The president delivered a speech on changes his administration would support to National Security Agency programs and policies, but what most stood out was not the announced reforms. It was how the speech focused on him and what he had done and how it seemed like he was lecturing Americans who have been outraged by what they have learned about massive government surveillance in the past six months.
President Barack Obama seemed deeply offended that anyone would think he had done an inadequate job or had enabled surveillance state policies.
…I was critical of several practices, such as warrantless wiretaps. And all too often new authorities were instituted without adequate public debate…Some of the worst excesses that emerged after 9/11 were curbed by the time I took office…
…I maintained a healthy skepticism toward our surveillance programs after I became President. I ordered that our programs be reviewed by my national security team and our lawyers, and in some cases I ordered changes in how we did business…
…What I did not do is stop these programs wholesale — not only because I felt that they made us more secure; but also because nothing in that initial review, and nothing that I have learned since, indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens…
…After an extended review of our use of drones in the fight against terrorist networks, I believed a fresh examination of our surveillance programs was a necessary next step in our effort to get off the open ended war-footing that we have maintained since 9/11. For these reasons, I indicated in a speech at the National Defense University last May that we needed a more robust public discussion about the balance between security and liberty. What I did not know at the time is that within weeks of my speech, an avalanche of unauthorized disclosures would spark controversies at home and abroad that have continued to this day… [emphasis added]
Obama’s version of his record as president sharply contrasted the history of support for spying as presented by The New York Times. Obama aides even anonymously told the Times that he had been “surprised to learn after the leaks…just how far the surveillance had gone.” So, it was fraudulent for him to claim to Americans that he was about to bring transparency and promote debate on government surveillance.
The narrative that Obama promoted in the part of his speech building up to announcement of reforms was starkly similar to what NSA director Gen. Keith Alexander has said when addressing members of Congress at hearings held in the aftermath of Snowden’s first disclosures. The narrative he used should make Americans even more skeptical of how substantive the changes to surveillance will be.
President Barack Obama’s historical overview, which he gave in the opening of his speech, described history of America being at war. All of those examples, including the one where Paul Revere was basically held up by the president as the nation’s first NSA analyst, involved needing to spy to know when and where to launch military attacks.
One might remember that just about one year ago Obama gave an inaugural speech after his re-election where he said a “decade of war is now ending” and later described how Americans believe there is no need for “perpetual war.” But the very premise of Obama’s speech involved a demand to recognize the value of militarized surveillance and this militarization keeps the US on a permanent war footing putting civil liberties of Americans at risk so long as this footing is maintained.
What Obama said the NSA consistently follows “protocols designed to protect the privacy of ordinary people” and “they are not abusing authorities in order to listen to your private phone calls, or read your emails,” that was false. The Foreign Intelligence Surveillance Court found in a ruling in 2009, “The minimization procedures proposed by the government in each successive application and approved as binding by the orders of [the FISA Court] have been so frequently and systematically violated that it can fairly be said that this critical element of the overall [business records] regime has never functioned effectively.”
Like Alexander and Director of National Intelligence James Clapper, Obama took shots at journalists who had reported on documents released by Snowden, suggesting what had emerged over the past months consisted of “crude characterizations.” And, adding, “Fortunately, by focusing on facts and specifics rather than speculation and hypotheticals, this review process has given me — and hopefully the American people — some clear direction for change.”
Twenty minutes later, when Obama finally arrived at the part where he outlined the reforms he supports—what he was willing to support to placate civil liberties advocates while at the same time avoiding a “backlash from national security agencies,” Americans would have been forgiven for feeling their president had just scolded them for being concerned about government surveillance run amok. It was abundantly clear that Obama wished he did not have to be there at the Justice Department giving this speech.
So what reforms did he say his administration would support?
Obama announced he had issued and signed a “signals intelligence” directive that would strengthen internal executive branch oversight of “intelligence activities.” He said he supported “greater transparency.” Specifically:
…I am directing the Director of National Intelligence, in consultation with the Attorney General, to annually review — for the purpose of declassification — any future opinions of the Court with broad privacy implications, and to report to me and Congress on these efforts. To ensure that the Court hears a broader range of privacy perspectives, I am calling on Congress to authorize the establishment of a panel of advocates from outside government to provide an independent voice in significant cases before the Foreign Intelligence Surveillance Court…
This reform was couched in extremely disingenuous statements about how the administration has declassified information. All documents declassified by the government since Snowden’s disclosures were not released because Obama voluntarily wanted to give the public access but because the Electronic Frontier Foundation won a lawsuit and a court was going to order the information to be released.
