President Barack Obama talks about National Security Agency (NSA) surveillance, Friday, Jan. 17, 2014, at the Justice Department in Washington.AP2014
In an attempt to reverse the marked expansion of U.S. surveillance apparatus that dates back to the attacks of Sept. 11, 2001, President Barack Obama Friday announced an overhaul of the National Security Agency’s bulk phone data collection programs and the curbing of the agency’s surveillance of foreign leaders.
While what the president called the “necessary” practice of telephone meta data collection will continue, Obama said the government would no longer hold this data, as was authorized under controversial section 215 of the Patriot Act. “I believe we need a new approach,” he said, acknowledging that the NSA’s current programs might “open the door to more intrusive, bulk collection programs.”
Obama also disclosed other measured reforms that appear aimed at salvaging his reputation as a defender of civil liberties at home and abroad. But many changes Obama recommended will be left up to Congress, which has the power to enact more lasting changes in national security policy than can be done by executive order.
Though qualifying praise of the president’s reforms as being couched in ambiguity, some civil liberty advocates and proponents of NSA reform welcomed the scale back of the nation’s surveillance apparatus as a major step in the right direction.
“These reforms are a very big deal,” Faiza Patel, co-director of the Liberty and National Security program at the Brennan Center for Justice, told Al Jazeera.
“One of the biggest and most institutionalized changes since 9/11 has been the massive growth in surveillance," said Patel. "The other thing that has been emblematic of the post-9/11 world has been the introduction of programs that are discreet and cannot easily be dismantled. Surveillance is embedded in these institutions now – institutions that are very hard to change.”
Glenn Greenwald, the journalist who first broke the Snowden story, was less sanguine about the level of reform.
“There were some decent proposals that were included in the speech," Greenwald said in an interview with Al Jazeera, but he underscored that the scope of changes were surface level. Obama offered "only the most cosmetic changes that are designed to placate public anger but shield the system from real reform," Greenwald said.
In a speech that evoked the hero-spies of American history – from Paul Revere to the NSA officers who the president repeatedly praised for their patriotism and sacrifice – Obama framed former intelligence contractor Edward Snowden’s disclosures of secretive NSA programs and the ensuing public outrage as the latest chapter in the nation’s pursuit of a balance between liberty and security.
"When you cut through the noise,” Obama said, “what’s really at stake is how we remain true to who we are in a world that is remaking itself at dizzying speed.”
Since the Snowden leaks began over six months ago, the NSA’s programs – ramped up since 9/11 – have been met with public and foreign scrutiny and placed under review by the administration and a presidentially appointed panel. The U.S. government has taken heat for spying on foreign dignitaries, including allies like Germany’s Angela Merkel and Brazilian president Dilma Rousseff, and for the bulk collection of meta phone data of non-targeted U.S. citizens, which critics allege constitutes a violation of the First and Fourth Amendments.
In the face of institutional resistance, Obama attempted to detail a compromise, at least with respect to the collection of phone meta data.
Though the NSA will still have access to this data when needed, that access will be somewhat curtailed. Starting immediately, the Foreign Intelligence Surveillance Court must review each intelligence community query for such data, and queries will be limited to two “hops” – degrees of separation – from a legitimate national security target.
Indiscriminate pulling of U.S. citizens’ cell phone data will cease, Obama said, and those forced to provide this data, namely the telecommunications companies, will be allowed greater freedom to disclose that information.
"Critics are right to point out that without proper safeguards, this type of program could be used to yield more information about our private lives, and open the door to more intrusive bulk collection programs," the president said.
But Obama’s speech left many questions unanswered, said one of those critics, investigative journalist Marcy Wheeler, who has documented the NSA controversy at the Emptywheel blog. She had wanted to hear Obama call for more laws, or at least endorse one of the slew of motions already circulating through Congress that aim to reform NSA surveillance.
“I was hoping for more structural changes that would actually bring out real change. We’re still relying on the executive to self-confess, to review its own actions. We’re relying on it to exercise judgment, rather than some other, outside entity,” said Wheeler.
Changes in the executive branch’s vision aren’t permanent, she noted – a new president can quickly reverse the course. “The executive can just lie about what they’re doing, in spite of any executive orders,” she added.
A false choice
Many of the reforms Obama called for won't be immediately implemented. The president announced that the Attorney General, Director of National Intelligence and other intelligence heads will be given 60 days to present an alternate plan for custody of meta data so that it can be safely transferred out of the government’s hands — pulled only when a judge permits.
That proposal will be due on March 28, when the program comes up for reauthorization.
