Opinion: An ex-NSA chief and ACLU adviser can agree on surveillance reform. Why can't Congress?

The current debate over surveillance has been divisive and polarizing. But if a constitutional law professor and an American Civil Liberties Union advisory board member can find common ground with a former director of the National Security Agency and Army general, then Congress should be able to arrive at a compromise on surveillance reform as well.

As Americans, we share these bedrock principles: that freedom, privacy, and individual liberty are fundamental American values; that a core responsibility of our government is to keep our nation and our people safe; that the collection of intelligence is essential in the modern world to protect our nation’s security; and that, at present, the trust of the American people has been eroded and needs to be reestablished with new safeguards that ensure that the agencies charged with carrying out the collection of intelligence do so in a manner that is consistent with our deepest national values. 

That is not to say that the nation’s intelligence agencies have abused their authority. To the contrary, the NSA and other intelligence agencies have worked conscientiously to operate within the express authorities that Congress, the White House, and the Foreign Intelligence Surveillance (FISA) Court have given them. Indeed, the men and women who work at NSA and other national security agencies deserve our admiration and support. Although intelligence agencies often operate out of necessity in secret, in our experience they adhere to the rule of law and comply with multiple layers of effective oversight. 

We must recognize that striking the “right” balance between personal liberty and national security requires constant attention and reassessment. This is especially true following periods of crisis, when there is understandable pressure to tip the scales in favor of national security. 

Fifteen years after 9/11, it is imperative that we continue to recognize that the threat is real, that another major terrorist attack would seriously endanger not only lives and property, but also our ability to protect privacy and liberty in the future, and that intelligence analysts need the tools required to keep our nation safe. 

That’s why we both support taking a hard look at surveillance laws to find ways to maintain the operational effectiveness of our counterterrorism tools, while safeguarding privacy and civil liberties. With that goal in mind, we both support crafting new legislation that would restore the American people’s trust in our intelligence agencies and ensure both legitimacy and support for critical intelligence collection.  

And while the two of us may not agree on all issues involving the legislative proposals, we both agree that the current debate points us toward changes that Congress can and should adopt.  

First, there is the Section 215 phone metadata program, which has generated a great deal of attention in the US because, unlike other foreign intelligence programs, it authorizes the collection of bulk information about American citizens. 

Under this program, which was designed to address a gap in collection that was exposed by the attacks of 9/11, the FISA Court, with the ongoing approval of both the Congress and the executive branch, authorized the NSA to collect from telephone service providers in the US call records – not including the content of any telephone calls – in bulk. The goal, in short, was to enable the NSA to “connect the dots” and to determine whether suspected terrorists might be in touch with one another. Although expansive in nature, the program is subject to strict controls and extensive oversight by all three branches of the federal government.

Congress is currently considering reforming this program to prohibit the government itself from collecting this data in bulk. Rather, the law would require phone service providers to hold the data, and the NSA would need a court order to obtain the information only in specific cases. Another proposal would be to authorize a group of third-party providers, subject to independent audits and public oversight, to hold such data. 

Although these reforms pose technological and operational challenges, for years, NSA has supported efforts to develop workable alternatives to the current system. These reforms substantially reduce the concern about possible government abuse of this data, while at the same time enabling the government to seek the information on an as-needed basis with the approval of a court. If operationally feasible, an alternative to the current program would be an important, wise, and sensible reform.

Second, the FISA Court was created by Congress in 1978 to bring foreign intelligence surveillance under the authority of the judiciary for the first time in American history. This was a major and critically important change in our national security policy. But, as originally envisioned, the FISA Court permitted only representatives of the government to appear before it. As a consequence, in at least some situations, when addressing complex issues of statutory or constitutional interpretation, the judges heard only one side of the possible arguments.

Legislation could address this situation by creating an explicit opportunity for the court to hear from outside counsel. For example, in cases involving significant legal issues, one potential reform could allow the court to hear from attorneys who are obligated to voice the interests of privacy and civil liberties to appear and argue before the court so that the judges hear both sides of these questions. This change may give the public greater confidence in the court’s rulings.

We should continue to look for other steps the nation can take to increase the protection of privacy and civil liberties, while still enabling the government to carry out its obligation to keep our nation safe. We would support reasonable measures to increase transparency, as well as greater efforts to enlist the help of the technology community to come up with solutions that increase privacy protection.

We face a crossroads. It is time for us to step back and evaluate our current programs and policies in a clear-eyed and thoughtful manner. We need to do this not only to preserve our fundamental values of privacy, civil liberties, and individual liberty, but also to ensure that our intelligence agencies have the tools necessary to protect the nation, along with the trust and confidence of the American people. 

Gen. Keith Alexander (ret.) served as the director of the National Security Agency from 2005-2014. He is currently the CEO and president of IronNet Cybersecurity Inc. Geoffrey Stone is the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago and a member of the National Advisory Council of the American Civil Liberties Union.