President Barack Obama's recent policy directive aimed at protecting foreign privacy interests undermines U.S. intelligence gathering capabilities, writes Republican Rep. Mike Pompeo of Kansas and attorney David Rivkin, who served in the Justice Department and the White House Counsel's Office during the Reagan and George H.W. Bush administrations.
"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," Pompeo, a member of the House Permanent Select Committee on Intelligence, and Rivkin, a partner at Baker Hostetler, wrote in an editorial published in The Wall Street Journal
The Presidential Policy Directive, PPD-28, that Obama issued on Jan. 17 in response to the leak of information about the government's secret surveillance programs by former National Security Agency contractor Edward Snowden "threatens American safety by restricting the use of this signals intelligence," they argued.
Under the new directive, U.S. officials have 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.
As a result, Pompeo and Rivkin maintained, "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, because PPD-28 extends the same privacy protections to foreigners that apply to data on U.S. citizens, "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," they said.
While the new policies are not required by law, "in a stunning display of naiveté, 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," they added.
In addition, PPD-28 applies only to signals intelligence and does not govern human intelligence.
"This too reveals the senselessness of the new directive. If we could induce an al-Qaida 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," said the authors.
"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."
They continued, "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."
Noting that national security and intelligence are largely the president's responsibility under the constitution, Pompeo and Rivkin concluded, "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."
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