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Notre Dame Journal of Law, Ethics & Public Policy
Volume 19
Issue 1 Symposium on Security & Liberty
Article 10
February 2014
Balancing Security and Liberty: The Challenge of
Sharing Foreign Signals Intelligence
Michael V. Hayden
Follow this and additional works at: http://scholarship.law.nd.edu/ndjlepp
Recommended Citation
Michael V. Hayden, Balancing Security and Liberty: The Challenge of Sharing Foreign Signals Intelligence, 19 Notre Dame J.L. Ethics &
Pub. Pol’y 247 (2005).
Available at: http://scholarship.law.nd.edu/ndjlepp/vol19/iss1/10
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BALANCING SECURITY AND LIBERTY:
THE CHALLENGE OF SHARING FOREIGN
SIGNALS INTELLIGENCE
MICHAEL V. HAYDEN*
Those who would give up essential Liberty, to purchase a little
temporary Safety, deserve neither Liberty nor Safety.
-Benjamin Franklin
While protecting our homeland, Americans should be mindful of
threats to vital personal and civil liberties. This balancing is no
easy task, but we must constantly strive to keep it right.
-The 9/11 Commission Report’
INTRODUCTION
What is the right balance between security and liberty? This
question is fixed in the national consciousness as the country
faces unprecedented terrorist threats. It is particularly pressing
for me as the head of the National Security Agency/Central
Security Service (“NSA”),2 the world’s largest collector of foreign
signals intelligence. For signals intelligence (“SIGINT”), the
current balance was struck in the 1970’s as a result of congres* Lieutenant General, United States Air Force; Director, National Security Agency; Chief, Central Security Service. President George W. Bush recently
appointed General Hayden to serve as the Nation’s first Deputy Director of
National Intelligence.
1. NAT’L COMM’N ON TERRORIST ATTACKS UPON THE U.S., THE 9/11 COMMISSION REPORT 394 (2004) [hereinafter 9/11 COMMISSION REPORT].
2. The National Security Agency (“NSA”) is an element within the
Department of Defense. NSA is America’s cryptologic organization; it coordinates, directs, and performs highly specialized activities to protect U.S. information systems and produce signals intelligence. As a high technology
organization, NSA is on the leading edge of communications and data processing. It is also one of the most important centers of foreign language analysis
and research within the Federal Government. The Director of the NSA is
responsible for overseeing the entire United States Signals Intelligence System,
which includes the cryptologic elements of the Military Services known as the
Central Security Service. For ease of reference, this essay will use “NSA” as an
umbrella term for the entire U.S. cryptologic system.
3. Signals intelligence is comprised of communications intelligence and
electronics intelligence. Communications intelligence consists of foreign communications passed by radio, wire, or other electromagnetic means. Electronics
intelligence consists of foreign electromagnetic radiations such as emissions
from a radar system.
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NOTRE DAME JOUPVAL OF LAW, ETHICS & PUBLIC POLICY
[Vol. 19
sional investigations into activities by NSA and others concerning
the privacy of Americans. These investigations led to the creation of the present oversight and legal structure in the executive,
legislative, and judicial branches. The events of September 11,
2001, have caused people to assess once again the line between
security and liberty. This reassessment manifests itself in a major
issue confronting my agency today: how to share SIGINT more
broadly while protecting U.S. privacy rights.
1.
STRENGTHENING SECURITY: THE IMPERATIVE
To
SHARE
A great deal of attention has been paid in the aftermath of
9/11 to the need to share terrorism information more widely.
The 9/11 Commission, for example, found that some information about the hijackers was not effectively communicated
between federal entities. To rectify this, it recommended that
information be shared horizontally, across new decentralized
networks that transcended individual agencies.4 The President’s
recent Executive Order 13,356 implements this recommendation
by promulgating guidelines on the responsibility of federal
departments and agencies to share terrorism information and to
prepare it for maximum distribution; ordering the development
of executive branch-wide collection and sharing requirements,
procedures, and guidelines for terrorism information to be collected within the United States; and establishing an Information
Systems Council charged with developing an automated environment for sharing terrorism information. 5 The President also
established his Board on Safeguarding Americans’ Civil Liberties.6 On December 17, 2004, the President signed into law the
Intelligence Reform and Terrorism Prevention Act of 2004. 7 At
the time this article was being prepared, agencies were studying
how to implement the Act’s provisions creating an “Information
Sharing Environment” along the lines recommended in the 9/11
Commission Report.
