the age of NSA

12.22.13

Obama vs. Orwell—The Biggest Fight of His Second Term

The debate over state surveillance shows the difficulty President Obama faces in both protecting civil liberties and keeping America safe.

It's not just Santa who knows whether you've been naughty or nice – so does the National Security Agency. And after another week in which the massive meta-data spying agency was caught snooping on allied world leaders (take a bow, Benjamin Netanyahu) and non-threats like the global children's charity Unicef, President Barack Obama has the opportunity to rein in the sprawling surveillance state. It could be the defining fight of his second term.

The battle pits the responsibilities of the national security apparatus against demands for transparency in a democracy. But the conflict is embodied within the president himself: the commander in chief versus the constitutional law professor.

Obama was elected on a populist wave, promising to lead "the most transparent administration in history". The former University of Chicago constitutional law professor was more of an idealist than a realist, and unencumbered by long-time association with the D.C. power structure. He was the anti-Cheney.

But then the actual responsibilities of the Oval Office kicked in, to protect and defend not just the constitution, but the American people in a time of terrorism.

As the president pointed out in a testy end-of-the-year press conference: "When it comes to the right balance on surveillance if something slips, then the question that's coming from you the next day at a press conference is, 'Mr. President, why didn't you catch that; why did the intelligence people allow that to slip?'"

The former University of Chicago constitutional law professor was more of an idealist than a realist, and unencumbered by long-time association with the D.C. power structure.

But beyond the day-to-day Hobson's choice, it is now clear that the surveillance state has extended beyond what anyone intended.

Some 53 years ago, President Dwight David Eisenhower warned about the growth of "the military-industrial complex" in his farewell address - the self-reinforcing alliance between private industry and military leaders, excusing (and obscuring) massive expense with the argument that lives are at stake.

In the intervening decades, the threats have shifted but overlapping entities have steadily grown, amplified by the rational panic after the attacks of 9/11.

In 2010, the Washington Post found "some 1,271 government organizations and 1,931 private companies work on programs related to counter-terrorism, homeland security and intelligence in about 10,000 locations across the United States" and more than 850,000 people hold top-security clearances, many of them private sector consultants.

But the explosion of surveillance over the past decade has been enabled by the fact that technology has outpaced our laws. And in the legal grey area, ethical boundaries are always pushed and ill-defined privacy rights trampled, excused by the imperative to stop the next terrorist attack. The surveillance network extends beyond accountability, even to the president of the United States.

But two events this month give us the rare opportunity for a reset. A ruling by Federal Judge Richard J. Leon blasted the NSA program of scooping up phone records as unconstitutional, calling it "almost Orwellian" and claiming that James Madison would be "aghast."

Judge Leon's opinion added urgency to 46 specific reforms presented to the president last week by a White House panel comprised of four respected national security leaders and constitutional law professors that reflect Obama's own dual experiences: Michael Morrell, the former deputy director of the CIA; Richard Clarke, a counter-terrorism advisor to both Bush and Obama; and two famous constitutional law professors, Geoff Stone and Cass Sunstein, who worked alongside Obama when he taught constitutional law at the University of Chicago in the 1990s.

Their sweeping recommendations include ending the massive meta-data phone record collection program, a requirement that judges issue the equivalent of subpoenas for investigations into personal data from third parties; a public advocate on the FISA court; extending privacy rights to non-Americans in the realm of data collection and new procedures across the government to ensure greater transparency.

Taken together, the reforms represent the greatest reining-in of the security state in at least a generation – and despite their ambition, there is optimism that President Obama will back the bulk.

One panelist told The Daily Beast's Daniel Klaidman: "We think that 75 percent of the recommendations are not controversial within the administration and we'll be able to get many of the others."

It is rare to have executives give up power, but President Obama seems to realise that this is a legacy issue that cuts to the core of America's credibility as a force for good in the world. There will be fierce resistance from congressional hawks as well as invested members of the military-industrial complex. But this is a rare moment where the leviathan can be confronted and restrained. President Obama didn't create this problem, but he now has the opportunity to fix it.