In overhauling the nation’s spy programs, President Obama vowed on Friday that he “will end” the bulk telephone data program that has caused so much consternation — “as it currently exists.”
The caveat is important. Although Mr. Obama imposed some new conditions on the program, the National Security Agency, for the time being at least, will continue to maintain and tap into its vast catalog of telephone data of tens of millions of Americans until someone can think of another way to do the same thing…
[F]or a president who came to office promising to end what he considered the excesses of the new security state, Mr. Obama’s speech on Friday was as much about the larger question of faith. Rather than throw out the programs at issue, he hoped to convince the public that they are being run appropriately.
After Friday, keep in mind how the status quo has, or has not, been altered:
1) The phone metadata still exists.
2) It will be kept, at least in the short-term, by the government until Congress figures out what to do with it. (And don’t think the telecom lobby won’t play a role in that.)
3) It will be searched.
4) Searches will be approved by a court with a record of being friendly to the government, one without a new privacy advocate.
5) National security letters can still be issued by the FBI without a court order.
6) Much of this activity will remain secret.
As a 2008 candidate, Barack Obama regularly castigated then-President George W. Bush for what he called excessive surveillance programs. Joe Biden, now Obama’s vice president, criticized former New York City Mayor Rudy Giuliani’s GOP presidential platform at the time as little more than “a noun, a verb and 9/11.”
Yet Sept. 11 played a starring role in Obama’s justification of the signals intelligence program during his Friday speech about National Security Agency reforms. The president invoked Sept. 11 eight times Friday, saying the attacks on New York and the Pentagon justify and demand maintaining a robust surveillance apparatus to keep the nation and its allies safe.
It’s the latest in Obama’s evolution from a critic of those who used Sept. 11 to justify national security procedures to a leader who uses the attacks to defend his administration’s surveillance policies.
“We heard a lot of lies in this speech by Obama,” Assange said. “I think it’s embarrassing for a head of state to go on like that for 45 minutes and say almost nothing.”…
Assange said the speech wouldn’t have happened without the leaks by former NSA contractor Edward Snowden, who disclosed the details of these programs. Obama was “dragged, kicking and screaming” to the address, Assange said.
“Although those national whistle blowers have forced this debate, this president has been dragged, kicking and screaming to today’s address. He is being very reluctant to make any concrete reforms,” he said. “Unfortunately today we also see very few concrete reforms.”
Obama is just pushing the debate further down the road, Assange said, by delegating some of these decisions to a divided Congress and panels of lawyers.
“What I think I heard is that if you like your privacy, you can keep it,” Paul, the Republican senator from Kentucky, said in an interview with CNN’s Wolf Blitzer. “But in the meantime, we’re going to keep collecting your phone records, your email, your text messages and, likely, your credit card information.”…
“He mentioned Paul Revere. But Paul Revere was warning us about the British coming,” Paul said. “He wasn’t warning us that the Americans are coming.”
Later in the interview, Paul said he’s opposed to all massive data collection, by both the federal government and the private sector. Beyond civil liberty concerns, Paul said such massive surveillance just isn’t practical.
“Who are we going to hire, [Edward] Snowden’s contractor to hold all the information?” Paul said, laughing at his own joke.
If I understand Obama’s new policy on Section 215, he is going to have the Executive Branch ask the judges on the Foreign Intelligence Surveillance Court (FISC) to begin to limit when the Executive can query the Section 215 database. That is, he will ask the judiciary to take on a new power to limit the Executive, so that the Executive can only query the database when the executive gets a court order signed by the FISC. In his words, “I have directed the Attorney General to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding, or in a true emergency.”
Maybe I’m just old-fashioned, but doesn’t Congress need to be involved in this little enterprise? The FISC is a creation of Congress. It has no power to do anything that Congress doesn’t grant it. The Executive and the Judiciary can’t just meet and agree on a new set of rules to govern surveillance programs; those rules are supposed to be generated by Congress. I suppose it shows how far from Congress’s text the FISC has taken the law that the Executive sees the FISC as the primary negotiating partner in creating new rules. The FISC’s interpretation of Section 215 is based on an implausible reading of Congress’s law, so it’s almost like it’s the FISC’s authority at issue, not Congress’s. But I hope we could recognize that FISA is a statute and statutes are enacted by the legislature. If the President and the FISC are having trouble locating this sometimes-elusive branch of government, they’re in the fancy building with the dome near the Supreme Court. Big building, can’t miss it.
Obama cannot have it both ways. Either the government’s mass collection of every American’s telephone records is essential to national security, or it isn’t. Either the surveillance activities that ignited public outrage when they were revealed last June amount to nothing more than a “modest encroachment” that “the American people should feel comfortable about,” as Obama claimed at the time, or they pose substantial threats to privacy that need to be mitigated, as he indicated today. Either the reforms he announced will protect Americans from indiscriminate snooping, or they are mere window dressing aimed at “giv[ing] the American people greater confidence that their rights are being protected” (as he put it today) without actually protecting those rights.
Obama did manage to utter at least one important truth:
“Given the unique power of the state, it is not enough for leaders to say: trust us, we won’t abuse the data we collect. For history has seen too many examples when that trust has been breached. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends upon the law to constrain those in power.”
I believe this, but I do not believe that Obama does.
While Snowden initially represented his priorities as being those of American civil liberties and the exposure of spying on American citizens, the leaks quickly turned into tales exposing the legitimate spying activities external to the United States…
Today was a victory for Snowden and his allies, but not the kind of victory civil libertarians should hope for. The restrictions on spying on American citizens announced by the president seem mostly like window dressing, adding a few hoops and a mess of paperwork to slow down the process without achieving fundamental change. But if the restrictions on spying overseas are real, and not just lip service, they represent a marked degradation of the ability of America’s intelligence community to do the job they’ve been tasked with from the beginning.
This should please Snowden and his allies. Their aim, rather than ensuring the protection of civil liberties, has turned into a broader push to restrict the footprint of the intelligence gathering efforts of the United States. It’s now a reality only made possible because of their appeal to a power structure that essentially shares their view of the proper role of America in the world.