If You Want Obama to Rein In the NSA, You’re About to Be Disappointed

The president will embrace some surveillance reforms, but he’s not about to scale back the national security state.

President Obama speaks as he is joined by representatives and community members from San Antonio, Philadelphia, Los Angeles, Southeastern Kentucky, and the Choctaw Nation of Oklahoma during an East Room event January 9, 2014 at the White House in Washington, DC. President Obama announced the five areas as his administration's first five 'Promise Zones' to help the local communities to combat poverty.
National Journal
James Oliphant
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James Oliphant
Jan. 14, 2014, midnight

Pres­id­ent Obama has a rare op­por­tun­ity this week to re­shape the na­tion’s coun­terter­ror­ism strategy. He won’t take it.

The White House has been try­ing to lower ex­pect­a­tions for the pres­id­ent’s planned Fri­day speech for days now. He’ll out­line a series of re­forms to the Na­tion­al Se­cur­ity Agency’s sur­veil­lance pro­grams in an ad­dress at the Justice De­part­ment, but Obama will do noth­ing to di­min­ish the gov­ern­ment’s ca­pa­city to root out ter­ror net­works, aides say.

Ever since the flood of dis­clos­ures re­gard­ing the NSA from former con­tract­or Ed­ward Snowden, Obama and his team have tried to walk a care­ful pub­lic line: ap­pear­ing to cher­ish Amer­ic­ans’ pri­vacy while de­fend­ing the agency’s ac­tions, par­tic­u­larly the bulk col­lec­tion of tele­phone re­cords, the so-called “metadata.”

But it’s been evid­ent all along that the White House has more or less been dragged in­to the re­form de­bate. At a press con­fer­ence back in Au­gust, for ex­ample, the pres­id­ent main­tained, amid heavy cri­ti­cism, that the pro­grams are valu­able and that a pub­lic skep­tic­al about their reach simply needs re­as­sur­ance that they won’t be ab­used.

That’s still Obama’s view. And in the days lead­ing to Fri­day’s speech, Jay Car­ney and oth­ers in the White House have re­ferred to the is­sue as one of trans­par­ency and dis­clos­ure, not of rein­ing in gov­ern­ment power. “The pres­id­ent has been clear throughout this re­view pro­cess that we will not harm our na­tion­al se­cur­ity or our abil­ity to face glob­al threats,” Obama’s press sec­ret­ary said last week. “And our in­tel­li­gence-gath­er­ing activ­it­ies are dir­ectly re­lated to our abil­ity to face those glob­al threats and pro­tect our na­tion­al se­cur­ity.”

To lay the ground­work for that po­s­i­tion, aides to the pres­id­ent told the Los Angeles Times this week­end that the NSA’s metadata col­lec­tion scheme could have pre­ven­ted the Sept. 11 at­tacks. What’s more, Obama has ad­op­ted that “9/11 jus­ti­fic­a­tion” for the NSA pro­gram, the pa­per re­por­ted.

That’s a blink­ing-red sig­nal that the ad­min­is­tra­tion is not about to be ac­cused of mak­ing the coun­try more vul­ner­able by tam­per­ing with such a pre­vent­ive weapon. Re­mem­ber that George W. Bush, a Re­pub­lic­an, walked back his war­rant­less wiretap­ping pro­gram in 2007 after a pub­lic out­cry. This pres­id­ent, a Demo­crat, isn’t go­ing to fol­low suit — es­pe­cially giv­en the new in­stabil­ity in Ir­aq and wor­ries about the va­cu­um left by the com­ing pul­lout from Afgh­anistan.

All of which means Fri­day’s speech is go­ing to be a piece of ka­buki theat­er: The pres­id­ent is go­ing to have to look like he’s tak­ing mean­ing­ful ac­tion to curb the NSA’s reach when he really isn’t. To that end, Obama is ex­pec­ted to tweak the bulk data pro­gram rather than over­haul it or, as civil liber­tari­ans de­mand, junk it out­right.

One such tweak could in­volve ask­ing tele­com pro­viders to house the call­ing data rather than the gov­ern­ment. An­oth­er could in­volve the ap­point­ment of a so-called “pub­lic ad­voc­ate” to ar­gue against the ad­min­is­tra­tion in the For­eign In­tel­li­gence Sur­veil­lance Court, which over­sees the mon­it­or­ing of sus­pec­ted for­eign agents.

