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Wednesday, December 7, 2016

President Obama made a point to note in his speech on Friday that last year in May, weeks before former NSA contractor Edward Snowden’s leaks became public, he called for a “more robust public discussion about the balance between security and liberty.”

That discussion became much more robust than he ever planned, as Snowden revealed secret court decisions, classified presentations and schematics that showed America’s surveillance infrastructure had reacted to the terrorist attacks of 2001 with an ever-increasing dragnet that gathered massive amounts of data and presented an unlimited potential for abuse.

The president had responded to those leaks several times since they first emerged, but on Friday he presented the first set of concrete reforms designed to to restore the public’s faith in the intelligence community.

“Those who are troubled by our existing programs are not interested in a repeat of 9/11, and those who defend these programs are not dismissive of civil liberties,” he said. “The challenge is getting the details right, and that’s not simple.”

His most substantive reforms include declassifying some of the decisions of the Foreign Intelligence Surveillance Court, which rules on intelligence agencies’ ability to conduct “our most sensitive intelligence activities.”  He also called on Congress to establish a “panel of advocates” to weigh in on behalf of the privacy rights of the public.

The Court will now have to rule on any use of Section 215 of the PATRIOT Act, which allows for bulk collection of metadata that the president points out does not include the content of phone calls or the names of the participants but other metadata, which could be used to identify the participants or otherwise limit their privacy.

“The telephone metadata program under Section 215 was designed to map the communications of terrorists, so we can see who they may be in contact with as quickly as possible,” he said, justifying the practice. “This capability could also prove valuable in a crisis.”

However, the anecdote he used to justify the program — “One of the 9/11 hijackers – Khalid al-Mihdhar – made a phone call from San Diego to a known al Qaeda safehouse in Yemen. NSA saw that call, but could not see that it was coming from an individual already in the United States” — was recently disputed in an article by Lawrence Wright in The New Yorker.

Few critics of the president’s record on civil liberties will be satisfied with reforms that narrow the scope of surveillance — for instance, limiting the so-called “hops” or degrees of separation from a terrorist target that an agency can search to two from three — without drastically unwinding the efforts.

Glenn Greewald — the journalist who first published Snowden’s documents — called the speech a “publicity stunt” before Obama spoke a single word.

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