NSA was already moving aggressively to share more horizontally. Intelligence is not an end in itself. An intelligence agency’s
main function is to gather the best information available on topics of interest to government clients and pass it to them in a
timely and accurate fashion. Intelligence is useful only to the
degree that it informs effective action on the part of its users.
4.
9/11
5.
COMMISSION REPORT, supra note 1, at 417-18.
Exec. Order No. 13,356, 69 Fed. Reg. 53,599 (Aug. 27, 2004).
6.
7.
Exec. Order No. 13,353, 69 Fed. Reg. 53,585 (Aug. 27, 2004).
Pub. L. No. 108-458, 118 Stat. 3638 (2004).
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BALANCING SECURITY AND LIBERTY
A.
NSA’s “Traditional”Approach
In dealing with the type of SIGINT we call communications
intelligence, we have traditionally worked to add value for our
clients through a production process encompassing the (1)
acquisition of signals, (2) processing of signals into recognizable
data, (3) organization of data into knowledge (facts and relationships), and (4) creation of intelligence (applied knowledge).
Only in the latter stages of this process have we traditionally published a report to our clients. In dealing with electronic intelligence, a form of SIGINT derived from radar and telemetry
signals, we generally have been more comfortable allowing clients to access our system at earlier stages of our production process. This is partly because clients can add their own value to the
data, and partly because privacy concerns with this form of
SIGINT are minimal.
B.
Increased Sharing
Today, however, NSA is moving to share more communications-based SIGINT and to do so earlier in the process. Driven
by the demands of the war on terrorism, our Intelligence Community partners and clients increasingly want, and need, to
“swim upstream” in the production process and take a more
active role in the creation of our communications SIGINT products and services.
NSA is making transformational changes in how we share
SIGINT with our Intelligence Community partners and clients.
This sharing is consistent with Executive Order 13,356, the Director of Central Intelligence’s emphasis on greater collaboration,
and the Defense Department’s work on horizontal integration.
NSA has already demonstrated great success in sharing with multiple agencies in Operations Enduring Freedom and Iraqi Freedom. We have pioneered joint, multi-intelligence reporting with
Intelligence Community and Department of Defense (“DoD”)
components, embedded analysts with other intelligence agencies, provided database access andknowledge sharing as part of
new partnerships with intelligence agencies, and begun a geospatial analysis training course for joint military and multi-agency
personnel.
NSA is willing to provide information in whatever form a client may find useful, and the client’s information needs and ability to add value will determine how far up the SIGINT
production process he needs to swim. We understand that our
clients have a need for certain SIGINT data elements derived
from adversary communications. Some clients may even have
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NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY
[Vol. 19
the language skills to want the native language content of
intercepts and transcripts. NSA is working hard to meet client
information needs while maintaining legal obligations regarding
U.S. privacy.
II.
PRvACY CONCERNS ABOUT SHARING
SIGINT
The 9/11 Commission is absolutely correct in
“the privacy of individuals about whom informationnoting that
is shared”
must be safeguarded. 8 There are special concerns when it comes
to sharing SIGINT.
SIGINT is Electronic Surveillance. Producing SIGINT
involves conducting electronic surveillance for foreign intelligence and counterintelligence purposes. In order to satisfy the
breadth of the requirements for signals intelligence levied by our
military and policymaker clients, NSA conducts electronic surveillance across a wide spectrum of media and in large volumes.
We hunt for foreign intelligence on a broad range of topics,
including terrorism, weapons proliferation, narcotics, money
laundering, political and economic developments, tactical military issues, and arms control.
A key point: even though we do our best to avoid obtaining
information about U.S. persons at the front end of our collection
process, it is inevitable we will obtain it through incidental, or
unintentional, collection. Even if the percentage of U.S. person
information NSA incidentally obtains were very small compared
to the total volume of communications NSA intercepts, we collect so much information that the amount of U.S. person information incidentally collected would not be insignificant.
