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.
This article appears in the January 25, 2014 edition of National Journal Magazine as Deference Deferred.