President Obama’s speech on NSA reform had all the hallmarks of his administration—and, not coincidentally, of his hyper-analytical, aloof, and cerebral personality.
The endless, quasi-public policy review? Check. Lengthy consultations with a vast variety of experts? Check. (“I’ve listened to foreign partners, privacy advocates, and industry leaders. My administration has spent countless hours considering how to approach intelligence in this era of diffuse threats and technological revolution.”) The rhetorical genuflections to appear fair to both sides. (“Throughout American history, intelligence has helped secure our country and our freedoms…. [But] even the United States proved not to be immune to the abuse of surveillance.”)
And, finally, the laboriously fashioned compromise designed to satisfy everyone, which will actually please no one, with policy proposals of exquisite if sometimes baffling nuance.
This is a pattern we have previously seen, inter alia, with regard to Middle East policy (think of the Cairo speech), Afghanistan, drones, and Guantanamo Bay. Now with the NSA.
Obama, thankfully, declined an opportunity, as advocated by some of his most fervent supporters (who want to see Edward Snowden canonized rather than crucified), to cripple the NSA’s intelligence collection. Instead he is calling for a series of smaller steps that will merely impede the NSA’s activities a bit—or perhaps a lot. It’s hard to tell from the rather vague plans he outlined which will require considerable congressional action, which may or may not be forthcoming.
The president called “on Congress to authorize the establishment of a panel of advocates from outside government to provide an independent voice in significant cases before the Foreign Intelligence Surveillance Court.” He “directed the Attorney General to amend how we use national security letters so that this secrecy will not be indefinite, so that it will terminate within a fixed time unless the government demonstrates a real need for further secrecy.” He took “the unprecedented step of extending certain protections that we have for the American people to people overseas” and mandated that “unless there is a compelling national security purpose we will not monitor the communications of heads of state and government of our close friends and allies.”
Potentially Obama’s most sweeping proposal was also the most amorphous—his plan to alter the collection of telephone metadata. This is the database that NSA has been collecting which lists all phone numbers called and the time and origin of calls and which, with judicial oversight, can be queried for specific information on numbers that may be linked to terrorists.
“Effective immediately,” Obama said, “we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of the current three. And 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 the case of a true emergency.”
All of this is an interim step toward some larger restructuring of the metadata program—a plan that, for all of his months of reflection, the president has not actually come up with and that Congress is far from enacting. Attorney General Holder has been directed to fill in the blanks by the end of March with a program whereby the government can still have ready access to metadata without actually holding onto it. In other words, to square a circle.
As with other Obama decisions, the best that can be said for this is that it could have been worse. That said, it is also the case that these restrictions seem pointless. They will hamper efforts to fight a resurgent al-Qaeda without satisfying the demands of ACLU absolutists. Will fundamentalist libertarians who imagine that Big Brother is spying on their Web browsing sleep better at night knowing that the metadata database can only be queried for phone calls two steps removed from terrorists rather than three? It hardly seems likely, yet that cut-off at two steps rather than three could make all the difference in a terrorist investigation.
There will certainly be important loss of intelligence if Obama’s unwise extension of civil liberty protections to foreigners, including foreign leaders, is seriously implemented—something that’s hard to tell amid all the qualifiers and weasel words (“unless there is a compelling national security purpose”). And it is certain that this American restraint will not be reciprocated by foreign intelligence agencies, even those of our allies. President Obama and other senior officials will still have to leave their Blackberrys and iPhones behind when they enter the Situation Room because they know that foreign intelligence agencies will be trying to “collect” on them.
What the point of all this is it’s hard to say, given that Obama himself acknowledged that “the men and women of the intelligence community, including the NSA, consistently follow protocols designed to protect the privacy of ordinary people. They’re not abusing authorities in order to listen to your private phone calls or read your emails. When mistakes are made—which is inevitable in any large and complicated human enterprise—they correct those mistakes.”
If that’s the case—and nothing from Edward Snowden has shown otherwise—what is the point of hindering the NSA’s collection efforts? After all of the intensive work that went into unveiling this policy, its purpose remains as much of a mystery as its impact. All we know for sure is that Obama is tinkering with something that wasn’t broken—and that has in fact worked effectively to protect us from another 9/11.
