Eventually, President Barack Obama is going to have to go on the offensive in the debate over how to reform American intelligence gathering practices, and on Friday, he offered a few hints as to how he might do so.
In an end-of-year press conference before he left for his Hawaii vacation, Obama signaled a willingness to place control of a controversial database of telephone records in the hands of a third-party. Additionally, the president said that he may be willing to grant foreigners some privacy protections.
"It is possible, for example, that some of the same information that the intelligence community feels is required to keep people safe can be obtained by having the private phone companies keep these records longer and to create some mechanism where they can be accessed in an effective fashion," Obama said in reference to the mass-collection of phone metadata. "That might cost more. There might need to be different checks on how those requests are made. There may be technological solutions that have to be found to do that."
That program, which forces U.S. telecom companies to provide comprehensive telephone records to the NSA, stands at the center of the debate over whether the agency has acted too aggressively and potentially violated civil rights. On Monday, a Federal District Court judge said that mass-collection of Americans’ phone records all but certainly violates the Constitution, and on Wednesday, a presidentially appointed panel released a report arguing that the collection of such records ought to be seriously curtailed.
Of the many reform proposals that have been floated since NSA documents leaked by Edward Snowden began appearing in the press, the scheme to place control of the massive phone records database in the hands of a third party has gained particular traction. Administration officials have signaled a willingness to consider the proposal, and on Friday, it gained its most important, if reluctant, backer yet. While the president certainly didn’t go so far as to say he plans to implement the proposal, it is unlikely that Obama would reference the idea in such a positive light in a public forum. In Washington-parlance, it’s called sending up a trial balloon.
Despite the apparent embrace of the proposal, the telecom industry and privacy advocates are less than enthused about it. Telecom companies are loathe to take on responsibility for what would be costly, highly controversial database. Privacy advocates contend the proposal does little to address concerns about drag-net surveillance and that such a database would be a ripe target for hackers.
Those privacy advocates certainly have a point: While the proposal would arguably make it more difficult to carry out searches of Americans’ phone records, it wouldn’t eliminate the NSA’s ability to do so. That’s likely part of the reason why administration officials are willing to get behind the idea. It provides a highly public fix to a deeply controversial program while at the same time not significantly altering the agency’s intelligence-gathering capabilities. That’s what the White House would call a win-win.
That’s a reality basically acknowledged by the president Friday. "Programs like 215 could be redesigned in ways that give you the same information when you need it without creating these potentials for abuse, and that’s exactly what we should be doing, is to evaluate all these things in a very clear, specific way and moving forward on changes," Obama said, referring to the section of the Patriot Act often used to authorize such collection. "And that’s what I intend to do." At another point of the press conference he put it this way: "There may be another way of skinning the cat." The key point is that the cat — the metaphorical objective of intelligence gathering — is still getting skinned.
But on another key point of proposed intelligence reform, privacy advocates may have more to celebrate. In his remarks, the president also said that he may be willing to extend some privacy protections to foreigners. Noting that American intelligence agencies have had "had less legal constraint in terms of what we’re doing internationally," Obama said that "in a virtual world, some of these boundaries don’t matter anymore." That, Obama implied, may require the NSA to reconsider how it values foreigners’ privacy rights. "Just because we can do something doesn’t mean we necessarily should, and the values that we’ve got as Americans are ones that we have to be willing to apply beyond our borders, I think, perhaps more systematically than we’ve done in the past," he said.
The distinction between the privacy rights of Americans and foreigners has become a central fault line in the debate over intelligence gathering in the aftermath of Snowden’s disclosures. Some civil liberties advocates have argued that the NSA’s most egregious offenses lie in the collection of Americans’ data and that surveillance against foreigners falls well within the purview of the agency’s mandate. More ardent privacy activists consider any and all dragnet surveillance a violation of individual rights — regardless of the target’s nationality. In his remarks, Obama at the very least appeared sympathetic to the argument that the NSA should not be carrying out wholesale intelligence operations against foreigners.
But the likelihood of Obama carrying out serious intelligence reform still remains highly unlikely. Twelve years after the attacks of 9/11, the politics of such reform efforts are still firmly stacked in favor of the intelligence community. In a revealing exchange with Fox News’ Ed Henry, Obama made clear why he remains loathe to strip the NSA and its brethren of their powers. Challenged by Henry as to whether he had been consistent in his statements about the appropriateness of NSA programs, Obama made clear that it’s nearly all but impossible for him not to support the agency. "If something slips, then the question that’s coming from you the next day at a press conference is, ‘Mr. President, why didn’t you catch that? Why did the intelligence people allow that to slip? Isn’t there a way that we could have found out that in fact this terrorist attack took place?" said Obama.
That’s a political riddle that civil rights advocates still haven’t been able to solve. Few politicians are willing to go on the record rolling back intelligence-gathering powers if they are going to be blamed down the road for curtailing tools that might have stopped an attack. But this week, civil rights advocates were handed their most powerful argument yet in trying to roll back bulk collection: The methods just don’t work. The panel convened to evaluate NSA intelligence gathering activities and which released its report on Wednesday, said it was completely unconvinced that the collection of telephone records had stopped any terror plots. The federal judge that called such activities in all likelihood unconstitutional made a similar conclusion.
Those are two powerful datapoints for civil liberties activists. But significant political hurdles still remain for serious reform. As evidenced by his comments, Obama remains reluctant to scale back intelligence gathering and have to pay a political price later on.
Equally important, an influential group of legislators on Capitol Hill continue to defend bulk-collection methods. "The NSA’s metadata program is a valuable analytical tool that assists intelligence personnel in their efforts to efficiently ‘connect the dots’ on emerging or current terrorist thre
ats directed against Americans in the United States," Sen. Dianne Feinstein (D-CA), Sen. Saxby Chambliss (R-GA), Rep. Mike Rogers (R-MI), and Rep. Dutch Ruppersberger (D-MD) said in a statement Friday. "The necessity of this program cannot be measured merely by the number of terrorist attacks disrupted, but must also take into account the extent to which it contributes to the overall efforts of intelligence professionals to quickly respond to, and prevent, rapidly emerging terrorist threats." Collectively, those four legislators make up the leadership of the House and Senate intelligence committees.
There can be no doubt that Snowden has completely changed the conversation about American intelligence gathering. What he hasn’t done is change the politics in Washington. At least not yet.