How Barack Obama Made Friends With Big Brother

The president has evolved from ardent civil libertarian to surveillance hardliner. With liberals outraged by the Verizon court order, Daniel Klaidman and Eli Lake chart the change.

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Some Democrats and civil-liberties groups were quick to denounce news that the Obama administration has secretly collected personal telecommunications data from millions of U.S. customers of Verizon. But the news should come as little surprise. President Obama has supported the authority of the National Security Agency to collect such records since he was a candidate for office in 2008.

On Wednesday evening, The Guardian published a blockbuster story detailing a top-secret court order demanding that Verizon Business Network Services Inc. hand over to the federal government all “metadata” from its customers between April 25 and July 19. Metadata includes information about who made phone calls, when they were made and their duration. The order, however, did not allow the government to listen to the calls themselves. On Thursday, U.S. officials confirmed the program and said the data request was not limited to Verizon nor to the dates in the specific court document obtained by The Guardian.

Civil libertarians and Democratic senators such as Ron Wyden and former senator Russ Feingold have long maintained that the federal government has relied on a secret interpretation of the Patriot Act to assert broad-ranging powers of domestic surveillance. Neither Wyden nor Feingold, who were both privy to the interpretation, ever disclosed further details. But The Guardian story confirms that the Obama administration considers section 215 of the Patriot Act, a provision to allow the FBI to secretly demand business records from U.S. companies, to mean it can collect from telecommunications companies information on when, where, and to whom its customers are calling.

“The one silver lining is that it proves we are not all conspiracy theorists,” said Elizabeth Goitein, the co-director of the Liberty & National Security Program at the Brennan Center for Justice. “We have known that there is a disturbingly broad reading of section 215 going on for years.”

Prominent Democrats are criticizing the dragnet-style warrant. At a hearing before the Senate Appropriations Committee on Thursday, Attorney General Eric Holder contended that members of Congress were “fully briefed” on the program. “Fully briefed doesn't mean we know what's going on,” said Sen. Barbara Mikulski, a Democrat from Maryland. And in a Wednesday evening tweet, former vice president Al Gore told followers that “in the digital era, privacy must be a priority. Is it just me, or is secret blanket surveillance obscenely outrageous?”

In the early part of the 2008 presidential campaign, Obama had railed against the Bush administration's warrantless wiretapping program, known as the Terrorist Surveillance Program (TSP). And he had forcefully opposed legislation that would have immunized telecommunications companies that had participated in the TSP against civil lawsuits. But in June 2008, Obama reluctantly agreed to a compromise version of the bill. The legislation immunized the telephone carriers, while at the same time requiring the kind of surveillance being conducted by the National Security Agency under the TSP to be court-approved under the Foreign Intelligence Surveillance Act (FISA). Obama, who was savaged by civil libertarians, released a carefully nuanced statement. "Under this compromise legislation, an important tool in the fight against terrorism will continue, but the president's illegal program of warrantless surveillance will be over," Obama said.

Obama's evolution on surveillance came at a time when the Democratic nomination looked increasingly likely. Former campaign advisers say he was already beginning to pivot toward the possibility that he would soon have to shoulder the burdens of protecting the American people as commander in chief.

After Obama was elected, that shift accelerated. He acted quickly to absorb the extraordinary counterterrorism powers that would soon be at his disposal.

Among the earliest briefings he requested was on the NSA's surveillance program and the progress the government had made placing it on a firmer legal foundation.

Obama peppered his Justice Department briefers on how the program was working now that it was operating under new guidelines and congressional 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.

While Obama did not overtly praise the program, his briefers came away with a clear impression that he was satisfied it was valuable and that it was now on a sustainable legal footing. Over the course of his presidency, he has been briefed on the administration's surveillance programs and has continued to support them, a senior law-enforcement official told The Daily Beast.

Jameel Jaffer, deputy legal director for the American Civil Liberties Union said he was not surprised the Obama administration was using its surveillance powers aggressively. But he also said the Obama administration’s interpretation of the Patriot Act goes beyond what he believes the law actually says. “We never contemplated the government would rely on that provision to implement a dragnet surveillance effort on that scale,” Jaffer said. “In that respect I am surprised. It’s hard to know what limit might exist if this program does not cross that boundary.”

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Goitein said she was worried that the sweeping surveillance authority embraced by President George W. Bush was now embraced by Obama. “This particular practice is one that the Bush administration reportedly engaged in 2006,” she said. “It makes it more disturbing now that this practice is enshrined and given the legitimacy of a bipartisan approach now that the Obama administration is engaging in it too.”