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Panel looking into NSA programs has close ties to White House

| Monday, Sept. 23, 2013, 12:01 a.m.

WASHINGTON — Stung by public unease about the details of spying by the National Security Agency, President Obama selected a panel of advisers to scrutinize the NSA's surveillance programs to be sure they weren't violating civil liberties and to restore Americans' trust.

But with just weeks remaining before its first deadline to report to the White House, the review panel has effectively been operating as an arm of the Office of the Director of National Intelligence — which oversees the NSA and all other American spy efforts.

The panel's advisers work in offices on loan from the DNI. Interview requests and statements from the review panel to the media are carefully coordinated through the DNI's press office. James Clapper, the intelligence director, exempted the panel from rules that require federal committees to conduct their business and their meetings in ways the public can observe. Its final report, when it's issued, will be submitted for White House approval before the public can read it.

Even the panel's official name suggests it is run by Clapper's office: Director of National Intelligence Review Group on Intelligence and Communications Technologies.

“No one can look at this group and say it's completely independent,” said Sascha Meinrath, director of the Open Technology Institute and vice president at the New America Foundation. Meinrath, who attended one of the meetings, said the closed-door gatherings “leave the public out of the loop.”

Obama described the panel in an Aug. 9 speech as an “independent group” and said its members would “consider how we can maintain the trust of the people, how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used.”

But the formal White House memorandum days later — effectively the legal charter for the group — does not specify anything about the panel being independent of the Obama administration. The memorandum directed the panel to emphasize in its review whether spying programs protect national security, advance foreign policy and are protected against the types of leaks that started the national debate.

The final consideration in the White House memo told the panel to examine “our need to maintain the public trust.” There was no mention of the panel investigating surveillance abuses.

The review panel, in a statement released through the DNI's press office, confirmed that Clapper had exempted it from the Federal Advisory Committee Act, which requires such committees to conduct open meetings and notify the public about their activities. It said Clapper made the decision because of the “highly classified nature of their review.”

But several attendees of the private meetings have said that their discussions did not mention any classified activities and that the panel members steered them away from doing so.

Four of the panel members previously worked for Democratic administrations: Peter Swire, former Office of Management and Budget privacy director under President Bill Clinton; Michael Morell, Obama's former deputy CIA director; Richard Clarke, former counterterrorism coordinator under Clinton and President George W. Bush; and Cass Sunstein, Obama's former regulatory czar. A fifth panel member, Geoffrey Stone of the University of Chicago, leads a university committee looking to build Obama's presidential library in Chicago and was an informal adviser to Obama's 2008 presidential campaign.

“We would have liked a more diverse group,” said Michelle Richardson, an ACLU legislative counsel who attended one meeting for civil liberties groups.

Participants in a session held for the technology industry included lawyers and other figures from Google, Microsoft, Yahoo, Facebook and Apple — firms that reportedly have worked with the NSA in surveillance operations. No phone company executives attended, participants said. Technology executives pressed for more authority to tell computer users their private data is not being abused by the government, said Robert Atkinson, president of the Information Technology and Innovation Foundation.

According to participants, there was no indication that policy changes were under consideration.

“Any time someone brought up what was at the heart of these issues,” Meinrath said, “we were told to put that into record on the website, or else we were told it was classified.”

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