Hold Your Fire: The Intelligence Community’s Problem With Privacy Officers

Editors Note: “ Rethinking Intelligence ” is a project of the Brennan Center for Justice at New York University School of Law that examines the contemporary U.S. intelligence community, which fellow Michael German argues “has grown too large, too expensive, too powerful, too ineffective, and too unaccountable to the American people.”

In this occasional series, Defense One presents a selection of commentaries and interviews conducted by the Brennan Center with officials from defense, homeland security, federal law enforcement, Congress, intelligence, and other groups who present their ideas to improve the business of American intelligence.

Their arguments tackle three fundamental questions: what is the scope of the new intelligence community, why does it sometimes fail, and how should the US reform it? For more, visit the Brennan Center online .

Mary Ellen Callahan is not a terrorist. But her intelligence community colleagues routinely called her one because she tried to do her job as the chief privacy officer at the Department of Homeland Security. In a recent interview, Callahan gives a personal account of the challenges she faced when trying to apply privacy protections to intelligence collection programs:

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Intelligence officials have gone to great lengths to avoid public accountability. Under Director John Brennan, the CIA stonewalled and spied on congressional investigators examining its torture program, then threatened them with criminal prosecution. Director of National Intelligence James Clapper falsely deni ed that the NSA collects data on millions of Americans during testimony before the Senate Intelligence Committee. These are just two of many examples of deceptive behavior designed to resist democratic oversight of intelligence activities. Clapper has argued that his “ least untruthful ” response was necessitated by his obligation to protect the secrecy of the critical national security programs he was responsible for managing. The public needn’t worry about the lack of sunlight on intelligence activities, officials tell us , because vigorous internal oversight mechanisms ensure that intelligence agencies do not abuse their authority.

So it is more than disheartening to hear that members of the intelligence community would act in such a childish and unprofessional manner toward a fellow government official assigned to conduct this difficult but critical duty of internal oversight. Callahan served as the chief privacy pfficer and chief freedom of information officer at DHS from March 2009 to August 2012, and held some of the highest security clearances our government offers. Her job was to examine DHS policies and review its performance to ensure that as DHS officials pursued their important missions, complied with their legal obligations to protect the privacy of those they interacted with, and provide public accountability. Fulfilling these requirements is not optional in a democratic society; it is an essential part of good governance for any agency. Yet for performing her duties, her colleagues regularly called her an agent of the enemy. This experience revealed troubling attitudes within the intelligence community regarding their attitudes toward the laws governing the behavior of its agents.

It should be no surprise that people working in national security have a tendency toward overzealousness. Supreme Court Justice Louis Brandeis warned in 1928 that “the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” The more crucial the mission and the greater secrecy in which it is carried out the greater the potential for abuse, even among the most well-intentioned workforce. This is the reason we have internal oversight mechanisms like privacy officers embedded within these intelligence and security agencies.

The DHS privacy office was created by statute, making it one of the most powerful in government. Callahan describes the scope of her work:

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Yet even with the advantages her office held, her concerns for the proper resolution of privacy issues were met with disdain by officials so singularly focused on their anti-terrorism duties that they lost sight of other essential values they are bound to protect. It is one thing to vigorously pursue an important national security mission, but quite another to view constitutional limitations on government as a scheme of the enemy.

An example of an inter-agency struggle Callahan valiantly fought but lost was her attempt to resist amendments to the National Counterterrorism Center’s guidelines proposed by the attorney general and director of national intelligence. These new guidelines, which were implemented in 2012 despite Callahan’s protest, authorized the National Counterterrorism Center to ingest any federal government database wholesale, despite containing personal information of millions of people not suspected of any wrongdoing, if its director determined it might also contain some terrorism-related information. Callahan describes the problem with the intelligence community’s excessive information sharing practices.

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Unfortunately, the unreasonable resistance Callahan faced performing internal oversight was not unique.

Clark Kent Ervin served as the first inspector general at DHS, from January 2003 until December 2004, when his recess appointment expired after the Senate Homeland Security Committee failed to schedule a confirmation hearing. Ervin had been the State Department inspector general the previous year, so he brought that experience plus a firm belief that independent oversight is essential to ensuring the success of Homeland Security’s mission. Ervin talks about the role of oversight in ensure intelligence programs are run within the law and in a way that protects our civil rights and liberties.

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As he wrote in his book, Open Target: Where America is Vulnerable to Attack , Ervin recognized the difficult challenge DHS Secretary Tom Ridge faced in leading a new department cobbled together from existing parts. But he felt his responsibility as inspector general was to assist the DHS mission by ensuring that its programs and operations ran as effectively and efficiently as possible. His audits discovered serious deficiencies in port and aviation security, as well as waste, fraud and abuse in many other DHS programs. Rather than appreciate his identification of these security gaps, Ervin discovered that DHS management saw him as “a traitor and turncoat.”

In their interviews, Callahan and Ervin are both quite gracious in laying the blame on human nature, rather than the government officials who disparaged them. They point out that no one likes being criticized or having someone looking over their shoulder, so while the resistance they met was unfortunate, it was understandable. Instead, their frustration was one of principle — that their colleagues did not recognize the value that oversight measures add to their shared mission of providing the best and most cost effective security possible, while still complying with their legal obligations to protect privacy and civil liberties.

But identifiable weaknesses in human nature can, and should, be addressed through effective leadership. Ervin’s experience at the State Department, where Secretary Colin Powell embraced the inspector general’s role in securing public trust in foreign policy, stood in marked contrast to his experiences at DHS. Similarly, Callahan reported receiving strong support from DHS Secretary Janet Napolitano, which helped her win four of five internal battles she brought to Napolitano for resolution.

The open disdain that Clapper and Brennan display to their congressional overseers sets a poor example for the intelligence workforce. Their contempt for constitutional restraints ensures another generation of internal watchdogs will be maligned, rather than embraced as a necessary corrective to waste, error, and abuse.

For edited transcripts of the interviews of Mary Ellen Callahan and Clark Kent Ervin, click here .