Two possibilities have surfaced: the telecommunications companies themselves, who are reluctant to assume the responsibility – and liability – for this data, or some third party, which does not yet exist, will hold the data. There is little consensus on which option might be achieved, or when, and on that, Obama did not elaborate.
Obama, who on the campaign trail once described the choice between civil liberties and security as a “false choice,” continued to walk a tightrope between the two on Friday, conveying a keen understanding of the concerns voiced by both sides of the surveillance debate.
“Those who are troubled by our existing programs are not interested in a repeat of 9/11, and those who defend these programs are not dismissive of civil liberties,” Obama said. “The challenge is getting the details right, and that’s not simple.”
He opened his speech by tracking the country’s reliance on intelligence collection, from Paul Revere through the rise of the Iron Curtain and the post-9/11 intelligence revamp.
But he also noted that abuses of the nation’s civil liberties have been apparent for just as long, mentioning the civil rights leaders and Vietnam War objectors who were heavily surveilled by U.S. intelligence in the 1960s.
“In the long, twilight struggle against Communism, we had been reminded that the very liberties that we sought to preserve could not be sacrificed at the altar of national security,” he said. “I would not be where I am today were it not for the courage of dissidents like Dr. King, who were spied on by their own government.”
That rhetoric indicates the president is sympathetic to American concerns, according to some observers.
“He clearly understands the type of surveillance raises visceral concerns in people, that we have a history here, where surveillance has been abused at home and abroad,” said Patel.
But critics of the speech felt Obama paid too much lip service to compromise without presenting enough fundamental changes.
Steve Vladeck, a constitutional law professor at American University who has been invited to NSA outreach briefings, said Obama failed to follow through on the details he promised. “There’s a lot of rhetoric, with which I think it’s easy to agree, but so much of what’s important about this conversation is the details. There’s a surprising absence of details about how these reforms are going to be undertaken.”
For instance, Obama announced he would put a public advocate on the FISA court as a safeguard of civil liberties, but did not say who that advocate would be nor did he define the purview of that position in the policy directive that accompanied his Friday speech.
“The big headline is, the president gets it, he hears you, and these are really hard questions," Vladeck added. "But he’s not yet sure what the answers are."
In Congress, reception from NSA reform advocates was largely positive and rarely hostile. Among the fiercest critics of bulk data collection is Rand Paul, R-TX, who announced last month he would file a class action law suit on behalf of all Americans with cellphones, citing Fourth Amendment violations.
“President Obama’s announced solution to the NSA spying controversy is the same unconstitutional program with a new configuration,” Paul said in a statement Friday. “The American people should not expect the fox to guard the hen house.”
Across the aisle, Senators Mark Udall, D-CO, Ron Wyden, D-OR, and Martin Heinrich, D-NM, who have also been vocal advocates of NSA reforms, took a different tone.
“Ending this dragnet collection will go a long way toward restoring Americans' Constitutional rights and rebuilding the public's trust,” the senators said in a joint statement. “Make no mistake, this is a major milestone in our longstanding efforts to reform the National Security Agency's bulk collection program.”
Passing the buck to Congress
Obama also tackled the widely publicized, seemingly indiscriminate wiretapping of foreign allies, including Germany's Merkel and Brazilian leader Rousseff. He announced the introduction of certain safeguards for foreign persons, but made special note of the foreign dignitaries who were victim to unwarranted espionage.
“Given the understandable attention that this issue has received, I have made clear to the intelligence community that – unless there is a compelling national security purpose – we will not monitor the communications of heads of state and government of our close friends and allies,” the president said. It remains unclear who might constitute “allies,” however, or why these “allies” have been spied on in the past.
Obama added with a sardonic tinge: “We know that the intelligence services of other countries – including some who feign surprise over the Snowden disclosures – are constantly probing our government and private sector networks, and accelerating programs to listen to our conversations, intercept our emails, or compromise our systems.”
For the past six months, NSA surveillance has been under review, and all the while Snowden, living on political asylum in Russia, has continued his unauthorized leaks about NSA data collection. The latest, which came a day before Obama took the podium to announce his reforms, exposed the agency’s Dishfire program that has collected nearly 200 million mobile phone texts per day worldwide.
Snowden purportedly has only released a tiny fraction of the documents in his possession, which will continue to shape the public debate over infringements on civil liberties made in the name of the nation's security.
Vladeck said that debate will culminate in the halls of Congress.
“The long-term reform was always going to depend on Congress and the introduction of legislation,” he said. “The more the president’s reforms are by executive order, the more they are very short term. If his goal was to move the needle on the long term debate over U.S. surveillance policy, well, he can’t do that by himself.”