EDITOR'S NOTE: This is the latest in a series of stories and opinion pieces previewing the upcoming Aspen Security Forum. Security Clearance is a media sponsor of the event which is taking place from July 17-20 in Aspen, Colorado. Follow the event on Twitter under @aspeninstitute and @natlsecuritycnn #AspenSecurity.
By Elise Labott, CNN
Revelations of classified National Security Agency programs by former contractor Edward Snowden have prompted debate about the public and political oversight of U.S. intelligence and the role of a special court that reviews electronic surveillance requests.
CNN’s Foreign Affairs Reporter Elise Labott talks to Jane Harman, a former Ranking Member of the House Intelligence Committee, about fallout from the Snowden leaks and questions they raise about the role of intelligence collection.
Harman, now head of the Woodrow Wilson Center for International Scholars, will participate in a panel about counterterrorism, national security and the rule of law at the Aspen Security Forum this week.
CNN: The revelation of PRISM has prompted a lot of thought as to whether these programs sacrifice too much of Americans’ privacy in the name of security. Is there a tradeoff?
Harman: Ben Franklin said over 200 years ago that he who surrenders some liberty for security deserves neither. And this is how I see it. I see liberty and security reinforcing values; it’s not a zero sum game. I think on the front end of policymaking, we should consider both how to make us safer and how to protect our values. That is what the Privacy and Civil Liberties Commission was set up to do. The idea was that a congressionally confirmed board of people would review policy at the front end and consider privacy and civil liberties so we would have this positive sum expression of both. And I worry a lot that we have taken too long and if we are attacked again in some major way, we will shred our Constitution. And that makes us less safe.
I think it is good to have a debate about this. If Congress feels the contours of some these programs, once it fully understands them, is too broad, it should scale them back. But I was there for the first half of this movie. From 2003, when I became ranking member on the House Intelligence Committee, through 2006, when I left the committee, and in 2008, during the amendments to the FISA court, I know what we did. I know how much we cared about having the separation of powers work and having oversight of programs by the FISA court and Congress. There have to be limits on executive power. We were strongly against the use of the president’s authorities as a way to justify these programs. We thought they had to strictly comply with law. That is what we worked for and I think that is what we did.
CNN: Are the lines being blurred between domestic and foreign surveillance?
Harman: Some domestic attacks are inspired by foreign connections. FISA has a predicate, which is a foreign terrorist. But it is complicated when there is an American connection. It happens and we have to do it carefully. We have separate institutions. We have the CIA to focus on foreign attacks. We have the FBI to do domestic attacks. And we have an intelligence piece of the FBI which is kind of tricky. The NCTC (National Counterterrorism Center) does fusion.
I am not going to say the line never blurs. But the line that cannot blur is the Fourth Amendment line. Protection of individual rights, as far as I know and as far as I believe, is a paramount value. Our Constitution says there needs to be an individual warrant in order to know the content of a person’s communication or to listen to a phone call or read an e-mail. I am strict about that. The way we set up the FISA court’s review of the programs, like the telephone and the early stages of the PRISM programs, I have reasonable confidence checks and balances in the system are protecting Americans. In fact in 2008, we expended the protections for Americans to include their communications when they are outside the United States.
CNN: Is the FISA Court being abused?
Harman: I don’t know enough about what it is doing now. I think some of its decisions should be declassified or at least summaries should be available. The reports of 100-page decisions leads me to believe that a lot of stuff is being carefully assessed and I think the public has a right to understand how this court approaches issues. I also think the FISA court should be used for “kill lists” of Americans targeted by drones and for offensive cyber attacks. I think it should be expanded to be a counterterrorism court, instead of just a foreign surveillance court.
CNN: Has there been enough public debate about the intersection of our values and our national security interests?
Harman: I have been saying for 10 years that we need a debate about a new framework about our post 9/11 world. We have focused too much on tactics and how to get the bad guy. We call it the whack-a-mole strategy. Playing whack-a-mole will never win the argument with some kid in Yemen trying to strap on a suicide vest. What is far more important, and what we have focused on inadequately, is winning the argument. We win the argument by living our values, and we need to our understand what we do reflects our values.
CNN: How much have Snowden’s revelations damaged U.S. national security and our relations with our allies?
Harman: We don’t yet know the extent of the damage. I think it is extremely substantial. He reportedly downloaded as much as can fit on a thumb drive. That is a lot of information and he is strategically putting it out over time. And a lot of these revelations have been not just been embarrassing, but extremely damaging to our national security. Someone defaced the U.S. Embassy in Berlin with lights that said United Stasi of America (referring to East Germany’s extensive surveillance tactics). This is in Germany, one of our closest allies.
But there are different layers of conversations. There is the public/political level, which reminds me of the movie Casablanca, where they say “I’m shocked, round up the usual suspects.” Then there is a quieter conversation we are having with our allies. And then there are the real conversations in the intelligence world where there has been close cooperation for years and years and will continue.