Congress to Obama: No, YOU Solve the NSA Problem!

The president passes the buck. But the agency’s Hill defenders say he should take the lead.

Civil liberties activists hold a rally against surveillance of US citizens as US President Barack Obama is expected to announce reforms of the National Security Agency (NSA) at the Justice Department in Washington on January 17, 2014.
National Journal
Michael Hirsh
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Michael Hirsh
Jan. 23, 2014, 4 p.m.

As he’s done ump­teen times be­fore, Pres­id­ent Obama is kick­ing an im­port­ant is­sue over to Con­gress. The last time, it was wheth­er to bomb Syr­ia. Now it’s about how the Na­tion­al Se­cur­ity Agency should con­duct sur­veil­lance and un­der what rules. The NSA’s sup­port­ers on Cap­it­ol Hill are not happy.

In his speech last week in sup­port of most NSA pro­grams, Obama left open such crit­ic­al is­sues as how the NSA should col­lect tele­phone metadata — per­haps the most con­tro­ver­sial part of its sur­veil­lance pro­gram — say­ing the two solu­tions pro­posed by his own spe­cial task force last month were prob­lem­at­ic. He asked At­tor­ney Gen­er­al Eric Hold­er and the in­tel­li­gence com­munity to “re­port back to me with op­tions for al­tern­at­ive ap­proaches.” Obama ad­ded, “I will con­sult with the rel­ev­ant com­mit­tees in Con­gress to seek their views and then seek con­gres­sion­al au­thor­iz­a­tion for the new pro­gram as needed.” He also said he has “taken the un­pre­ced­en­ted step of ex­tend­ing cer­tain pro­tec­tions that we have for the Amer­ic­an people to people over­seas.”

Rep. Mike Ro­gers, chair­man of the House In­tel­li­gence Com­mit­tee, com­men­ded the pres­id­ent for his speech but wor­ried that it won’t do enough to quell “ef­forts of some to cur­tail im­port­ant pro­grams, be­cause so much of the pub­lic dis­course has been based on mis­lead­ing, in­com­plete, or wrong facts.” Ro­gers tells Na­tion­al Journ­al that he and oth­er NSA sup­port­ers would have to fill the in­form­a­tion gap them­selves: “I will con­tin­ue to pur­sue all av­en­ues to cor­rect the re­cord and high- light that these pro­grams are leg­al, lim­ited, and fully over­seen.”

Some seni­or con­gres­sion­al staffers in­volved in the battle to pre­serve the NSA’s sur­veil­lance cap­ab­il­it­ies are more forth­right, say­ing Obama failed to in­sist on spe­cif­ic changes, leav­ing that task to yet an­oth­er re­view nearly eight months after Ed­ward Snowden first leaked NSA secrets. “The com­mand­er in chief needed to lead. By re­fus­ing to do so, he has al­lowed this cloud to hang over the in­tel­li­gence com­munity. All he’s done is to ask for the at­tor­ney gen­er­al and the [dir­ect­or of na­tion­al in­tel­li­gence] to re­view the re­view,” said a seni­or con­gres­sion­al aide privy to the in­tel­li­gence re­view.

The res­ult is that no mat­ter how much Obama wants to pro­tect NSA pro­grams — al­most all of which he wants to re­tain — he may well be toss­ing the fu­ture of “sigint,” or sig­nals in­tel­li­gence, in­to the arms of a gen­er­ally hos­tile Con­gress that is sub­ject to grow­ing pres­sure from the pub­lic. Ac­cord­ing to the latest Pew Re­search Cen­ter/USA Today poll, for the first time a ma­jor­ity of Amer­ic­ans (53 per­cent) dis­ap­prove of the gov­ern­ment’s bulk col­lec­tion of In­ter­net and tele­phone meta- data, while 40 per­cent ap­prove. Just as sig­ni­fic­ant, most said they either hadn’t heard or wer­en’t swayed by the pres­id­ent’s ex­tens­ive speech mak­ing the case for NSA sur­veil­lance. A huge 73 per­cent said they ex­pec­ted the re­forms to make little dif­fer­ence to pri­vacy.

