA director over questions about the Obama administration’s use of drone strikes. Although Brennan was ultimately confirmed, the furor over his nomination led to an unprecedented Congressional debate over drone policy, and forced the Obama administration to release previously undisclosed details about its targeted killing program. Paul, a Tea Party darling and likely 2016 presidential contender, is already teed up to lead the fight against the NSA. In addition to threatening a lawsuit against the agency for its domestic phone surveillance, the Kentucky Republican sent a letter to the White House Friday demanding the President respond to allegations that the U.S. spied on Pope Francis and Vatican officials during the papal conclave earlier this year.
But Congress isn’t waiting until Alexander’s departure to act on reining in the NSA. On Tuesday, dozens of lawmakers from both parties introduced a bill that would end the agency’s massive phone record collection program and strengthen prohibitions against targeting the communications of Americans. The legislation, written by Senate Judiciary Chairman Patrick Leahy (D-Vt.) and Patriot Act author Rep. James Sensenbrenner, Jr. (R-Wis.), would also require the government to aggressively delete information accidentally collected on Americans, and create a special advocate’s office tasked with arguing for stronger privacy protections before the Foreign Intelligence Surveillance Court. (Currently, the court only hears arguments from government lawyers in favor of surveillance.)
The proposals set up a protracted battle between members of Congress who wish to curb the NSA’s surveillance programs, and those who believe that those efforts are necessary for preventing terrorist attacks. While a growing number of rank-and-file members support NSA reforms, surveillance hawks—including key members of the House and Senate Intelligence Committees—have defended the agency against allegations of overreach, and promised to protect its broad spying powers.
On Thursday, Senate Intelligence Chair Dianne Feinstein debuted the FISA Improvements Act, an attempt at reform that would actually enshrine the NSA’s "bulk data" collection programs into law and grant official Congressional approval to widespread surveillance programs. "The NSA call-records program is legal and subject to extensive congressional and judicial oversight, and I believe it contributes to our national security," Feinstein said in a statement. "But more can and should be done to increase transparency and build public support for privacy protections in place."
"There is going to be a battle between the Judiciary and Intelligence committees over whether this should be an opportunity to pursue reform, or whether this is the moment that we should be patting the intelligence communities on the back and passing legislation that more explicitly authorizes these programs,” said Michelle Richardson, legislative counsel for the ACLU.
NSA reformers in Congress also face a formidable opponent in Alexander. The NSA chief is famous for having enormous sway with lawmakers on the intelligence committees, and has devoted extensive effort to beating back attempts at reining in his agency. And when 125 privacy activists descended on Capitol Hill to lobby Congressional staffers before the Stop Watching Us rally last month, Alexander was also seen making the rounds at the Senate office buildings. But Alexander’s successor is unlikely to wield as much influence over Congress, and NSA reform advocates may have better luck curtailing the spy agency when a new director is in place.
While it may take several months, anti-surveillance activists are confident that public outrage over the Snowden leaks will ultimately push Congress to act. “Of course, taking on the national security state is never easy,” said Richardson. “But I actually feel pretty optimistic that reform is possible, that these new bipartisan efforts at reform have a better chance than ever before. We have so much more evidence, this time around, and it has finally convinced people that these programs are being used on everyday Americans.”