The Debate Obama Never Wanted

In the NSA math, two additions plus one abuse equals a defensive president.

The man who leaked highly classified information about government data-gathering efforts is 29-year-old Edward Snowden, seen here in a screenshot of an interview with The Guardian, which published his leaks along with The Washington Post.
National Journal
Major Garrett
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Major Garrett
Aug. 13, 2013, 3:30 p.m.

Ed­ward Snowden has put words in Pres­id­ent Obama’s mouth. Words like trans­par­ency, re­form, open­ness, and de­bate.

This is not ne­ces­sar­ily cause for cel­eb­ra­tion or con­dem­na­tion. It is, however, a fact. That the White House re­fuses to ac­know­ledge this is test­a­ment to the policy-al­ter­ing ef­fect of Snowden’s leaks of clas­si­fied doc­u­ments about the Na­tion­al Se­cur­ity Agency’s wide-ran­ging In­ter­net and phone sur­veil­lance pro­grams.

In the East Room on Fri­day, Obama said he al­ways wanted what he is now awk­wardly jug­gling — a na­tion­al de­bate on coun­terter­ror­ism sur­veil­lance. This is demon­strably false. Obama did not want this de­bate, and he has been forced in­to nu­mer­ous lin­guist­ic con­tor­tions in avoid­ing it. He did not want a de­bate that forced him to em­brace a re­view pan­el to ex­am­ine his ad­min­is­tra­tion’s coun­ter­sur­veil­lance prac­tices and to call for a pri­vacy and civil-liber­ties ad­voc­ate be­fore the secret For­eign In­tel­li­gence Sur­veil­lance Court that ap­proves sur­veil­lance war­rants. On Fri­day, Obama sought to lim­it the fe­ro­city of the de­bate by as­sert­ing his role as calm, con­sti­tu­tion­al ar­bit­er of ex­ec­ut­ive power and re­form. “I be­lieve that there are steps we can take to give the Amer­ic­an people ad­di­tion­al con­fid­ence that there are ad­di­tion­al safe­guards against ab­use,” he said.

Obama au­thor­ized more sur­veil­lance than Pres­id­ent George W. Bush in part be­cause tech­no­logy and threat matrices con­vinced him it was ne­ces­sary. For two months since Snowden’s leaks, Obama has been hes­it­ant to en­gage in de­bate and call for re­forms, in part be­cause he was wait­ing for the Justice De­part­ment and in­tel­li­gence com­munity to cough up in­form­a­tion ex­plain­ing what the NSA was do­ing and its leg­al au­thor­ity. Obama re­leased much of that on Fri­day. It was a de­fens­ive move de­signed to prove he hasn’t ab­used powers and that the sur­veil­lance has defined and de­fens­ible lim­its. That as­ser­tion was un­der­cut by ad­di­tion­al — there is that word again — re­port­ing about the NSA’s pre­vi­ously un­known au­thor­ity to cull data about Amer­ic­ans in the gen­er­al neigh­bor­hood, elec­tron­ic­ally speak­ing, of sus­pec­ted ter­ror­ist com­mu­nic­a­tions. All of this has raised, des­pite Obama’s re­as­sur­ances, con­cern about the real-time hol­low­ing out of Fourth Amend­ment pro­tec­tions.

Back to the de­bate Obama says he wanted. What Obama al­ludes to is a puny ref­er­ence in his May 23 speech at the Na­tion­al De­fense Uni­versity on the new con­tours of the war on ter­ror. In that speech, Obama said many meaty and pro­voc­at­ive things — among them that the war on ter­ror had to even­tu­ally end in name and deed; that he uses drones ag­gress­ively and leth­ally and would con­tin­ue to do so, even against Amer­ic­ans; that he would work with Con­gress to re­write the 2001 Au­thor­iz­a­tion for Use of Mil­it­ary Force (the in­creas­ingly tattered leg­al um­brella cov­er­ing all an­ti­ter­ror­ism activ­it­ies now); and that he would speed up re­leases at the Guantanamo Bay mil­it­ary pris­on and re­new ef­forts to close it. The speech was by far the meat­i­est of his second term and a road map for his ad­min­is­tra­tion, and quite prob­ably, his suc­cessor’s, on how to deal with the mil­it­ary, leg­al, and polit­ic­al com­plex­it­ies of pro­sec­ut­ing a war that in­creas­ingly re­lies on shad­owy weapons of war — drones and sur­veil­lance — and less on troops and for­ward-op­er­at­ing bases. But all Obama had to say on the top­ic of sur­veil­lance was this piece of dan­deli­on fuzz:

“In the years to come, we will have to keep work­ing hard to strike the ap­pro­pri­ate bal­ance between our need for se­cur­ity and pre­serving those freedoms that make us who we are. That means re­view­ing the au­thor­it­ies of law en­force­ment, so we can in­ter­cept new types of com­mu­nic­a­tion, but also build in pri­vacy pro­tec­tions to pre­vent ab­use.”

The key phrases here: “years to come”; “in­ter­cept new types of com­mu­nic­a­tion”; and “pri­vacy pro­tec­tions to pre­vent ab­use.”

