Obama’s NSA Proposals Fall Far Short of Real Change

The White House’s tepid plan aims to calm the public, not curtail the government’s surveillance programs.

President Barack Obama speaks about the National Security Agency (NSA) and intelligence agencies surveillance techniques at the US Department of Justice in Washington, DC, January 17, 2014.
National Journal
James Oliphant
Jan. 17, 2014, 6:52 a.m.

The White House prom­ised Fri­day that it was end­ing the NSA’s most con­tro­ver­sial sur­veil­lance pro­gram “as it cur­rently ex­ists.” But make no mis­take, it’s still go­ing to ex­ist.

In fact, what Pres­id­ent Obama has an­nounced will have little op­er­a­tion­al ef­fect on the Na­tion­al Se­cur­ity Agency’s col­lec­tion of Amer­ic­ans’ data. And, sig­ni­fic­antly, the ad­min­is­tra­tion has at­temp­ted to dodge some of the biggest de­cisions, passing the ball to Con­gress, which will likely do noth­ing if re­cent trends hold.

Much of the at­ten­tion in the run-up to the speech in­volved the NSA’s re­ten­tion and search of so-called metadata — call­ing re­cords, in­clud­ing calls made by U.S. cit­izens, that help the gov­ern­ment identi­fy po­ten­tial ter­ror­ist re­la­tion­ships. And the pres­id­ent didn’t come close to what pri­vacy ad­voc­ates have wanted — a sharp cull­ing of the pro­gram or its out­right ter­min­a­tion.

In­stead, the goal of Fri­day’s an­nounce­ment — as it has al­ways been — was to re­as­sure a skit­tish pub­lic both here and abroad that the pro­gram is be­ing used re­spons­ibly. “This is a cap­ab­il­ity that needs to be pre­served,” a seni­or ad­min­is­tra­tion of­fi­cial said.

After Fri­day, keep in mind how the status quo has, or has not, been altered:

1) The phone metadata still ex­ists.

2) It will be kept, at least in the short-term, by the gov­ern­ment un­til Con­gress fig­ures out what to do with it. (And don’t think the tele­com lobby won’t play a role in that.)

3) It will be searched.

4) Searches will be ap­proved by a court with a re­cord of be­ing friendly to the gov­ern­ment, one without a new pri­vacy ad­voc­ate.

5) Na­tion­al se­cur­ity let­ters can still be is­sued by the FBI without a court or­der.

6) Much of this activ­ity will re­main secret.

The pres­id­ent made two ma­jor policy pre­scrip­tions. First, he called for the data to be housed some­where oth­er than with­in the gov­ern­ment. Second, he said be­fore the NSA can search the call­ing-re­cord data­base, it should ob­tain ju­di­cial ap­prov­al.

To the first, the pres­id­ent would not spe­cify where the data will be ul­ti­mately stored. He wants the Justice De­part­ment and the in­tel­li­gence com­munity to come up with a pro­pos­al with­in 60 days. The ad­min­is­tra­tion is re­luct­ant to force tele­com pro­viders to house the data, both be­cause of lo­gist­ic­al prob­lems and be­cause the in­dustry wants noth­ing to do with it. Some have sug­ges­ted cre­at­ing a private con­sor­ti­um, but that will take time. And if it proves that there is no bet­ter place to keep the data, it well could re­main with the U.S. gov­ern­ment. (Sounds a little like GITMO.)

To the second of Obama’s meas­ures, ju­di­cial over­sight will come in the form of the For­eign In­tel­li­gence Sur­veil­lance Court, which crit­ics say acts as a rub­ber stamp for gov­ern­ment sur­veil­lance re­quests, rather than by more in­de­pend­ent-minded fed­er­al judges on oth­er courts. The Wall Street Journ­al last year es­tim­ated the Court re­jects less than 1 per­cent of all re­quests; the chief judge has main­tained that it sends back up to 25 per­cent. Either way, the over­whelm­ing ma­jor­ity of re­quests are gran­ted un­im­peded, par­tic­u­larly when the re­quests are time-sens­it­ive.

Tellingly, the pres­id­ent re­jec­ted a re­com­mend­a­tion from an out­side pan­el to es­tab­lish a “pub­lic ad­voc­ate” in­side the Court to rep­res­ent pri­vacy in­terests. In­stead, he wants an out­side group of ex­perts to con­sult on cut­ting-edge leg­al mat­ters, not on day-to-day sur­veil­lance re­quests.

Yes, the FISA re­view adds an ex­tra step to the pro­cess (one that may frus­trate coun­terter­ror hawks), but it likely will do little to re­strain the NSA. (The pres­id­ent is tak­ing one con­crete step, lim­it­ing searches to two “hops” away from a sub­ject’s phone num­ber, not three.)

The pres­id­ent also re­jec­ted a re­com­mend­a­tion that the so-called na­tion­al se­cur­ity let­ters used by the FBI to ob­tain busi­ness re­cords from in­vest­ig­a­tion tar­gets be sub­ject to ju­di­cial ap­prov­al, after the bur­eau ob­jec­ted to the idea.