One should be concerned that the Director of National Intelligence will have a very narrow view of what rulings by the FISA court have “broad privacy implications.” Also, while appearing to support a privacy advocate from outside government to argue before the court, he said this voice would be authorized for “significant cases.” What are “significant cases”? Presumably, those will be rare so as not to create the perception that the NSA is acting outside any boundaries.
How will the public know if this advocate is being permitted to defend rights before the secret surveillance court? Will that be disclosed? Will the public get to read his or her arguments?
These questions are important but largely irrelevant when considering the bigger issue. The secret surveillance court should not be deciding whether NSA spying is constitutional or not, a violation of Americans’ privacy or not. That should be decided publicly by courts in the judicial branch.
Obama said he would have the Attorney General and DNI institute “additional restrictions on government’s ability to retain, search, and use in criminal cases, communications between Americans and foreign citizens incidentally collected under Section 702″—a provision of the FISA Amendments Act he voted for as senator before he was elected, which legalized dragnet warrantless surveillance.
He indicated he would support a change to how FBI national security letters—requests for data of persons—are handled but did not adopt judicial review. What he was willing to support is some kind of change that would prohibit attaching an indefinite gag order to them so companies cannot talk about them (which a court had found unconstitutional last year).
Then, he arrived at the part where he addressed the collection of Americans’ phone records by the NSA—the bulk metadata program. He promoted national security state propaganda on how the government would have caught a 9/11 hijacker if this program would have been in place prior to the attacks.
“If a bomb goes off in one of our cities and law enforcement is racing to determine whether a network is poised to conduct additional attacks, time is of the essence. Being able to quickly review telephone connections to assess whether a network exists is critical to that effort,” Obama declared. But, to date, the program has prevented no imminent terrorist attacks. (In fact, being inundated with data may have inhibited the ability of NSA to prevent attacks by failing to understand what data the agency actually had on threats.)
Obama said government would “transition” away from this program:
…[W]e will only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of three. And I have directed the Attorney General to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding, or in a true emergency…
Positive, but he announced another review to come up with alternative approaches before program comes up for reauthorization under the PATRIOT Act on March 28. The intelligence community and Attorney General would be involved.
It appears highly likely that companies may eventually be required or contracted to keep some of this data for longer periods so the NSA can search metadata through requests made to them. Neither the government nor companies should keep the data.
Obama said the US should stop spying on world leaders in allied countries. Up to this point, the US has been rejecting the establishment of a no-spying agreement with Germany, which Chancellor Angela Merkel desires since she learned her phone had been tapped by NSA. He also claimed the US does not spy on ordinary citizens in foreign countries but the millions upon millions of pieces of data collected by NSA from countries, which has been revealed thanks to Snowden, suggests that is simply not true.
Where the speech failed tremendously was in its ignorance of issues that arise from the fact that NSA has weakened encryption. There was no part of the speech that addressed whether criminal defendants have a right to information collected against them during their criminal trials. He said nothing about how agencies are collecting information on targets illegally, arresting them for crimes and then going back and using parallel construction through the use of legally collected evidence to put a case together and prosecute them.
Obama bent over backward to celebrate the intelligence community. NSA whistleblower Kirk Wiebe said at the National Press Club afterward that NSA had been in existence for over sixty years. In that time, it had “blatantly violated its charter, the law, for some 41 years.” These policy recommendations, legal fixes, briefings, yearly reviews, etc, are all “fluff.” What he should do is have a group of IT people—maybe even hackers—come in and access the NSA’s computers and networks to verify that the databases do not contain information that should not be collected.
And, finally, Edward Snowden—President Barack Obama said this just before getting to the reforms we had all been waiting to hear him announce:
Given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or motivations. I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.
Snowden did not merely object to government policy. He objected to government conducting mass surveillance in secret without the consent of Americans. (Obama even said critics “rightly point out that although the telephone bulk collection program was subject to oversight by the Foreign Intelligence Surveillance Court and has been reauthorized repeatedly by Congress it has never been subject to vigorous public debate.”)
There was no recognition in Obama’s speech of the fact that his administration bears responsibility for this situation. If they did not want Snowden to flee the country and take secrets with him to blow the whistle, they should have taken steps to create actual whistleblower protections for employees in national security or intelligence agencies. However, instead of doing that, the administration has embraced witch hunts against leakers and zealous prosecutions, which discourage good government employees from engaging in acts of whistleblowing.