The opening sentence of a report from the New York Times on reforms President Barack Obama is considering suggests that he is assembling a “plan to overhaul the nation’s surveillance programs.”
On December 31, Daniel Klaidman wrote a dazzling piece of fan fiction on how Obama’s “defining fight” in 2014 will be how he takes on the surveillance state.
In the aftermath of revelations from documents disclosed by NSA whistleblower Edward Snowden, there are multiple hints that suggest certain surveillance powers will not be constrained or ended.
First, after participating in a meeting with Obama yesterday, this was what Sen. Ron Wyden, a senator who has been championing significant reforms, said:
The debate is clearly fluid,” senator Ron Wyden of Oregon, a longtime critic of bulk surveillance, told the Guardian after the meeting. “My sense is the president, and the administration, is wrestling with these issues…
What I’d say to Americans is that the future of these programs is being determined now. For those like me, who believe that security and liberty are not mutually exclusive, this is the time to weigh in.
Wyden, Sen. Mark Udall, another senator who has been fighting for checks against surveillance powers who also attended the Thursday meeting with Obama, and Sen. Martin Heinrich sent a letter to the president a day after the meeting urging him to adopt recommendations in a report from the NSA Review Group.
The letter encouraged the president to support “termination” of the storage of bulk telephone data and to “transition to a system in which phone companies provide specific customers’ records to the government only when the government has a demonstrated need and an appropriate court order or emergency authorization.”
It further suggested the president support a probable cause requirement for searching the contents of communications collected under a section of the FISA Amendments Act (which Obama voted for in 2008 when he was a senator) and to close a loophole that allows for “backdoor searches” of Americans’ communications. Also, the senators recommended Obama support a “Public Interest Advocate” who could represent “privacy interests” before the country’s secret surveillance court.
Maybe this letter was sent to reinforce a position of support already taken by the president, but this letter would seem to suggest that these are critical measures Obama does not support.
Rep. James Sensenbrenner, who is the co-author of the USA Freedom Act which contains some reasonable reforms to NSA programs, said after he left the meeting with Obama he was not so sure the president thinks we need legislation to reform the NSA.
Sen. Saxby Chambliss, an NSA defender who attended the meeting with Obama, said afterward, “The president made it clear today that he understands the value of the metadata collection programs. He also made clear that some changes should be made to create trust in the program by making them more transparent to the American people. He was in a listening mode today, and we had a very good discussion about the way forward on the NSA programs.”
It is unlikely Chambliss would have expressed this view if Obama was planning on ending the bulk data collection program. Perhaps, he has become convinced it is the least-worst option and will defend it on Friday in a manner not dissimilar to how he has defended his administration’s use of drones to target and assassinate alleged terror suspects.
Another reason to doubt that the White House is planning anything remotely close to an “overhaul” is the fact that, according to David Nakamura, the White House is tired of being preoccupied with the issue of NSA surveillance. They are eager to “move past the NSA controversy”—so eager Obama almost delivered a speech on NSA reforms before his own NSA review group presented their recommendations on what should be reformed.
Even though Obama claimed in June, “I welcome this debate,” the truth is this was never the case. The administration fought in the courts against the very information that has fueled debate. This has all been an awfully distressing distraction to the administration.
Additionally, there’s former CIA deputy director Mike Morell, who the president picked to lead his review group (which was placed under the supervision of Director of National Intelligence James Clapper). Morell has been concerned that people misinterpreted the review report the group put out.
It is “incorrect,” he said, that the report was “sweeping” and called for a “roll back” of capabilities. The report did not call for an end to the bulk data collection program. While it found the program had not been “essential to preventing attacks,” that did not also mean it was “not important to national security.” (Figure that one out.)
“Personally, I would expand the Section 215 program to include all telephone metadata (the program covers only a subset of the total calls made) as well as e-mail metadata (which is not in the program) to better protect the United States. This is a personal view; it is not something the review group opined on or even discussed. Such an expansion should, of course, fall under the same constraints recommended by the review group,” Morell shared.
Moreover, as much as the report was interpreted as a potential catalyst for substantial changes with NSA programs or policies, Morell contended it was part of a larger process. The group “did not have the time nor the expertise to think through all the implications of each recommendation.” Essentially, he can still do whatever he pleases and with all of the intelligence agencies’ criticisms of the report in mind.
And, recently, FBI director James Comey has made public statements against the review group’s recommendation to impose more checks on national security letters (NSLs) used to get financial/subscriber data. NSA deputy director John Inglis, who is retiring Friday, did a wide-ranging interview for NPR.
Inglis expressed this view:
…I’ve long since reconciled myself to the way that balance is achieved. I’m not sure that if you’re not in the government you would think about that. Right, you might just think about the dynamic of I’m trying to sell services to a world population, not simply the United States. And I’d like that world population to imagine that these are safe from kind of any intrusions whatsoever.
Transforming the world into a massive surveillance state is a benevolent act to Inglis and other intelligence agency leaders. They do not question what has happened in the past decade. And, while they claim to be receptive to the ensuing policy discussion now, they view the debate as part of explaining to Americans how things work and why the NSA should be trusted. It is not a facet of enabling reforms because there is nothing they think needs to be changed.
The Wall Street Journal’s Siobhan Gorman reports Obama may endorse extending protections under the Privacy Act of 1974 to non-US citizens, creating privacy advocate who would argue before the secret surveillance court and some kind of adjustment to bulk data collection. But that does not require an end to any policy or program.
Overall, there are very few hints that Obama is going to put the NSA through an “overhaul.” Claims that this is happening from any officials in national security agencies will likely be exaggerations, perhaps, to ensure the reforms do not go any further in constraining the agency’s power.
This is the chief concern of four NSA whistleblowers who have made their own unsolicited but well-founded recommendations, which they tried to communicate to the president.
That does not mean a climate where certain NSA surveillance policies or programs are ended is impossible. Tech companies, privacy groups and increasing number of Americans following this debate want Obama to take meaningful action. However, evidence suggests he still finds the predominant positions of officials in national security agencies to be much more credible and valid.