Most im­port­ant, many of the re­com­mend­a­tions the pres­id­ent made Fri­day are per­ish­able. Ul­ti­mately Con­gress will have to de­term­ine the data-col­lec­tion and stor­age is­sues and oth­er ma­jor ele­ments of the pro­gram, in­clud­ing the pro­ced­ures of the FISA court, when it reau­thor­izes the NSA pro­gram this spring at the end of the 60-day win­dow out­lined by the pres­id­ent.

And it’s pos­sible Con­gress could choose to keep it in its cur­rent form, of­fi­cials con­cede.

Seni­or ad­min­is­tra­tion of­fi­cials main­tain that none of these sur­veil­lance pro­grams have been ab­used — and that they re­main a valu­able tool in com­bat­ing na­tion­al se­cur­ity threats (des­pite little evid­ence the metadata pro­gram has played a dir­ect role in foil­ing an at­tack). It’s why Pres­id­ent Obama was quick to men­tion the 9/11 at­tacks in his re­marks Fri­day. And it’s why, in his mind, re­form could really only go so far.

As it turned it, it wasn’t very far at all.

{{ BIZOBJ (video: 4662) }}

What We're Following See More »
When It Comes to Mining Asteroids, Technology Is Only the First Problem
2 days ago

Foreign Policy takes a look at the future of mining the estimated "100,000 near-Earth objects—including asteroids and comets—in the neighborhood of our planet. Some of these NEOs, as they’re called, are small. Others are substantial and potentially packed full of water and various important minerals, such as nickel, cobalt, and iron. One day, advocates believe, those objects will be tapped by variations on the equipment used in the coal mines of Kentucky or in the diamond mines of Africa. And for immense gain: According to industry experts, the contents of a single asteroid could be worth trillions of dollars." But the technology to get us there is only the first step. Experts say "a multinational body might emerge" to manage rights to NEOs, as well as a body of law, including an international court.

Obama Reflects on His Economic Record
2 days ago

Not to be outdone by Jeffrey Goldberg's recent piece in The Atlantic about President Obama's foreign policy, the New York Times Magazine checks in with a longread on the president's economic legacy. In it, Obama is cognizant that the economic reality--73 straight months of growth--isn't matched by public perceptions. Some of that, he says, is due to a constant drumbeat from the right that "that denies any progress." But he also accepts some blame himself. “I mean, the truth of the matter is that if we had been able to more effectively communicate all the steps we had taken to the swing voter,” he said, “then we might have maintained a majority in the House or the Senate.”

Reagan Families, Allies Lash Out at Will Ferrell
2 days ago

Ronald Reagan's children and political allies took to the media and Twitter this week to chide funnyman Will Ferrell for his plans to play a dementia-addled Reagan in his second term in a new comedy entitled Reagan. In an open letter, Reagan's daughter Patti Davis tells Ferrell, who's also a producer on the movie, “Perhaps for your comedy you would like to visit some dementia facilities. I have—I didn’t find anything comedic there, and my hope would be that if you’re a decent human being, you wouldn’t either.” Michael Reagan, the president's son, tweeted, "What an Outrag....Alzheimers is not joke...It kills..You should be ashamed all of you." And former Rep. Joe Walsh called it an example of "Hollywood taking a shot at conservatives again."

Clinton No Longer Running Primary Ads
2 days ago

In a sign that she’s ready to put a longer-than-ex­pec­ted primary battle be­hind her, former Sec­ret­ary of State Hil­lary Clin­ton (D) is no longer go­ing on the air in up­com­ing primary states. “Team Clin­ton hasn’t spent a single cent in … Cali­for­nia, In­di­ana, Ken­tucky, Ore­gon and West Vir­gin­ia, while” Sen. Bernie Sanders’ (I-VT) “cam­paign has spent a little more than $1 mil­lion in those same states.” Meanwhile, Sen. Jeff Merkley (D-OR), Sanders’ "lone back­er in the Sen­ate, said the can­did­ate should end his pres­id­en­tial cam­paign if he’s los­ing to Hil­lary Clin­ton after the primary sea­son con­cludes in June, break­ing sharply with the can­did­ate who is vow­ing to take his in­sur­gent bid to the party con­ven­tion in Phil­adelphia.”

Movie Based on ‘Clinton Cash’ to Debut at Cannes
2 days ago

The team behind the bestselling "Clinton Cash"—author Peter Schweizer and Breitbart's Stephen Bannon—is turning the book into a movie that will have its U.S. premiere just before the Democratic National Convention this summer. The film will get its global debut "next month in Cannes, France, during the Cannes Film Festival. (The movie is not a part of the festival, but will be shown at a screening arranged for distributors)." Bloomberg has a trailer up, pointing out that it's "less Ken Burns than Jerry Bruckheimer, featuring blood-drenched money, radical madrassas, and ominous footage of the Clintons."