A practical example illustrates the issue. In response to a
client’s stated need for information on terrorism, NSA targets
the communications of two suspected foreign terrorists, both
communicating overseas. During the exchange, one suspected
terrorist raises the issue of a prominent U.S. businessman. NSA
was not intentionally targeting the businessman, but it incidentally acquired information about him during the legitimate
targeting of two suspected foreign terrorists. The businessman’s
privacy rights would be infringed if NSA were to distribute his
name in an intelligence report across the breadth of the executive branch in an unrestricted fashion. Rules are needed to
guide intelligence agencies about the collection, retention, and
dissemination of information about individuals with U.S. privacy
rights so that these activities pass constitutional muster. The 9/
8.
9/11 COMMISSION REPORT, supra note 1, at 394.
BALANCING SECURITY AND LIBERTY
2005]
11 Commission reached the same conclusion: “[T]he sharing
and uses of information must be guided by a set of practical poloffiicy guidelines that simultaneously empower and constrain
9
cials, telling them clearly what is and is not permitted.”
III.
SAFEGUARDING LIBERTY: OVERSIGHT AND LAW
The 9/11 Commission is also right that increased and more
rapid sharing “calls for an enhanced system of checks and balances to protect the precious liberties that are vital to our way of
life.”‘ ° The American people, by experience and temperament,
distrust concentrations of power and government operations
conducted in secrecy. NSA is a very powerful, secret agency. To
keep the people’s trust, NSA must be extremely careful to follow
rules that have been laid down by elected representatives in the
legislative and executive branches, as well as by the courts. These
rules are reflected in a framework of oversight and law.
A.
The Oversight Framework
In performing its mission, NSA constantly deals with information that must remain confidential so that it can continue to
collect foreign intelligence on various subjects that are of vital
interest to the nation. Intelligence functions are of necessity
conducted in secret, yet the tenets of our democracy require an
informed populace and public debate on national issues. The
American people must be confident that the power they have
entrusted to NSA is not being, and will not be, abused. The
resulting tension-between secrecy on one hand and open
debate on the other-is best reconciled through rigorous oversight. It serves as a needed check on what has the potential to be
an intrusive system of intelligence gathering. The oversight
structure, in place now for nearly a quarter of a century, has
ensured that the imperatives of national security are consistent
with democratic values. United States intelligence today is a
highly regulated activity and properly so.
U.S. intelligence was not always so highly regulated. The
1970’s were a watershed for the Intelligence Community. Congressional investigating committees led by Senator Frank Church
and Congressman Otis Pike found that government agencies,
including NSA, had conducted a number of intelligence activities
directed against U.S. citizens. This included a mail opening
effort and placing certain U.S. persons on surveillance watch
9. Id. at 419.
10. Id. at 394.
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NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY
[Vol. 19
lists. The revelations of these committees resulted in new rules
for U.S. intelligence agencies, rules meant to inhibit abuses while
preserving intelligence capabilities. In other words, a concerted
effort was made to balance the country’s need for foreign intelligence with the need to protect core individual privacy rights.
A wide-ranging, new intelligence oversight structure was
constructed. A series of laws and executive orders established
oversight procedures and substantive limitations on intelligence
activities. In the aftermath of the Church and Pike committees’
revelations, Congress passed the Foreign Intelligence Surveillance Act (“FISA”), which created a special court for considering
and approving surveillances that occur in the United States and
thus have the potential to affect rights guaranteed by the Constitution. The House and Senate each established intelligence
oversight committees. President Ford issued an executive order
that established for the first time a formal system of intelligence
oversight in the executive branch. Oversight mechanisms were
established within the Department of Justice and within each
intelligence agency. The President also established an independent Intelligence Oversight Board (“OB”). The result today at
NSA is an intelligence gathering system that operates within
detailed, constitutionally based, substantive, and procedural limits under the watchful eyes of Congress, numerous institutions
within the executive branch, and-through FISA-the judiciary.
1.
