After weeks of stunning disclosures about the National Security Agency’s sweeping electronic surveillance powers, President Obama has moved to try to restore the public’s confidence in the government’s spying programs.
In a press conference Friday afternoon, Obama announced a series of reforms that three months ago would have been unimaginable—and almost certainly would have met stiff resistance from intelligence professionals. But the debate forced by a torrent of leaks by former NSA employee Edward Snowden has tilted the politics of national security toward more accountability and transparency.
Among the most meaningful proposals embraced by Obama is one that would add an adversarial voice to proceedings before the Foreign Intelligence Surveillance Court, the secret panel that authorizes wiretaps and other forms of electronic spying in national security cases. Critics have called the court a rubber stamp because only government lawyers appear before the FISA judges, and no one is assigned to advocate specifically on behalf of the privacy interests of the public. Senate Democrats, including Richard Blumenthal of Connecticut and Ron Wyden of Washington, have introduced legislation that would make the FISA a more adversarial system, including the appointment of a special advocate for privacy rights.
Embracing a more adversarial process for the court will likely be well-received by mainstream liberals who have been agitating for such a posture. But Obama’s fiercest critics, such as journalist Glenn Greenwald, who broke the Snowden leaks for the British paper The Guardian, took offense at Obama’s assertion that a debate about the NSA’s techniques would have come to the forefront with or without Snowden’s actions. Critics will also chafe at the sense that the president’s reforms were “intended to appease Americans, not to curtail the surveillance,” as the Associated Press put it.
Obama’s other proposals somewhat difficult to gauge, given that they involve acquiring the cooperation of Congress and appointing a commission of yet-to-be-named officials. In the first, Obama said he intends to work with Congress to tighten a key provision of the Patriot Act—Section 215, which authorizes the collection of telephone metadata for virtually all Americans. The metadata program provoked an uproar among civil libertarians because of its scope and the fact that the government maintains a database of Americans’ phone records in perpetuity that it can tap into with minimal judicial oversight.
Obama sees himself as a civil libertarian.But he also prides himself on not being doctrinaire.
The only reform to Section 215 that would satisfy many civil libertarians and privacy advocates is one that would end that bulk collection of telephone metadata, and Obama made clear that’s something he does not support.
Obama also announced the establishment of a commission made up of former intelligence officials and civil libertarians who will assess the government’s programs and propose possible reforms. He said he will direct the panel to complete a preliminary report within 60 days and complete its findings by the end of the year.
In the meantime, the administration will make public for the first time classified Justice Department legal opinions that it has used to justify the NSA’s most sensitive programs. For its part, the NSA will unveil a new website next week aimed at better communicating to the public its collection programs and the legal authorities underpinning them.
Throughout the press conference, Obama walked a fine line in acknowledging that there was a need for reforms and more transparency, but without conceding that the surveillance programs had ever been abused. He justified his proposals as an effort to bolster public trust in necessary programs.
“It’s not enough for me to have confidence in these programs,” he said. “The American people have to have confidence in them as well.” To underscore the point, Obama used a somewhat awkward analogy about the need to prove to First Lady Michelle Obama that he actually does was the dishes at home.
There are few issues that Obama has struggled more with than calibrating the balance between national security and liberty. As a liberal-leaning former Constitutional law professor, Obama sees himself as a civil libertarian. But he also prides himself on not being doctrinaire in his beliefs. He believes, as he wrote in his 2007 book The Audacity of Hope, that tensions arise not always because one side is right and the other is wrong “but because we live in a complex and contradictory world” which makes it difficult to find the proper balance between competing values. That is essentially how Obama looks at the balance between security and liberty.
While in the U.S. Senate, Obama had been a vocal critic of the Bush administration’s domestic spying programs. By the time he was elected president, those programs had gone through some reforms. Among the earliest briefings he requested was on the NSA’s surveillance programs and the progress the government had made placing them on a firmer legal foundation.
Obama peppered his Justice Department briefers with questions on how the program was working now that it was operating under new guidelines and legal authorities. According to two sources familiar with the session, Obama asked detailed questions about how the program worked, whether it was yielding valuable leads in the effort to identify and thwart terrorist threats, and what specific checks and balances had been worked into the program to guard against violations of Americans’ civil liberties.
At the end of the meeting, Obama gave his briefers the clear impression he was satisfied.