Obama NSA reforms: Why he can't win

In a Justice Department speech Friday, Obama is going to announce proposals for NSA reforms. Given the stridently divergent views on surveillance policy, it's a cinch that one side or the other will be unhappy.

Carolyn Kaster/AP
President Obama speaks in the South Court Auditorium in the Eisenhower Executive Office Building on the White House complex, Thursday, Jan. 16, 2014, in Washington. The president is scheduled to announce National Security Agency reforms in a speech at the Justice Department on Friday.

President Obama is scheduled to announce National Security Agency reforms in a speech at the Justice Department Friday. While the White House has yet to announce the specifics of Obama’s proposal, here’s a prediction almost guaranteed to come true: afterwards, somebody is going to be angry.

By “somebody,” we mean one side or the other in the ongoing debate as to whether NSA surveillance has gone too far, of course. The reason for this is that the NSA and its possible overreach is just the sort of security issue the president cannot win.

For the record we’ll note we’re not the only ones making this argument. “From the looks of it, pretty much everyone is going to be mad at him,” writes Dana Liebelson of Mother Jones.

On one side, Mr. Obama’s being pressed by a loud public outcry over revelations of the wide scope of NSA programs. Agency leaker Edward Snowden said he wanted to start a national conversation about secret electronic surveillance, and he’s certainly done that.

“I think Americans across the political spectrum want us to have this debate and want to have a clear understanding of what is going on,” said Sen. Patrick Leahy (D) of Vermont, chairman of the Senate Judiciary Committee, at the start of a Jan. 14 hearing on the NSA.

This public interest isn’t likely to die down. One reason for this is the shocking nature of the revelations. Snowden leaks showed that the NSA collects the metadata – time, numbers involved, etc. – of the phone calls of millions of Americans, for instance.

Plus, stuff is still coming out. A Wednesday New York Times report, partly based on Snowden-provided documents, explained how the NSA uses radio to spy on computers that aren’t connected to the Internet.

However, Obama faces pressure from the other side of this debate that’s just as intense, if not more so. Security and intelligence officials argue that there are safeguards in place to guard against any NSA abuses – and that the programs in question are needed to prevent further large-scale terrorist attacks on the US or its interests.

For a US chief executive, these points are personal. The officials in question make them to his face. Keeping Americans safe is one of a president’s highest responsibilities. The political and policy fallout from a successful terror strike would be swift and sharp, as opposed to the lingering and perhaps less intense difficulties caused by giving the NSA freer rein.

A politician naturally might try to split the difference in such a situation. That’s perhaps what Obama is trying to do, according to leaked accounts of moves he may announce on Friday.

It appears Obama will do something, but not as much as an independent panel he appointed last month has recommended. On the question of bulk telephone metadata surveillance, for instance, the president is expected to stress that it can’t continue in its present form. But he won’t propose a move the panel urged: requiring that the metadata be retained by telephone companies or some other non-governmental entity, not the NSA, in case intelligence analysts believe it needs to be searched.

Instead Obama will say that Congress should weigh in and pass changes to the program, according to reports.

Given the speed and efficiency with which lawmakers work these days, that’s tantamount to doing nothing, say privacy advocates.

“Keeping the storage of all Americans’ data in government hands and asking ‘lawmakers to weigh in’, as reported, is passing the buck – when the buck should stop with the president,” Anthony D. Romero, executive director of the American Civil Liberties Union, said in a statement.

Another widely discussed possible move would place an independent privacy advocate in the secret Federal Intelligence Surveillance Act (FISA) court, which approves spying on Americans. Obama backs this change, according to the Associated Press. But it’s been publicly opposed in recent days by a senior US district judge, John D. Bates.

“The participation of an advocate would neither create a truly adversarial process nor constructively assist the court in assessing the facts,” said Bates, who is the administrative judge of the US court system and was formerly the chief judge of the FISA court.

There is one move Obama reportedly will make that is likely to get approval from both sides of the debate – as well as from across the Atlantic and Pacific oceans. He’s expected to say that any surveillance of foreign leaders will have to be approved by top administration officials. That could ease tensions with such allies as Germany, whose chancellor, Angela Merkel, has been an NSA eavesdropping target in the past.

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