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By Robert S. Litt, General Counsel, Office of the Director of National Intelligence
Text: privacy security intelligence/

Reviewed by Francis P. Sempa, Contributing Editor

In a recent speech at the Brookings Institution, Robert Litt provided a detailed overview of the law related to the collection of foreign intelligence by the United States government. He stated that the current legal regime in this area provides a balance that protects both privacy and the nation’s security.

Litt focused his remarks on two areas of intelligence collection: the bulk collection of telephone metadata and PRISM. He emphasized that the government’s foreign intelligence activities related to these areas is authorized by Congress and subject to oversight by Executive branch officials, congressional committees, and the Foreign Intelligence Surveillance Act (FISA) Court.

His speech was divided into three parts. First he discussed the laws that govern intelligence collection. Second, he reviewed the impact of changing technologies on intelligence collection efforts. Third, he analyzed how the legal regime and technology changes play out in practice.

The President, Litt pointed out, has extensive responsibility over foreign policy matters by virtue of his Article II powers under the Constitution. Congress has legislated in the area in such laws as the National Security Act, the electronic Communications Privacy Act, the Protect Act, the Patriot Act, and FISA. The Executive Branch has issued relevant Executive Orders. The judicial branch exercises oversight with the FISA Court.

Litt believes that this legal regime has provided a “framework that establishes appropriate controls over what the government can do with the information it lawfully collects, and appropriate oversight…” This provides, he believes, the necessary balance to protect privacy while enabling the government to protect us against terrorists who use global information networks to communicate and plan attacks.

He noted the important difference between collecting foreign intelligence information and conducting criminal investigations. But he neglected to mention that this distinction is often blurred by efforts to treat terrorists who are at war with us as targets of criminal investigations. We use drone strikes to kill suspected terrorists, but we need to go to the FISA Court with a showing of probable cause to collect foreign intelligence about those suspected terrorists. There is a disconnect here that Litt did not explain or explore.

Although Litt mentioned the President’s Constitutional powers in this area, he shied away from examining the scholarly and historically-based analysis by John Yoo and Andrew McCarthy that deems the collection of foreign intelligence to be an exclusive Executive power, inherent in the President’s Constitutional power as commander-in-chief and his recognized primacy in external affairs. Indeed, even the FISA court in a 2002 opinion recognized that the President has inherent constitutional powers to conduct warrantless searches to obtain foreign intelligence and that Congress through FISA cannot encroach on that power. It was Alexander Hamilton in The Federalist who wrote that “energy in the executive” was “essential to the protection… against foreign attacks,” and who noted that the executive will in time of war need to exercise “decision,” “secrecy,” and “dispatch.”End.

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