Legislative Oversight
The appropriations, armed services, and intelligence committees of Congress conduct extensive review of NSA activities.
The committees regularly call for detailed briefings on NSA’s
activities. Committee staffers routinely visit NSA Headquarters
and field sites. The intelligence committees also receive formal,
semi-annual reports from the Department of Justice concerning
NSA’s activities under FISA. NSA has in place procedures for its
FISA and other activities to ensure that the Agency acts in a manner that protects the privacy rights of U.S. persons. These procedures, as well as any subsequent changes, are reported to the
intelligence committees prior to implementation. Further, NSA
is legally required to, and does keep the intelligence committees
fully and currently informed of all intelligence activities, including any significant anticipated intelligence activity; furnish any
information on intelligence activities requested by the committees to carry out their oversight responsibilities; and report to the
committees any illegal intelligence activity.
20051
2.
BALANCING SECURTY AND LIBERTY
Executive Branch Oversight
Within the Executive Office of the President, the Intelligence Oversight Board conducts oversight of intelligence activities. The IOB reports to the President and the Attorney General
on any intelligence activities the IOB believes may be unlawful.
The IOB also reviews agency Inspector General and General
Counsel practices and procedures for discovering and reporting
intelligence activities that may be unlawful, as well as conducts
any investigations deemed necessary to carry out their functions.
Agency procedures for protecting privacy rights are provided to
the IOB prior to implementation.
In the Department of Justice, the Office of Intelligence Policy and Review (“OIP&R”) reviews compliance with the courtordered procedures designed to protect the privacy rights of U.S.
persons. This office also files semi-annual reports with Congress
on electronic surveillance conducted under FISA and is intimately involved with NSA’s FISA applications. The Office of
Legal Counsel at the Department of Justice as well as OIP&R
have been involved in setting the legal standards under which
NSA’s signals intelligence activities are conducted to ensure that
these activities strike an appropriate balance between the country’s intelligence needs and individual privacy rights.
In the Department of Defense, the Assistant to the Secretary
of Defense (Intelligence Oversight) and the Office of General
Counsel are engaged in intelligence oversight of NSA. Within
NSA, the Signals Intelligence Directorate’s Center for Oversight
and Compliance, the Inspector General, the General Counsel,
and NSA’s Intelligence Oversight Board also conduct oversight
of NSA activities. The NSA Office of General Counsel conducts
extensive privacy protection and intelligence oversight training
for all Agency employees who are involved in collection that
implicates privacy rights. NSA also enforces a strict set of audit
procedures to ensure compliance with the privacy rules.
3. Judicial Oversight
The Foreign Intelligence Surveillance Court (“FISC”) is
authorized by FISA to issue court orders for electronic surveillance directed against foreign powers or their agents. In reviewing applications for court orders, FISC judges scrutinize the
targets, the methods of surveillance, and the procedures for handling the information collected.
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NOTRE DAME JOURNAL OF L4W, ETHICS & PUBLIC POLICY
B.
[Vol. 19
The Legal Framework
A wide array of statutes and executive branch directives govern NSA’s intelligence activities. We scrupulously follow these
rules. Electronic surveillance conducted for foreign intelligence
purposes is regulated by statutory provisions flowing from FISA
and procedures flowing from Executive Order 12,333,11 which
manifest themselves in the form of restrictions applicable to all
intelligence collection activities and specific restrictions (Attorney General Procedures) regulating NSA’s electronic surveillance activities.
1.
Statutory Restriction on Electronic Surveillance in the
United States-FISA
Under FISA, NSA may only target communications of a U.S.
person 2 in the United States if a federal judge finds probable
cause to believe that the U.S. person is an agent of a foreign
power. Probable cause exists when facts and circumstances
within the applicant’s knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a person of
reasonable caution to believe that the proposed target of the surveillance is an agent of a foreign power. Under the statute, a
judge may determine a U.S. person to be an agent of a foreign
power only if there is information to support a finding that the
individual is a spy, terrorist, saboteur, someone who aids or abets
them, or who enters the United States under false or fraudulent
identity for or on behalf of a foreign power.
All FISA collection is regulated by special procedures
approved by the FISA Court an …
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