Obama fully em­braced the status quo in coun­terter­ror­ism sur­veil­lance, mean­ing all the pro­grams Snowden was about to dis­close, and called for a de­bate in some dis­tant fu­ture about more au­thor­it­ies to in­ter­cept “new types” of com­mu­nic­a­tion out­side of tele­phone and In­ter­net data. Any fair read­ing of this sur­veil­lance-speech wid­get shows that it poin­ted to ex­pand­ing the leg­al re­gime un­der which ex­ist­ing — but un­known — sur­veil­lance was already tak­ing place.

The throwaway line “also build in pri­vacy pro­tec­tions to pre­vent ab­use” equates the po­ten­tial for wrong­do­ing only with new gov­ern­ment powers more broad than cur­rently ex­ist, as­sert­ing no ab­uses have or will oc­cur un­der ex­ist­ing sur­veil­lance schemes.

This is not kick­ing off a de­bate on do­mest­ic sur­veil­lance. It is kick­ing the can down the road of more sur­veil­lance that ad­apts to grow­ing gov­ern­ment­al cap­ab­il­it­ies to gath­er, sift, and ana­lyze data in coun­terter­ror­ism op­er­a­tions. Obama’s own words in the Na­tion­al De­fense Uni­versity speech re­veal per­fectly his pre-Snowden mind­set on coun­terter­ror­ism sur­veil­lance ma­chinery. It is vast. It works. It grows as the volume of data grows. I need it and will need to ex­pand it.

That truth is also found in Obama’s his­tory of ant­ag­on­ism to­ward con­gres­sion­al curi­os­ity about the sur­veil­lance pro­grams and in leg­al briefs in de­fense of data col­lec­tion that were already be­ing chal­lenged be­fore Snowden’s rev­el­a­tions.

Obama is not the first pres­id­ent se­duced by the vast mar­tial powers of com­mand­er in chief, and he won’t be the last. There is noth­ing con­dem­nable in the ap­plic­a­tion of pres­id­en­tial power to meet a per­ceived or known threat, es­pe­cially when, as with com­puter-sur­veil­lance op­er­a­tions, the tech­niques and tech­no­lo­gies ad­vance rap­idly and the depth and breadth of search­able data ex­pands ex­po­nen­tially. It is not naïve to as­sert that the coun­terter­ror­ism-sur­veil­lance tread­mill spins at max­im­um speed and no pres­id­ent, not even a self-avowed sur­veil­lance skep­tic like Obama, can keep pace.

Snowden’s clas­si­fied leaks sought to knock Obama off the tread­mill and, if pos­sible, slow the data col­lec­tion down. He leaked clas­si­fied doc­u­ments and must face the leg­al con­sequences. Words like pat­ri­ot, trait­or, and de­fect­or are now ban­died about to define Snowden. A court of law will de­cide if he’s a crim­in­al. In­di­vidu­al Amer­ic­ans, as they al­ways have, will de­term­ine if he’s a pat­ri­ot.

Those closest to Obama say he feels burned by Snowden’s leaks be­cause Obama has con­vinced him­self he ad­ded civil-liber­ties pro­tec­tions as he au­thor­ized more-ag­gress­ive sur­veil­lance data col­lec­tion. Obama is irked that Snowden didn’t use the pres­id­ent’s own ex­ec­ut­ive or­der giv­ing a whistle-blower power to pe­ti­tion au­thor­it­ies. Obama’s cent­ral con­ceit, chal­lenged by Snowden, was that he had im­proved sur­veil­lance, ad­ded pri­vacy pro­tec­tions, and kept the coun­try safe. What pres­id­ent wouldn’t want to pro­tect that leg­acy and en­large it on his terms?

Snowden’s leaks have forced Obama to de­fend his pro­grams in the clam­or­ous pub­lic square, where polit­ics runs rampant, op­pon­ents strike poses, and where “com­plex” de­tails can be con­fused, mis­in­ter­preted, or ig­nored.

Obama did not seek this de­bate. He does not par­tic­u­larly en­joy this de­bate. He’s grop­ing for words to pro­tect a sur­veil­lance re­gime many in his polit­ic­al base find re­pug­nant and that is un­der in­creas­ing leg­al as­sault.

The de­bate is very much alive and Obama is a re­luct­ant par­ti­cipant. He’s try­ing to out­man­euver crit­ics who find more trac­tion with each new dis­clos­ure. The pres­id­ent is try­ing to get ahead of that pro­cess by call­ing for trans­par­ency and hav­ing a re­view board of­fer re­com­mend­a­tions while Snowden’s new leaks are likely to keep sur­fa­cing. Obama is now in a cam­paign to pro­tect a sur­veil­lance ar­chi­tec­ture he be­lieves works — even if it raises alarms among civil liber­tari­ans on the right and left. He will have to ex­plain his ra­tionale for the sur­veil­lance su­per-state that now ex­ists.

Re­pub­lic­ans want Obama to de­fend the pro­grams more vig­or­ously. Many Demo­crats want him to dra­mat­ic­ally cur­tail sur­veil­lance. The pres­id­ent, for now, is hop­ing to buy time with sooth­ing non sequit­urs about “ad­di­tion­al con­fid­ence” and “ad­di­tion­al safe­guards.”

The de­bate is here to stay. Obama is now the cent­ral fig­ure that he, pos­sibly for the first time ever, nev­er wanted to be. Snowden’s leaks shoved Obama on the sur­veil­lance cen­ter stage. Act One is over.

Obama’s look­ing for bet­ter writers dur­ing in­ter­mis­sion, be­fore Act Two.

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