President's Intelligence Review Panel “wasn’t thinking in constitutional terms”

On August 9, 2013, President Obama, responded to the never ending NSA surveillance scandal by forming a panel to give him recommendations on how to change the intelligence community's practice of wholesale spying on the whole world. Although the panel was touted as independent and tasked with safeguarding liberties, its function was very different both in its inception and execution.

The panel answered to the president through Director of National Intelligence James Clapper, and consisted of intelligence community and Obama administration insiders. The charge of the review panel was to “assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust.”

Reading the charge, one sees that maintaining the public trust was the last of so-called “other policy considerations.” Public trust, in the president's own words, is a policy consideration, not a mandate. The “risk of unauthorized disclosure,” which appears to be a code word for whistleblowers, is apparently more important to Obama and the intelligence community than the public trust. Perhaps the most enlightening statement concerning the panel came from panel member and noted constitutional scholar Cass Sunstein, who said in an interview that the group “wasn’t thinking in constitutional terms.”

Sunstein's interview appeared in the New Republic, a former flagship publication of the progressive movement. Sunstein, in addition to his duties of advising the intelligence community and teaching law, is also a contributing editor for the same publication. The journalist that conducted the interview, Jeffery Rossen, is also a member of the Reporters Committee for Freedom of the Press, which contributed one of the 37 published public comments to the panel.

While the public had three months to contribute comments and the Unites States has a population of over 300 million, the Office of the Director of National Intelligence claims to have published all 37 comments it received for both citizens and interested groups. James Clapper's record of providing the “least untruthful” answers to Congress heaps doubt on the volume and content of public comments provided by his office.

Sunstein's statement about the lack of constitutional focus and consideration of the panel is as disingenuous as his roundabout participation in the public discourse concerning its findings. He is not only a contributing editor for The New Republic, a historically liberal journal, but was also interviewed for an article by their legal affairs reporter, who likely answers to him. Also, as disingenuous, Sunstein was interviewed about a presidential panel he sat on, after he worked directly in the Obama White House. The New Republic's current owner, Facebook co-founder Jeff Hughes, was digital campaign strategist for the 2008 Obama Campaign, and thus an insider to the same administration that formed the review panel. Facebook is one of the many internet companies alleged to give information to the NSA.

The New Republic's use of Sunstein as the editor/scholar to whitewash the whitewash produced in part by Sunstein – the administration insider – is as telling as The New Republic’s core demographic. According to their website, their average subscriber is 51 years old with a graduate degree (which presumably includes MBAs) with a median income of nearly $100,000 per year. The New Republic calls these people “some of the most educated and influential people in the country.” Rossen and Sunstein clearly think that it is acceptable for “educated and influential” people to have their freedoms determined by a panel that was constructed to reach optimization conclusions about the NSA's spying practices while not “thinking in constitutional terms.”

The public statement allegedly given by the Reporter's Committee for Freedom of the Press, which bears Rossen's name and was submitted before he interviewed Sunstein, expressed the fear that widespread spying might deter government insiders from leaking to the press. The group produced recommendations designed, laudably, to protect reporters from NSA spying. It proposed guidelines and procedures concerning when and where journalists may have their every word and contact scrutinized by the intelligence community.

Their public comments were nearly silent on privacy rights of the average citizens of the nation and world. The coalition was seemingly quite subservient to the needs of the intelligence community, refraining from “taking a position on the merits of any particular national security program or the institutions that support them.”

The Columbus Free Press, unlike better connected, more “influential” members of the press who seem now to be intelligence community insiders, understands the role of a free press as the fourth estate, a guardian and defender of a public trust, and role as both defenders and exercisers of the broader public's civil rights, even in this post-constitutional new American century.