TRUST AND TRANSPARENCY
JACK GOLDSMITH: This is a big challenge for any secret intelligence agency, especially for the NSA, especially in a world in which everything is computerised in there and the networks. So one of the ways to build trust more is to have more transparency. And one of the things that the NSA has learned is that this secret system of checks and balances is not enough. And other things we've learned from the Snowden revelations is that the NSA wasn't very good at explaining itself. Even when it had a good story to tell it, it didn't have any training in public explanation and it was very shy about talking. It's in their DNA not to talk publicly about what they do. And I think that ultimately, the intelligence communities in the United States are changing quite a lot, especially on this front. There's much more disclosure, especially about the legal basis, especially about what programmes are happening, what's going on at the programmatic level as opposed to the detailed level. There's a lot more transparency that the Intelligence Committee on its own, not forced by courts, made much more transparent. And this is because they realised that secret checks and balances in secret or not enough. That programmes that they thought were legitimised and approved by all three branches of government, when disclosed to the public, there was not as much confidence as they expected there would be. They understand also that in the digitalised world, just as they can get at more secrets than before, their secrets can be gotten at. So they realised that they're not going to be able to maintain transparency as much. So you can see, one consequence of Snowden I think is a happy consequence from the perspective of the US government is that they need more transparency in the intelligence community. They realise they have the balance wrong. They realize they have to be better at explaining themselves. Ultimately, I think that their actions are going to be more legitimate. And ultimately, I think that's going to enable us-- the United States-- to empower these agencies to do more in these networks to keep us safe. So one of the ironies of the Snowden revelations is that it might leave US government to reform itself in ways that will allow it to do more work inside the network of the type that Snowden didn't like. INTERVIEWER: But in terms on this issue of public trust, you speak about a cultural change and internal processes that reflect that cultural change, but some countries have opted for external review mechanisms of security agencies. So the opportunity to collect and surveil intelligence is accepted. But they're just to ensure there's no excess some how. JACK GOLDSMITH: What do you mean by external review? INTERVIEWER: So in countries such as our own, in Australia, there was appointed for a period of time, like an ombudsman, who would oversee for a set period of time the running of security agencies. A person who would represent public interest more formally than just relying on cultural change. Is that something that-- JACK GOLDSMITH: It's something that the United States has a lot of already. We have an Inspector General who is really an independent agency inside of each intelligence community. We have various privacy and civil liberties boards. We have various entities inside the Executive Branch. There's talk about adding an adversarial interest to the FISA Court process. I would say that I'm quite confident that in terms of independent checks on what's going on, there are more in the US system than anywhere else in the world. But by independent, I don't mean public. So these are independent checks, in secret, outside the Executive Branch, or in the Executive Branch but detached from the usual operation. We have a lot of that and I think it's worked pretty well on balance. But the problem is not independent checks, the problem is secrecy versus transparency. And I don't think we need more independent checks. In fact, we're reaching the point where they're becoming arguably counterproductive. There's so many voices, so veto points, so many second guessing. The National Security Agency-- if you talk to someone who does SIGINT down in the bowels of the NSA, they will tell you that they do 80 hours a year of training. That they've got all sorts of extremely elaborate rules of what they can and can't do, and that this stuff gets in the way of their mission, even though they comply with it-- they do it. And so independent checks and more levels of scrutiny I think are less the answer than bringing these levels of scrutiny to the public. And that's a hard trade-off because there's no doubt that what the NSA has revealed-- what Snowden revealed and what the NSA revealed on its own-- has to some extent, harmed collection efforts. I just have zero doubt about that-- it has to be the case. On the other hand, there's a trade-off, though. And the trade-off is you give up a little bit on the means and methods of collection and on being able to act in secret to trick the adversary. You give up a little bit of that in exchange for more public trust. And finding that balance is hard and it's contextual. And it also involves not just getting the balance right but explaining it well. And we're working through that now. But I'm pretty confident at the end of that process is going to result in a more robust and more legitimate National Security Agency because of the security needs that they are going to be addressing that ultimately is what people really care about.
CULTURAL CHANGE
PROFESSOR JACK GOLDSMITH: This is a big cultural challenge for the intelligence community, to be able to talk more openly about what they can do. But they know they have to do it. They have to do it for a variety of reasons. One, they can't keep secrets the way they used to. Secrets are just harder to keep because the bureaucracy is big and things leak out. Second, they realise they need to do it for transparency. So they're still sorting that out. That's a very hard thing to accomplish. They've gotten a lot better at it. They're still not great at it, both either in what they reveal, are they revealing enough, or how they reveal and how they explain it. But that is what Snowden is forcing them to do and I have no doubt that that will continue.
SECRET ACTIVITIES
JACK GOLDSMITH: One essential problem in maintaining public trust in these areas is these activities are secret. And they're secret for very good reasons. The intelligence agencies operate in secret because anything that's disclosed publicly to the American people for purposes of their democratic control and liberation are also disclosed to the adversary who is trying to defeat the system and that the system is designed to meet. So there's a reason why a lot of these activities are secret. And the problem is that in secret, the United States has actually developed a very robust system-- much more robust than anywhere else in the world-- of checks and balances inside the world of secrecy. So there are lots of internal constraints-- there's a secret court, there's special reporting to the intelligence committees. INTERVIEWER: This is the FISA Court? FISA Court is the secret court. There's lots of reporting to the intelligence committees. There are lawyers, inspector generals, and civil rights boards, and all sorts of actors acting inside the government to make sure that these activities are bound by law and legitimate. And what the Snowden disclosures did was-- and some people think the Snowden disclosures show that those institutions weren't working very well. I don't really believe that. And I think that they did show that the intelligence agencies may not have gotten the balance right, but imagine if those disclosures had come out and we didn't have all those checks in place. The truth is, despite the initial very strident reaction against Snowden, it's kind of tamped down. And when it actually comes time for reform, a lot of the investigations have shown, maybe we shouldn't change too much. Maybe we need to just change the margins a bit, Maybe especially with bulk data collection, metadata collection that needs to be tamped down on. But a lot of the other programmes were thought to been run well, remarkably well in secret. So we have this very robust secrecy system, but it's proven not to be enough. One of the things Snowden showed us is that the government was too secretive, And a lot of the controversy that occurred because of the Snowden revelations just came about because people didn't know what was going on. And there was a large gap in expectations between what people thought it was doing and what it was actually doing.
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