On NSA, Obama still says ‘trust me’

By Ari Melber
January 17, 2014

President Barack Obama’s speech on Friday on intelligence reform marked a bullish shift in his approach to the National Security Agency.

The president dropped the pretense that there was “nothing to see here” — which his administration has offered since former government contractor Edward Snowden first revealed the NSA.’s expanding surveillance. Obama now acknowledges that there are problems to be solved. Yet his reforms boiled down to “trust me.”

While Obama did announce several new ways to increase accountability at the NSA, most were limited to executive actions. So the president basically changed his mind about the limits that he wants to place on his own powers. That means he can just as easily change his mind again and reverse course. So can the next president.

You can see why this kind of unitary “reform” is so attractive to the executive branch.

It offers self-control where our Constitution typically requires separation of powers. The president pledges that he will simply hold back — without the intrusion of new federal laws.

Obama’s strategy seems to treat the NSA, which had been established as a traditionally civilian intelligence agency subject to oversight, more like the CIA, a clandestine unit that has appealed to many presidents as a nearly un-challengeable power base. It’s a troubling approach to powers that, as the president carefully noted, have been abused throughout U.S. history to target political dissent, civil rights organizers and anti-war protesters.

It’s worth keeping this unitary framework in mind when looking at Obama’s specific reforms.

Let’s start with the biggest issue: the NSA’s bulk data program, which has proved controversial for many reasons.

First, it was never explicitly authorized by Congress. It was developed through a murky process of “secret law.” Its approach to personal information turns constitutional rights upside down. Instead of getting approval to gather information on specific Americans, the government gathers “bulk” data on millions of people and then independently — or imperially — decides for itself what’s acceptable to search and use.

On Friday, Obama announced that he is confronting those shortcomings with a new rule. “The database,” he said, “can be queried only after a judicial finding, or in a true emergency.”

This is an improvement. But it’s non-binding and inherently temporary.

The administration’s materials say it will simply “work with” the Foreign Intelligence Surveillance court to ensure “the database can be queried only after a judicial finding.” The court can patrol database use, and certainly encourage future presidents to follow suit. But this is all optional.

“The decision to go to the [spy court] is something the president has directed as a matter of policy,” a senior administration official explained to me after Friday’s speech. “Arrangements are worked out between the government and the court,” the official said, and the court has “not mandated” rules for pre-screening the bulk database.

The same optional attitude drives the president’s other limits on the data program — a rule cutting down the degrees of separation that can be used for tracking people and a new process for moving data out of the government’s hands.

Obama did call for new laws in one important area, however, reforming the one-sided proceedings of the spy court. Congress should authorize “a panel of advocates from outside government to provide an independent voice” for big cases, he said.

Some commentators greeted this as a new proposal from the president. It’s not.

In one of Obama’s most specific calls for NSA reform in August, the former constitutional lawyer said critics were right to object that the spy court “only hears one side of the story.”  It is time “to make sure civil liberties concerns have an independent voice,” the president said in that August address, “by ensuring that the government’s position is challenged by an adversary.”

This is a reform even the spy court would welcome. Over the past few years, judges on the court have rebuked lawyers representing the NSA for using complexity, misdirection and even “substantial misrepresentation” to hide the reach of a “major collection program.”

You don’t need to watch “Law & Order” regularly to know that having both sides represented makes a trial fairer. The White House says these new lawyers could take part in “significant” cases or issues that present “novel issues of law.” This should include the kind of cases that created the secret law authorizing the bulk data program in the first place. And unlike the data reforms, the executive branch would not be the only voice in deciding what is “novel.”

Congress would have to amend the rules for the spy court. Strong reform would require precise triggers — defining what makes a major case, and forcing these new, independent lawyers into the courtroom.

I asked the same administration official about that trigger, and the official responded, “We would support the requirement that it be mandated in significant cases, which the government must notify the court about under the court rules.”Some commentators blithely say a Congress that can barely pass budgets is unlikely to overhaul national security law. That assumption reflects a pre-Snowden attitude.

In terms of legislative history, the House of Representative actually came within just 12 votes of limiting NSA data collection in July. Now, six months later, the president is echoing some of the same criticisms that drove that bipartisan vote, while balancing the institutional pressures of the intelligence community.

This is clearly more debate about civil liberties than the White House had initially planned on. Yet it is far less than the public deserves — given the seismic changes in technology and monitoring playing out over the past few years.

As another administration official put it early Friday, the White House is still figuring out how to address “significant technological advances” that grew “more rapidly” than “our efforts to provide a framework ensuring privacy and civil liberties are protected.”

By working with Congress, the administration could let the public have its first informed input on that framework as well.

 

PHOTO (TOP): President Barack Obama speaks about the National Security Agency from the Justice Department in Washington, January 17, 2014. REUTERS/Kevin Lamarque

PHOTO (INSERT): A mobile phone simulating a call to German Chancellor Angela Merkel next to a tablet computer showing the logo of the National Security Agency is seen in this multiple exposure picture illustration taken in Frankfurt, October 28, 2013. REUTERS/Kai Pfaffenbach

7 comments

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I do not trust Junior High Obama. His track record on veracity is not even marginal, in my opinion. The NSA document is a very complex document with caveats, and will require study to see if it says anything of substance at all, and if it adequately addresses the concerns of the public at large. Many agencies in this administration have been run unfettered for so long, I find it hard to believe their inertia will change course overnight, or just because Junior High Obama said so.

Posted by Art16 | Report as abusive

>Obama still says ‘trust me’
Actually Obama says they are still going to capture the data – just a different data holder – which is still illegal.

Posted by UScitizentoo | Report as abusive

What’s Obama’s position on NSA? Is it legal? Do we need it? Dancing around and spitting “laws” on a daily basis isn’t going to change anything. At this stage the damage is done and there’s nothing he could do to “fix,” particularly when he doesn’t even have a position. If he has extra energy, playing some more golf in Hawaii.

Posted by Whatsgoingon | Report as abusive

Another speech – ho-hum. More proposals – ho-hum. More promises – ho-hum. We have fallen for the rhetoric in the past, but now we want definite action and not weak proposals and false promises.

Posted by AZreb | Report as abusive

“. . .t the NSA, which had been established as a traditionally civilian intelligence agency subject to oversight, more like the CIA”. This is false. The NSA always has been established as a highly secret intelligence agency that is protected by special statutes. Never even one day it NSA’s life has it be a “traditionally civilian intelligence agency” as this uninformed author writes. The President’s speech went a long way in spelling out the dimensions of the problem, and he was more open than any country in the world, and than any President has been in US history. The criticism in this article is unwarranted, and crooked.

Posted by WestFlorida | Report as abusive

Repeal Title 2 of Patriot Act — that would solve half the problem. Then of course we have to contend with the probable scenario that the NSA will continue to undermine our privacy only with far more discretion. That has and will always be an issue.

Posted by Laohu | Report as abusive

We could all just join the KGB/NSA in spying on our neighbors and locking them into prisons and then wait around for the fall of our country and it’s government as no one will have any reason to work or care since merit and capability will no longer matter. Maybe they can brainwash your children into spying on you. I don’t suppose any of you keep things from your children now right? Anyway, life was probably better if you were the sadistic KGB person rather than the victim of their lies and cruelty, so join the NSA and torture your neighbors, it will be much better than being the victim.

Posted by brotherkenny4 | Report as abusive