Backfire: Instead of whitewashing NSA surveillance, Obama's handpicked review panel urges change

Not the result His Majesty expected, needless to say. Remember, he chose this panel because he trusted they’d go face-first into the tank for him by rubber-stamping mass surveillance. In the end they recommended 46 changes to the program, the most prominent of which is to have telecom companies control the database of customers’ metadata going forward rather than let the feds hoard the info and do lord knows what with it as government’s data-crunching capabilities inevitably expand. Only by getting an order from the FISA Court should the NSA be able to access the database, the panel said, and only then if it’s relevant to a particular terrorism investigation.


The full report is more than 300 pages long but I doubt there’s a more important paragraph in it than this one. Today’s magic words are “not essential.”


That’s the second time in three days that an independent observer who’s looked closely at the program has claimed that it’s just not very effective. The other was Judge Richard Leon, who invited the DOJ to show him examples of metadata helping to stop terrorist plots and felt obliged to note that they couldn’t.

Benjamin Wittes of Lawfare knows a political disaster when he sees one:

This is a really awkward document for the Obama administration. Really awkward.

The President, after all, has stood by the necessity of the Section 215 program and objected to legislative proposals to curtail it. Then the White House handpicks a special review group, and it kind of pulls the rug out from under the administration’s position…

Similarly, the administration has stood by its national security letters authority. The review group suggests reining it in…

To put the matter bluntly, there is no way the administration will embrace a bunch of these recommendations. And from this day forward, any time the White House and the intelligence community resist these calls for change, the cry will go out that Obama, in doing so, is ignoring the recommendations of his own review panel. And the cry will be right.

Exactly. The panel’s recommendations obviously aren’t binding on him, but this report was supposed to be a fig leaf for O so that he could make some cosmetic changes and then declare the program “fixed.” As it is, they’re suggesting at least one change, i.e. placing the NSA and America’s Cyber Command under different directors, that the White House has already rejected out of hand. And certain others, like having the NSA stop trying to undermine encryption standards so that it can stay ahead of the technological privacy curve, are bound to be rejected too.


But … maybe we’re looking at this the wrong way. Here’s a tantalizing tidbit from Politico’s report yesterday about NSA officials being “slobberknockered” by how hard Obama’s panel ended up being on them:

Reflecting on the dramatic changes that have taken place since the first newspaper stories based on Snowden’s leaked materials began appearing back in June, one U.S. official noted that the NSA’s once-solid support inside the White House and on Capitol Hill has waned since the panel was created in August, and that the once cordial relationship between the White House and NSA has become distinctly “chilly” over the past two months.

NSA officials became concerned this fall when their memos were increasingly ignored and their phone calls to key officials in Washington, especially at the State Department, were not returned. And more ominously, rumors began to reach NSA headquarters at Fort Meade, Maryland, that the review panel had been given new marching orders to be robust and searching in its report.

“We got the distinct impression that we were now lepers in Washington,” a senior NSA official recalled, adding, “Putting as much distance as possible between the White House and us was the order of the day.”

Between the promise of further (and more damaging?) Snowden revelations and the potential for this subject to spark a bipartisan revolt in Congress (Justin Amash’s defunding measure nearly passed the House a few months ago), maybe the White House decided that it was time to throw the NSA under the bus. At some point, perhaps, the order came down to the panel that the best way to protect Obama was to switch from a whitewash of the program to a few meatier reform proposals that he can embrace as a way of limiting his political exposure on Big Brother surveillance. There’s no way, really, for him to suddenly change his mind and claim that he’s spontaneously reconsidered everything he said before in defense of the program. But if his handpicked panel floats a few ideas for him, he can portray himself as the can-do executive who took the problem seriously enough to closely investigate it and then listened to his experts when they urged him to change course in a few ways. He conducted a fact-finding mission, by delegation, and now his opinion has changed in a few particulars. What a champ.


He’s not going to get rid of the program, obviously — if he did that and there was a new attack on U.S. soil, hawks would destroy him over it notwithstanding today’s “not essential” finding — but maybe adopting a few key recommendations will calm Democrats in Congress and liberals in his base. That at least might spare him some legislative humiliation in which a more draconian reform measure passes both houses and he has to decide whether to veto it or not. O looooves unilateral power, but he doesn’t want unilateral responsibility for protecting the program. Exit quotation from Pat Leahy: “The message to the NSA is now coming from every branch of government and from every corner of our nation: You have gone too far.”

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David Strom 10:00 AM | June 21, 2024