03/31/2014 05:34 pm ET Updated May 31, 2014

What I Told the NSA

Because of my service on the President's Review Group last fall, which made recommendations to the president about NSA surveillance and related issues, the NSA invited me to speak today to the NSA staff at the NSA headquarters in Fort Meade, Maryland, about my work on the Review Group and my perceptions of the NSA. Here, in brief, is what I told them:

From the outset, I approached my responsibilities as a member of the Review Group with great skepticism about the NSA. I am a long-time civil libertarian, a member of the National Advisory Council of the ACLU, and a former Chair of the Board of the American Constitution Society. To say I was skeptical about the NSA is, in truth, an understatement.

I came away from my work on the Review Group with a view of the NSA that I found quite surprising. Not only did I find that the NSA had helped to thwart numerous terrorist plots against the United States and its allies in the years since 9/11, but I also found that it is an organization that operates with a high degree of integrity and a deep commitment to the rule of law.

Like any organization dealing with extremely complex issues, the NSA on occasion made mistakes in the implementation of its authorities, but it invariably reported those mistakes upon discovering them and worked conscientiously to correct its errors. The Review Group found no evidence that the NSA had knowingly or intentionally engaged in unlawful or unauthorized activity. To the contrary, it has put in place carefully-crafted internal proceduresto ensure that it operates within the bounds of its lawful authority.

This is not to say that the NSA should have had all of the authorities it was given. The Review Group found that many of the programs undertaken by the NSA were highly problematic and much in need of reform. But the responsibility for directing the NSA to carry out those programs rests not with the NSA, but with the Executive Branch, the Congress, and the Foreign Intelligence Surveillance Court, which authorized those programs -- sometimes without sufficient attention to the dangers they posed to privacy and civil liberties. The NSA did its job -- it implemented the authorities it was given.

It gradually became apparent to me that in the months after Edward Snowden began releasing information about the government's foreign intelligence surveillance activities, the NSA was being severely -- and unfairly -- demonized by its critics. Rather than being a rogue agency that was running amok in disregard of the Constitution and laws of the United States, the NSA was doing its job.

It pained me to realize that the hard-working, dedicated, patriotic employees of the NSA, who were often working for far less pay than they could have earned in the private sector because they were determined to help protect their nation from attack, were being castigated in the press for the serious mistakes made, not by them, but by Presidents, the Congress, and the courts.

Of course, "I was only following orders" is not always an excuse. But in no instance was the NSA implementing a program that was so clearly illegal or unconstitutional that it would have been justified in refusing to perform the functions assigned to it by Congress, the President, and the Judiciary. Although the Review Group found that many of those programs need serious re-examination and reform, none of them was so clearly unlawful that it would have been appropriate for the NSA to refuse to fulfill its responsibilities.

Moreover, to the NSA's credit, it was always willing to engage the Review Group in serious and candid discussions about the merits of its programs, their deficiencies, and the ways in which those programs could be improved. Unlike some other entities in the intelligence community and in Congress, the leaders of the NSA were not reflexively defensive, but were forthright, engaged, and open to often sharp questions about the nature and implementation of its programs.

To be clear, I am not saying that citizens should trust the NSA. They should not. Distrust is essential to effective democratic governance. The NSA should be subject to constant and rigorous review, oversight, scrutiny, and checks and balances. The work it does, however important to the safety of the nation, necessarily poses grave dangers to fundamental American values, particularly if its work is abused by persons in positions of authority. If anything, oversight of the NSA -- especially by Congress -- should be strengthened. The future of our nation depends not only on the NSA doing its job, but also on the existence of clear, definitive, and carefully enforced rules and restrictions governing its activities.

In short, I found, to my surprise, that the NSA deserves the respect and appreciation of the American people. But it should never, ever, be trusted.

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