Those trends, plus the grow­ing strength of lib­er­al and liber­tari­an law­makers who want deep­er changes than Obama out­lined, leave an up­hill climb for NSA de­fend­ers in Con­gress. They and some coun­terter­ror­ism ex­perts fear that Con­gress will be dra­gooned in­to cur­tail­ing more pro­grams than is safe. Ac­cord­ing to one of Ro­gers’s staffers: “The chair­man is con­cerned that some will char­ac­ter­ize their pro­posed changes as pre­serving the pro­gram, when in fact they would ef­fect­ively gut the pro­gram or make it so slow that it is fun­da­ment­ally a dif­fer­ent tool.” Former NSA Dir­ect­or Mi­chael Hay­den, say­ing “the dev­il is in the de­tails,” wor­ries that Obama has already pledged too much in pro­tect­ing for­eign­ers the same way Amer­ic­ans are pro­tec­ted. “Des­pite some of the scare stor­ies, the NSA’s an in­cred­ibly con­ser­vat­ive or­gan­iz­a­tion. If you start telling them, ‘You’ve got to pro­tect the pri­vacy of non-U.S. per­sons,’ they’re go­ing to over­achieve,” Hay­den says.

But that ap­pears to be what Obama wants, with Con­gress provid­ing the pre­cise rules. “Those pro­tec­tions will in­clude the dur­a­tion that we can hold per­son­al in­form­a­tion for people over­seas — for non-U.S. per­sons over­seas, for in­stance — and also re­stric­tions on the use of this in­form­a­tion; again, to bring our prac­tices, with re­spect to non-U.S. per­sons over­seas, in line with the pro­tec­tions that we have for U.S. per­sons,” a seni­or ad­min­is­tra­tion of­fi­cial told re­port­ers.

Obama also out­lined gen­er­al rules by which the For­eign In­tel­li­gence Sur­veil­lance Court must bless the NSA’s every query, adding hugely to the agency’s ad­min­is­trat­ive bur­den even though it stretches com­mon sense to think the judge will al­ways be com­pet­ent to make these judg­ments. Some crit­ics sug­gest that will set the leg­al stand­ard for go­ing after ter­ror­ists even high­er than it cur­rently is in the U.S. leg­al sys­tem for pur­su­ing crim­in­als. “The only thing you have typ­ic­ally is, say, a phone in Ye­men af­fil­i­ated with al- Qaida,” Hay­den says. “My ques­tion is, why are you ask­ing the judge wheth­er it’s OK to pur­sue that? He doesn’t know.”

Obama also poin­ted out big prob­lems with his task force’s re­com­mend­a­tion to re­move metadata from the NSA’s con­trol, and to either al­low the tele­phone com­pan­ies to keep the data them­selves or to cre­ate a “third party” that could do so. “Re­ly­ing solely on the re­cords of mul­tiple pro­viders, for ex­ample, could re­quire com­pan­ies to al­ter their pro­ced­ures in ways that raise new pri­vacy con­cerns,” the pres­id­ent said. “On the oth­er hand, any third party main­tain­ing a single, con­sol­id­ated data­base would be car­ry­ing out what is es­sen­tially a gov­ern­ment func­tion but with more ex­pense, more leg­al am­bi­gu­ity, po­ten­tially less ac­count­ab­il­ity — all of which would have a doubt­ful im­pact on in­creas­ing pub­lic con­fid­ence that their pri­vacy is be­ing pro­tec­ted.”

And yet, crit­ics say, the pres­id­ent failed to pro­pose a new course bey­ond those three op­tions. “I wish he’d send over a buck­et of pix­ie dust to make the fourth op­tion ap­pear, be­cause I don’t know what it is,” said the con­gres­sion­al aide. 

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