Changes such as those, however, will be purely “cos­met­ic,” ar­gues Jonath­an Tur­ley, an ex­pert on na­tion­al se­cur­ity law at George Wash­ing­ton Uni­versity.

That’s es­pe­cially true if Obama re­fuses to re­quire ju­di­cial ap­prov­al for all in­di­vidu­al data­base searches. (Cur­rently, for a search to be au­thor­ized, ana­lysts at the NSA can cer­ti­fy a “reas­on­able sus­pi­cion” ex­ists that a sus­pect has ties to a ter­ror net­work un­der a blanket au­thor­iz­a­tion from the FISA court.)

That means simply shift­ing the data from the agency to a pro­vider like Ve­r­i­zon won’t deny the NSA ac­cess to it at any giv­en mo­ment; the pro­vider would have to com­ply with any re­quest. Both cur­rent and former coun­terter­ror­ism of­fi­cials have come out against the ju­di­cial ap­prov­al pro­pos­al, and Obama has evinced a pat­tern of de­fer­ring to his na­tion­al se­cur­ity ex­perts.

Any re­forms Obama ul­ti­mately em­braces likely will come from the re­port re­leased last month by a hand-picked re­view pan­el, a group Tur­ley dis­misses as “in­tel­li­gence hawks and Obama loy­al­ists.” One mem­ber of the pan­el is Mi­chael Mo­rell, the former act­ing Cent­ral In­tel­li­gence Agency dir­ect­or — and all five mem­bers are ex­pec­ted to testi­fy be­fore a Sen­ate com­mit­tee Tues­day.

Geof­frey Stone, a mem­ber of the re­view pan­el and a law pro­fess­or at the Uni­versity of Chica­go, con­tends that even the re­l­at­ively small pro­pos­al to trans­fer the call­ing-re­cord data­base to private pro­viders would show Obama is mind­ful of the pro­gram’s po­ten­tial for ab­use. “The gov­ern­ment would not be in a po­s­i­tion to be able to mis­use the data,” says Stone, who was a col­league of Obama’s when he taught at the school.

But Stone, too, wants the pres­id­ent to ad­opt the pan­el’s re­com­mend­a­tion that court ap­prov­al be ob­tained be­fore the metadata can be searched. The pan­el, he says, sees the data col­lec­tion pro­gram “as a po­ten­tially use­ful tool, if it’s sub­jec­ted to really rig­or­ous safe­guards and is used only in the way that’s ap­proved” — which, Stone con­cedes, is a rather large caveat.

Stone’s view of the pro­gram be­ing only “po­ten­tially use­ful” un­der­girds a find­ing by the pan­el as a whole that the data-col­lec­tion scheme “was not es­sen­tial to pre­vent­ing at­tacks” and that the in­form­a­tion “could read­ily have been ob­tained in a timely man­ner us­ing con­ven­tion­al [court] or­ders.” On Monday, the New Amer­ica Found­a­tion re­leased an ana­lys­is of 225 ter­ror­ism cases, con­clud­ing that the pro­gram “has had no dis­cern­ible im­pact on pre­vent­ing acts of ter­ror­ism.”

And that’s the real con­text for what Obama will say Fri­day. He’ll have to jus­ti­fy the use of such data when there is little to no evid­ence that it has ever played a sig­ni­fic­ant role in stop­ping a plot. He’ll have to sig­nal that he’s taken the ob­jec­tions of nervous cit­izens, pri­vacy ad­voc­ates, mem­bers of Con­gress, and the tele­com in­dustry ser­i­ously, even as he re­fuses to scale back the pro­gram.

But like the White House, Stone is of the mind­set that if a large-scale at­tack can be pre­ven­ted someday by us­ing the data-col­lec­tion pro­gram, then the tradeoff in civil liber­ties is worth it. “If it stops that once a dec­ade, it’s a big deal,” Stone says.

It’s a ra­tionale that the pres­id­ent him­self is likely to of­fer in some form Fri­day. He’s not about to be the man who walked back the War on Ter­ror.

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