On NSA, Obama still says ‘trust me’
Jan 19 2014
The president dropped the pretence 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 the American 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 US history to target political dissent, civil rights organisers 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 programme, which has proved controversial for many reasons.
First, it was never explicitly authorised 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 programme — 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 authorise “a panel of advocates from outside government to provide an independent voice” for big cases, he said. 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 programme.”
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 authorising the bulk data programme 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.” In terms of legislative history, the House of Representative actually came within just 12 votes of limiting NSA data collection in July. Now, 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.
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.
(The writer is a co-host of The Cycle on MSNBC. He is an attorney and correspondent for The Nation magazine)