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.
But the president’s willingness to respond to the critiques spurred by Snowden’s leaks does create the opportunity for Congress to act.
Senator Rand Paul (R-KY) immediately issued a statement saying he was “encouraged” that President Obama was addressing the program, but would continue his fight because “the American people should not expect the fox to guard the henhouse.”
Senators Ron Wyden (D-OR), Mark Udall (D-CO), and Martin Heinrich (D-NM), all members of the Senate’s Intelligence committee, went further than Paul, saying they were pleased that the president would “end the bulk collection of Americans’ phone records.” They called for further reforms, including an effort to “close the ‘backdoor searches’ loophole and ensure that the government does not read Americans’ emails or other communications without a warrant.”
Former intelligence analyst Joshua Foust pointed out immediately after the Snowden leaks began that it was Congress that would ultimately be responsible for reining in the surveillance state, as they had responded to news of President George W. Bush’s illegal wiretaps with legislation that enshrined and legalized the tactics without any requirement that the public be informed of the scope of the powers being granted.
“The NSA spied on Americans without even seeking a warrant, but instead of punishing them or the companies who assisted them, Congress instead gave them the go-ahead,” he wrote. “In other words, they set a new norm that made it okay for an intelligence agency to seek data about Americans.”
Will any of these efforts be enough to satisfy Snowden, whose disclosures the president said “shed more heat than light”?
The 30-year old is now living in Russia, where he has been granted temporary asylum, and said that by simply provoking a conversation that made American citizens aware of what was being done in their name, his mission was “already accomplished.”
But critics of the leaker seek to deny him whistleblower status by pointing out that many of his disclosures had nothing to do with the privacy of American citizens and instead weakened America’s ability to conduct intelligence operations and diplomacy. His defenders insist he wasn’t just trying to spark a debate about privacy vs. secrecy, but “democracy vs. authoritarianism.”
Regardless of his goal, his revelations have already given rise to a change in the way the government monitors its citizens.
The lack of satisfaction from the president’s critics and Snowden’s supporters mean more is likely to come — unless another terrorist attack prompts a new justification for more far-reaching tactics that Senator Obama may not have condoned, but President Obama has found essential.