Obama’s directive to protect the privacy of foreigners will make Americans less safe.
By Mike Pompeo and David B. Rivkin Jr.
On Jan. 17, in response to former National Security Agency contractor Edward Snowden’s theft of U.S. intelligence secrets and concerns over the NSA’s bulk metadata collection, President Obama issued a Presidential Policy Directive (PPD-28) that neither strengthens American security nor enhances Americans’ privacy. To the contrary, it undermines our intelligence capabilities in service of a novel cause: foreign privacy interests.
All nations collect and analyze foreign communications or signals, what is known as “signals intelligence.” American technological prowess has produced the world’s most abundant stream of signals intelligence, thwarting plots against the U.S. and saving lives. PPD-28 threatens American safety by restricting the use of this signals intelligence.
First, under the new directive, U.S. officials are required to ensure that all searches of foreign signals intelligence are limited to six purposes: countering foreign espionage, terrorism, weapons of mass destruction, cybersecurity, threats to U.S. or allied forces, and transnational crime.
Such policy guidance is appropriate in principle, but these limitations are mere window dressing. Intelligence activities are already heavily scrutinized by executive-branch lawyers to protect Americans’ privacy. Yet the intelligence community must now operate under the presumption that they are somehow engaged in wrongdoing and must justify each and every step by reference to a proper “purpose” to rebut that presumption. This will make intelligence analysts overly cautious and reduce their flexibility in handling security threats.
Second, PPD-28 extends the same privacy protections to foreigners that now apply to data regarding “U.S. persons,” defined as U.S. citizens anywhere in the world and anyone in the U.S. The most visible result will be that intelligence concerning foreigners will contain redactions of material that may have value to U.S. security and diplomacy. The policy contains an exception for information “relevant” to understanding the substantive content of foreign intelligence, but analysts will inevitably face pressure to go with the redaction rather than bring in the lawyers to justify an exception.
These new policies aren’t required by law. Just as foreign terrorists should not be read their Miranda rights, the U.S. Constitution, including the Fourth Amendment’s requirement that searches be reasonable, doesn’t apply to foreigners outside the U.S. And international law imposes no limitations on foreign surveillance. Yet in a stunning display of naïveté, Mr. Obama says it is crucial that people in foreign countries, from Pakistan to Peru, understand that “the United States respects their privacy too.” The leak last week of the recording of a sensitive phone call between two senior State Department officials regarding Ukraine—almost certainly the result of Kremlin surveillance—vividly indicates how other countries feel about protecting Americans’ privacy.
PPD-28 applies only to signals intelligence and has nothing to say about human intelligence from spies, defectors and friendly intelligence services. But this too reveals the senselessness of the new directive. If we could induce an al Qaeda leader to defect, everything in his possession could be used immediately, helping to make connections and capture or kill our enemies. But if we obtained the same information through signals intelligence, much of it would have to be redacted in the name of a privacy “right” not recognized by U.S. or international law.
This disparate treatment of signals and human intelligence will complicate “connecting the dots.” Human and signals intelligence should work together to inform policy makers of a possible threat as quickly and thoroughly as possible. But imposing different restrictions on intelligence data from human and technological sources prevents that from happening. Different data regarding the same threats will be subject to different legal requirements and limitations on use and disclosure. That will require more lawyering and more time, neither of which helps U.S. security.
History provides numerous examples of how vital it is to integrate signals and human intelligence. Their interplay has long been used to direct troop movements, bombing campaigns and drone strikes, and it was crucial to finding Osama bin Laden.
Consider the 1962 Cuban missile crisis. Seeking to upend the strategic nuclear balance, Moscow installed short- and intermediate-range ballistic missiles in Cuba, reasoning that U.S. intelligence wouldn’t detect them until they were operational. American spy planes provided only low-quality photographs (signals intelligence) of the missile sites.
But because Soviet Lt. Col. Oleg Penkovsky, a double agent, had provided British and U.S. intelligence with information about the standard Soviet missile-base layout, analysts were able to interpret the spy-plane data to ascertain what Moscow was doing in Cuba. This kind of synergy between signals data and human intelligence will be stymied by policies that undermine flexibility in the use of intelligence from different sources.
Under the Constitution, national security and intelligence are largely the president’s responsibility. Because President Obama has decided to recognize a foreign right to privacy, Congress has little ability to check his move. But lawmakers can and should shine a bright light on PPD-28 and hold him accountable for a directive that will hobble our foreign-intelligence capabilities, even as the world spies on us and threats to Americans multiply.
Mr. Pompeo, a Republican from Kansas, is a member of the House Permanent Select Committee on Intelligence. Mr. Rivkin is a partner at Baker Hostetler LLP and served in the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush administrations.