Looking back, I see a resilient and flexible framework that sustained shocks to the system and adapted to change. national security legal system accomplish these twin objectives? In the paper, I discuss in depth key elements that stand out in my mind as I look back on time as the Civil Liberties Protection Officer for the Office of the Director of National Intelligence. In other words, our national security agencies must protect the nation from foreign threats, without themselves becoming a threat.
At the same time, it is vital that our legal framework also constrain and control the exercise of those powers. A fully transparent intelligence service, after all, would be fully ineffective. And they need the ability to do so in secret, to conceal their sources and methods from their adversaries, lest those adversaries change their behavior to avoid detection. To protect against threats, agencies not only need people, resources, and skill they also need specialized legal authorities that enable them to conduct activities that can be highly intrusive on personal privacy. Failing either means failing as a democracy.Īchieving these goals simultaneously is no easy task. It must enable, authorize, and empower government actors to protect the nation from foreign threats and it must constrain, restrict, and control those actors to protect privacy and civil liberties. In the case of the U.S., the result is both complex and comprehensive.Īt the invitation of the American Bar Association’s Standing Committee on National Security Law, I have written a paper describing certain aspects of this system, titled Protecting Privacy and Promoting Transparency in a Time of Change: My Perspective after 14 Years as Civil Liberties Protection Officer. The longer version is posted here, and a shorter version will be published by the ABA as part of An Anthology: 60 Years of Transformation in National Security Law.Īs I point out in the paper, in a democracy, the national security legal framework must simultaneously achieve two vital goals. Like the national security laws of many other democracies, this system consists of layers of rules and oversight, with a range of institutions and offices playing overlapping and complementary roles. national security law, which establishes a system of many layers with many players. We at Privacy Across Borders are working on our own analyses of how well the executive order at the core of that framework-Executive Order 14086- hits the targets of necessity, proportionality, and redress set out by the Schrems II case.īut first, it is important to place the Executive Order 14086 within the larger context of U.S. The European Data Protection Board is working on its advisory opinion regarding the European Commission’s draft adequacy decision on the EU-U.S.
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