BROOKE GLADSTONE:  On Wednesday, the NSA got a report card. The Intelligence and Communications Technologies Review Group released its 300-page report a month early. White House spokesman Jay Carney explained the decision in a briefing.

  [CLIP]:

JAY CARNEY:  While we had intended to release the Review Group's full report in January, as I said earlier, given inaccurate and incomplete reports in the press about the report's content, we felt it was important to allow people to see the full report to draw their own conclusions.

  [END CLIP]

BROOKE GLADSTONE:  Richard Clarke is a member of that review group, cyber security expert who has advised three presidents. He says that Carney’s concerns were well founded.

RICHARD CLARKE:  Well, let’s see, the New York Times on the front page had a sub head to the effect that the Review Group who was going to recommend the NSA program continue, and our recommendation used the word “terminate.

  [BROOKE LAUGHS]

[LAUGHS]

BROOKE GLADSTONE:  Slate noted how strongly how one of the panel’s proposed changes echoed the decision of Judge Richard Leon earlier this week, that the NSA's collection of telephony  metadata was probably unconstitutional.

RICHARD CLARKE:  Well, we worked without any knowledge of what was going on in that court. It’s not up to us to say things are constitutional or not. We certainly came to the same conclusion as the judge did, in terms of the need for a court order before you access this kind of information. The government initially told us, well, that would be too hard. We looked into it and we  concluded it wouldn’t be hard at all.

BROOKE GLADSTONE:  Why wouldn't it be hard?

RICHARD CLARKE:  The FISA Court has been set up to be extremely responsive in emergency situations, where you can go in and say, look, the Boston bombing just occurred, we need these pieces of information from AT&T, Verizon, Sprint, whoever. And you can usually get a warrant for that information within a few hours, if you have to. And there’s a provision in the law that says you can get the warrant after the fact in an emergency. We, we didn’t see any high burden being placed on law enforcement to have to get a warrant.

BROOKE GLADSTONE:  But isn’t one of the criticisms that the FISA Court has been almost a rubber stamp and basically stepped away from doing any real adjudication?

RICHARD CLARKE:  Well, I know that’s a popular belief. We actually got access to the FISA Court’s classified opinions, and the truth is the FISA Court has been giving NSA a hard time. They actually do a very good job of supervision. We would like to see the FISA Court more diverse in its membership. Right now, 11 of the 12 judges come from one party. And we’d like to see the FISA Court have a professional staff to help it, including a  public advocate.

BROOKE GLADSTONE:  So you're saying it's, it's wrong to assume that the FISA Court has been allowing widespread access to this data? I thought that there were very few cases in which those requests were denied?

RICHARD CLARKE:  There’ve been very few cases in which they’ve been denied. There have been many cases in which they held up requests, sent them back, had them redone. There have been several cases where the FISA Court restricted future operations because NSA had done things in ways that the FISA Court wasn’t happy with. We’d like to see the FISA Court more aggressive, but the fact is behind the veil of secrecy, they have been doing a pretty good job.

BROOKE GLADSTONE:  You also wrote that there’s very little evidence to show that this kind of metadata collection is actually effective. You must have a pretty high clearance, because most of us have no way of knowing whether this approach is effective or not.

RICHARD CLARKE:  Now, there are two different points. One is effective or not, should it be done with a court order, and  should the government hold the data in its own files? The second consideration is has it really done us all that good? And with regard to the metadata on the telephony, we did have very high clearances, we did see all the data. We went through it case by case. We came to the conclusion that it was not necessary in any case where it was used. There was never a case where it stopped a terrorist attack.

BROOKE GLADSTONE:  The report also addresses the issue of national security letters, which are basically subpoenas with gag orders [LAUGHS] attached. We’ve talked about this quite a lot. You’ve suggested some changes in that area.

RICHARD CLARKE:  Pretty radical changes, according to some people. What we’ve suggested is, again, that you should go to the FISA Court and get a court order. Now, I know that would be difficult because there are 20,000 of these orders every year. But all that means in, in our view is that you need more judges. The way it works today is an FBI supervisor can sign off on a national security letter, and without any outside review, they get the power of subpoena and the power then to gag the person that they’ve subpoenaed.

So if they come to you at NPR and say, we want all your records, you can’t tell anybody that. We found both of those parts of the national security letter a little difficult to square with constitutionality. We think they should probably go to the FISA Court and the assumption should be that there is no gag order. We know there will be some cases with foreign counter-intelligence operations where you’ll never be able to tell people about it, but they shouldn’t all have a perpetual gag order.

BROOKE GLADSTONE:  What surprised you most about the reactions to your report, both on Capitol Hill and in the media?

RICHARD CLARKE:  We got two kinds of reactions. The Review Group recommends everything staying the same, and the Review Group surprised everyone by being very radical in its recommendation.

There was one blog that, that was entitled, “Awkward.”

 [BROOKE LAUGHS]

That this report is going to be really awkward for the President. Actually, you know, I read that after meeting with the President, and the President was very pleased [LAUGHS] –

  [BROOKE LAUGHS]

- by the report. But I, I understand why people think it’s awkward for the President, because we’re recommending some things that he has in the past rejected. But I think we’re, we’re hopeful that we’ve made a persuasive case.

BROOKE GLADSTONE:  After spending so many years in government, you really think that there'll be a change?

RICHARD CLARKE:  I do. Look, government is not implacable. And when you have a, a leader like Barack Obama who is open minded and who has the guts to bring in a group of outsiders like us and say, tell me what you think we should do and don’t hold back, then I think change is possible.

BROOKE GLADSTONE:  And so, there is bipartisan support for doing something about this.

RICHARD CLARKE:  There’s a lot of bipartisan support, and that’s utterly amazing because there’s not bipartisan support for anything else right now.

BROOKE GLADSTONE:  [LAUGHS] Richard, thank you very much.

RICHARD CLARKE:  Always a pleasure.

BROOKE GLADSTONE:  Richard Clarke is a member of the Intelligence and Communications Technologies Review Group.