Cooperation with Our Allies Recommendation 21

We recommend that with a small number of closely allied governments, meeting specific criteria, the US Government should explore understandings or arrangements regarding intelligence collection guidelines and practices with respect to each others’ citizens (including, if and where appropriate, intentions, strictures, or limitations with respect to collections). The criteria should include:

(1) shared national security objectives;

(2) a close, open, honest, and cooperative relationship between senior-level policy officials; and

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(3) a relationship between intelligence services characterized both by the sharing of intelligence information and analytic thinking and by operational cooperation against critical targets of joint national security concern. Discussions of such understandings or arrangements should be done between relevant intelligence communities, with senior policy-level oversight.

We suggest that the US Government should work with closely allied nations to explore understanding or arrangements regarding intelligence collection guidelines and practices with respect to each others’ citizens. It is important to emphasize that the United States has not entered into formal agreements with other nations not to collect information on each others’

citizens. There are no such formal agreements. With a very small number of governments, however, there are bilateral arrangements or understandings on this issue (which include, in appropriate cases, intentions, strictures, and limitations with respect to collection). These bilateral relationships are based on decades of familiarity, transparency, and past performance between the relevant policy and intelligence communities.

The United States should be willing to explore the possibility of reaching similar arrangements and understandings with a small number of other closely allied governments. Such relationships should be entered into with care and require senior policy-level involvement. We anticipate that only a very few new such relationships are likely in the short to medium term.

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In choosing with which nations to have such discussions, the US Government should have explicit criteria in mind and should share those criteria with interested governments. The criteria should include (1) shared national security policy objectives between the two governments; (2) a close, open, and honest relationship between the policy officials of the two nations; and (3) a close working relationships between the countries’

intelligence services, including the sharing of a broad range of intelligence information; analytic and operational cooperation involving intelligence targets of common interest; and the ability to handle intelligence information with great care.

The US Government has indicated that it is considering disclosing publicly the procedures that the Intelligence Community follows in the handling of foreign intelligence information it collects pertaining to non-US persons. We encourage the Government to make such procedures known.

The individual agencies’ performance in implementing these procedures should be overseen both by the Director of National Intelligence—with regular reports to senior-level policy officials—and by the two Congressional Intelligence Committees.

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Chapter VI

Organizational Reform in Light of Changing Communications Technology

A. Introduction

A central theme of this Report is the importance of achieving multiple goals, including: (1) combating threats to the national security; (2) protecting other national security and foreign policy interests; (3) assuring fundamental rights to privacy; (4) preserving democracy, civil liberties, and the rule of law; (5) supporting a robust, innovative, and free Internet; and (6) protecting strategic relationships. This chapter identifies organizational structures designed to achieve these goals in light of changes in communications technology.

For reasons deeply rooted in the history of the intelligence enterprise, the current organizational structure has been overwhelmingly focused on the goal of combating threats to national security. NSA grew out of signals intelligence efforts during World War II. From then until the end of the Cold War, NSA targeted its efforts on nation states, outside of the US, often in foreign combat zones that were distant from home.

By contrast, our intelligence efforts now target nonstate actors, including terrorist organizations for whom borders are often not an obstacle. As the Section 215 program illustrates, the traditional distinction between foreign and domestic has become less clear. The distinction between military and civilian has also become less clear, now that the same

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communications devices, software, and networks are used both in war zones such as Iraq and Afghanistan and in the rest of the world. Similarly, the distinction between war and non-war is less clear, as the United States stays vigilant against daily cyber security attacks as well as other threats from abroad.

The organizational structure of the Intelligence Community should reflect these changes. Today, communications devices, software, and networks are often “dual-use”—used for both military and civilian purposes. Both military and civilian goals are thus implicated by signals intelligence and surveillance of communications systems. Chapter V addressed the need for a new policy process to oversee sensitive intelligence collections, drawing on multiple federal agencies and multiple national goals. This chapter identifies key organizational changes, including:

• Re-organization of NSA to refocus the agency on its core mission of foreign intelligence;

• Creation of a new Civil Liberties and Privacy Protection Board (CLPP Board) to expand beyond the statutory limits of the existing Privacy and Civil Liberties Oversight Board (PCLOB); and

• Changes to the FISC to create a Public Interest Advocate, increase transparency, and improve the appointment process.

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