How a constitutional scholar became a "just trust me" pol.
- By David RothkopfDavid Rothkopf is visiting professor at Columbia University's School of International and Public Affairs and visiting scholar at the Carnegie Endowment for International Peace. His latest book is The Great Questions of Tomorrow. He has been a longtime contributor to Foreign Policy and was CEO and editor of the FP Group from 2012 to May 2017.
Few of the speeches President Barack Obama has delivered during his tenure in office illustrate his transformation from messiah to mediocrity, a middle of the pack president likely to fit in somewhere between Rutherford B. Hayes and Martin Van Buren, quite as well as his tepid, inadequate, and something-for-everyone but much-less-than-meets-the-eye speech on NSA reforms on Friday. At just the moment when the country needed the constitutional scholar who was bold enough to speak truth to power — the man who many of us thought we were electing in 2008 and then again in 2012 — we instead got the wobbly, vague, "trust me" of a run-of-the-mill pol.
The great flaw within the president’s remarks was not its inadequate details nor the issues it left unaddressed or punted off into an indefinite future. Nor was it the fact that he left the specifics of the implementation of many of the "reforms" to the judgment of many of the same folks who created the problem he was addressing. Rather the president, once again, sent the message that at least until he leaves office, he would like us to embrace the idea that personality is more important than principle in U.S. policymaking. In other words, he sought to reassure his supporters and critics (who are understandably worried about government overreach and the violation of civil liberties and wary of policies driven more by fear-mongering than prudent perspective), by more or less saying, "Don’t worry, I’m a good guy, I’ll make sure that all the big decisions that get made will be OK."
Quite apart from the fact that wave upon wave of Snowden-fed revelation belies that argument, it ignores a central truth that the constitutional scholar should recognize. Our country was founded on clear limits being placed on the power of government because for all the generations of good and earnest leaders we may have or have had, our planet’s history and human nature tell us we must protect against those who might someday abuse their power.
Among the president’s "reforms" announced in his speech was a plan to shift the storage of collected data to a third-party host and to require that government agencies receive court approval before accessing this database. Of course, we know how well third-party entities manage their responsibilities and preserve what should be secure (look at Booz and Snowden). And while seeking court approval is a good step — as required by the Fourth Amendment of the Constitution — if the court in question is the never-met-a-request-they-didn’t-like FISA court, it’s roughly like leaving the Kardashians to adjudicate national standards of chastity.
In his speech the president raised the hopes of those seeking more protection for individual rights by proposing the creation of a privacy panel to consult with the court. But that provision was compromised by the qualification that in his proposal the panel will only address "novel" issues, meaning that once the court has agreed that certain types of searches are legal, then all future cases that can be analogized to be the same (and thus not novel) will be fair game.
On international snooping, there appear to be only a couple of dozen clear winners — a handful of heads of state of allied and friendly governments who from now will no longer be subjected to surveillance. The cabinet colleagues of these leaders? Still fair game. Staff? OK to eavesdrop on them. Families? Why not? Legislators? Military leaders? Police forces? Of course. As far as the rights of international citizens go, the president said we will set new guidelines. Does that mean less poking around in text messages or email accounts of tens of millions of foreigners? Not necessarily. The only assurance is that the United States will only store this information for a shorter period of time. Though how much time that will be remains unclear.
What happened to the vast array of recommendations of the president’s council set up to assess our surveillance programs? Listening to the speech, most were punted, unaddressed or addressed by creating vague new processes that still leave open plenty of opportunity for abuse. And for those who argue (as many current and former top intelligence officials have) that there have not been any proven cases of abuse of the surveillance powers, the response must be, to many reasonable Americans and foreign citizens, that simply accessing private data qualifies as an abuse. Further, as noted above, the critical factor in weighing whether such programs should continue is not whether abuse has taken place, but whether under the rules and processes we establish, it someday could. The possibility of abuse is what drives the establishment of constitutional limitations of government power, not the proof of past abuses.
The weakness of the president’s arguments shone through most strongly when he sought to pour oil upon the waters with the assertion that we, the United States, are not Russia or China. Talk about setting a low bar for a country that views itself as being a light unto the nations of the world. We aren’t, the president said soothingly, as bad as two authoritarian societies founded on the ideas that individual rights and liberties take a back seat to the needs (and whims) of the state and its bosses.
I do not doubt that the president is troubled by many of the fundamental questions raised by the current surveillance debate. Indeed, listening to and reviewing his remarks, I could not help but be reminded of the comment former Secretary of Defense Robert Gates made in his book when he wondered whether the president really supported his own Afghanistan policy. I’m sure the president is walking not one but several fine lines here: Between his principles and his desire to provide for the security of the American people, between his core constituency on the left and those upon whom he must depend in the intelligence and national security community, between his advisors pushing for reform and those urging he not go too far. He, as president, is also acutely and uniquely aware of the risks facing the United States and surely, does not wish to implement changes that might somehow enhance those risks or might open him to criticism should some attack come to pass.
Those are all reasons that balanced, thoughtful deliberation is wise in such circumstances. But the difference between a strong leader and just an average one is that after such deliberations, the strong leaders hew to principle and the long-term interests of their people and make bold and decisive choices when necessary, even if those choices open them up to political attack.
In this instance, a president who was elected to undo the errors of his predecessor in overreacting to the attacks of 9/11 by launching three massive wars — one in Iraq, one in Afghanistan, and one against terrorists worldwide — has not only bungled the execution of each such desired reversal, he has produced a world in which our enemies and the chaos that serves them are now regaining strength. And where he should have sought to undo the mentality that led to the creation of those misguided and mishandled wars — the fear-driven overstatement of the risks we face — he not only failed, he has succumbed. He oversaw and accepted the expansion of the NSA’s programs based on the logic that because a single bad actor could duplicate the devastation of 9/11, everyone everywhere effectively became a potential threat. We went from a bi-polar world in which we had one primary enemy, into not a unipolar world but into an apolar one in which our potential adversaries numbered in the thousands or even millions. Only such an analysis could warrant the shift of our intelligence community from its targeted approaches of the Cold War to the more wholesale, scattershot, limit-lite approaches of today.
Obama didn’t change the government as he was elected to do, he was changed by it. Perhaps that was inevitable. And no doubt some of the change was informed by new knowledge. But he sold his training and seeming previous values as well as those of his core supporters short. He should have given a speech today embracing and promising to implement the changes recommended by the smart, dedicated public servants on his surveillance council with immediacy and transparency. He should have said the NSA would do just fine if it played by the same, quite flexible rules followed by say, the CIA — reporting missions and programs to Congress, and the FBI, working with courts to win wiretaps when needed. He should have said that metadata is clearly covered by the Fourth Amendment and vowed to have the administration file a brief in pending court cases supporting that view. He should have said that Americans and others worldwide had a right to privacy, one that must to be protected, even if it means slightly increasing the risk of the possibility of an occasional attack. (And there is debate about how effective many of the NSA’s programs are.) He should have said that our focus ought to be not on what we fear but on what we value, on preserving the freedoms our forefathers fought to protect rather than compromising them in the hopes of protecting us against that which we cannot expect to ever eradicate. The way to fight terrorists is to focus on resilience and systematic, targeted efforts to go after known bad actors. Not with misguided invasions of sovereign powers nor with misguided violations of sovereign or individual rights worldwide. That is not to say we won’t spy or shouldn’t. We must and will. Rather it is to recognize that the limits we place on programs like the surveillance efforts of the NSA are as important to protecting us from future threats as are the programs themselves.