President Obama gave a rather perplexing speech on reforming NSA surveillance today – perplexing because there wasn’t much in the way of “reform” going on, despite high expectations to the contrary. It was actually more like a public-relations performance designed to make Americans more comfortable with the surveillance state, which is evidently here to stay.
Does it make you feel any better to know that Paul Revere was the spiritual grandfather of all-encompassing, indiscriminate metadata collection? Obama kicked off his speech with a little history of American spycraft (transcript courtesy of the Washington Post):
At the dawn of our Republic, a small, secret surveillance committee, born out of the Sons of Liberty, was established in Boston. And the group’s members included Paul Revere. At night, they would patrol the streets, reporting back any signs that the British were preparing raids against America’s early patriots.
Throughout American history, intelligence has helped secure our country and our freedoms.
In the Civil War, Union balloons’ reconnaissance tracked the size of Confederate armies by counting the number of campfires. In World War II, codebreakers gave us insights into Japanese war plans. And when Patton marched across Europe, intercepted communications helped save the lives of his troops.
After the war, the rise of Iron Curtain and nuclear weapons only increased the need for sustained intelligence gathering. And so in the early days of the Cold War, President Truman created the National Security Agency, or NSA, to give us insights into the Soviet Bloc and provide our leaders with information they needed to confront aggression and avert catastrophe.
Throughout this evolution, we benefited from both our Constitution and our traditions of limited government. U.S. intelligence agencies were anchored in a system of checks and balances, with oversight from elected leaders and protections for ordinary citizens. Meanwhile, totalitarian states like East Germany offered a cautionary tale of what could happen when vast unchecked surveillance turned citizens into informers and persecuted people for what they said in the privacy of their own homes.
This eventually led into Vietnam-era abuses of surveillance power – he mentioned government surveillance of the civil-rights movement several times – the geopolitical chaos of Soviet collapse, and the challenge of terrorism. If you suspect this journey on the Wayback Machine wasn’t going to end with “… and that’s why I’m going to tell the NSA to knock it off,” you’re right.
And, of course, if you don’t think the NSA should knock it off, there was not much to quibble with. The big change is that the NSA’s metadata will now be outsourced to a third-party storage matrix. That might lead to sweaty nightmares of Obama handing a few terabytes of private data over to the goobers who created HealthCareDotGov, although on second thought, maybe that’s the best way to ensure it becomes extremely difficult to access. Wouldn’t you feel better knowing your metadata was shielded by few dozen 404 error messages, server crashes, incomprehensible web forms, and half-written database software?
So it will be more difficult for government analysts to access the data, and they’re supposed to much more careful about what information they gather, particularly when it comes to spying on foreign leaders – a topic of considerable international embarrassment for the Administration, but not really a top concern for the Americans who worry about their webcams quietly turning into instruments of government surveillance. Here were the first two concrete reforms President Obama outlined:
First, I have approved a new presidential directive for our signals intelligence activities both at home and abroad. This guidance will strengthen executive branch oversight of our intelligence activities. It will ensure that we take into account our security requirements, but also our alliances, our trade and investment relationships, including the concerns of American companies, and our commitment to privacy and basic liberties. And we will review decisions about intelligence priorities and sensitive targets on an annual basis so that our actions are regularly scrutinized by my senior national security team.
Second, we will reform programs and procedures in place to provide greater transparency to our surveillance activities and fortify the safeguards that protect the privacy of U.S. persons. Since we began this review, including information being released today, we’ve declassified over 40 opinions and orders of the Foreign Intelligence Surveillance Court, which provides judicial review of some of our most sensitive intelligence activities, including the Section 702 program targeting foreign individuals overseas and the Section 215 telephone metadata program.
And going forward, I’m directing the director of national intelligence, in consultation with the attorney general, to annually review for the purposes of declassification any future opinions of the court with broad privacy implications and to report to me and to Congress on these efforts.
To ensure that the court hears a broader range of privacy perspectives, I’m also calling 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.
Trust him, America! He couldn’t be bothered to ask a single question about how his “signature achievement” was coming along during the three years before ObamaCare launched, but he ‘s all over this NSA spying thing, and he’s determined to make them conduct the kind of oversight you probably thought they were already doing.
The public’s response to intelligence gathering always will boil down to questions of trust, to some extent, because it’s simply impossible to tell the public everything it would require to make a fully informed decision. Secrets must be kept. Critics worry that the balance of secrecy has tipped, requiring a level of trust the public can’t give to any Administration, particularly this one. The Obama Administration’s handling of the IRS scandal doesn’t exactly fill us with confidence that our trust will not be abused. And if some of this data is now going to be offloaded to private third parties, well, that’s someone else we’ll have to trust.
The Senate’s eminent critic of the surveillance state, Senator Rand Paul (R-KY), rendered his opinion of Obama’s speech with a bit of sarcasm: “I think what I heard was, if you like your privacy, you can keep it.” He predicted the question of these broad-based data gathering operations would ultimately be decided by the Supreme Court.
Senator Paul also turned Obama’s portrayal of Paul Revere as the first NSA analyst by noting that the Fourth Amendment was directly intended as a rebuke to broad-based searches conducted without individual charges and warrants, a practice the American colonists were not pleased with.
Paul also wasn’t reassured by plans to outsource metadata storage to a private company, wondering if that would mean the same chaps who thought that nice young Edward Snowden seemed like a trustworthy and reliable fellow. “It’s not about who holds it,” said Paul. “I don’t want them collecting every American’s information.”
He thought that more precise use of conventional warrants would make it unnecessary to conduct indiscriminate surveillance, and didn’t trust executive-branch agencies to essentially oversee themselves, seeming unconvinced by President Obama’s promises that more outside review would take place in the future. Senator Paul, and other critics of Obama’s announced reforms, noted that the judicial review mentioned by the President would be conducted by courts that could be described as very friendly to the government, such as the secretive Foreign Intelligence Surveillance Court, which almost never says no to surveillance requests.
It was curious to hear the President effectively say he understands why people are reluctant to trust the surveillance state, considering its recent and historical abuses… but we’re going to have to learn to love it anyway. His critics have pointed out the immense gulf between his opposition to broad-based intelligence gathering when he was a senator, and his defense of the practice as President; to his credit, he acknowledged that difference in today’s speech. Fair enough to say that what he learned when he started getting presidential intelligence briefings changed his attitude, and certainly he’s not at liberty to hold a candid discussion of what he learned with the American people.
But the NSA controversy takes place amid an even larger debate about the restraints on power, the amount of trust Americans can be expected to place in their government, and whether the government should be bound by what it regards as arbitrary and inconvenient legal restrictions. Barack Obama is the person who put that debate on the front burner. His conduct in other matters makes him an unconvincing champion of all-seeing national intelligence, in defiance of the spirit that clearly animated the crafting of the Fourth Amendment.