Courtesy of reports in the Times and elsewhere, we already pretty much know what restrictions on the surveillance state President Obama is going to announce in a speech planned for Friday: very few. Far from taking the National Security Agency to task for the flagrant breaches of individual privacy that Edward Snowden has revealed, Obama is set to reject some of the main recommendations contained in a report by his own Review Group on Intelligence and Communications Technologies, which was itself hardly a radical document.
The news reports say that Obama has rejected the Review Group’s main recommendation, which was to end the N.S.A.’s bulk collection of metadata, such as the phone records of hundreds of millions of Americans. The panel, which issued a long report in December, said the N.S.A. should continue to have access to these records under the auspices of the secretive Foreign Intelligence Surveillance Court, but it said that the data should be held by the phone companies, or by a third party. Having thrown out this suggestion, Obama is set to leave the current system in place and hand its ultimate fate over to Congress, which is tantamount to doing nothing.
Assuming the reports are right, Obama won’t dismantle a single N.S.A. program, not even those that have been involved in spying on the leaders of America’s allies and hacking into the databases of companies like Google and Facebook without any court approval. He won’t end the practice by which the N.S.A and other government agencies, such as the Federal Bureau of Investigation, can obtain access to Americans’ data records simply by issuing a so-called National Security Letter, which doesn’t require the rubber stamp of the FISA court.
“If the speech is anything like what is being reported,” Anthony D. Romero, the executive director of the American Civil Liberties Union, told the Times, “the President will go down in history for having retained and defended George W. Bush’s surveillance programs rather than reformed them.” Evidently, the President’s only concessions to privacy concerns will be the establishment of a public advocate in the FISA court, the introduction of new rules modestly restricting the number of metadata records that the N.S.A. can look at, and the recognition that overseas citizens have some limited privacy rights.
It is frequently reported that Obama, a former lecturer in constitutional law, has been shocked to learn that so many Americans don’t trust him on this issue. A front-page piece in today’s Times, by Peter Baker, repeats this suggestion, quoting his advisers. But isn’t the public’s skepticism perfectly justified? Having run for President in 2008 as a strident critic of the Bush Administration’s intelligence ambitions, and not hesitating to label some of its domestic spying programs illegal, the President has emerged as the most prominent enabler and defender of the current system.
Opinion polls show that almost two-thirds of Americans don’t like the federal government collecting data about online communications and Internet-browsing histories. The President says it’s necessary to protect the national interest. Technology companies express outrage about the N.S.A. breaking into their data centers and collecting information at will. The President does nothing to stop it. Civil-liberties advocates say that, at the very least, intelligence and law-enforcement agencies should have to seek court approval before they can order telephone and Internet companies to hand over personal information. Obama, according to the Times, has “decided not to require court approval in every case, but might still require it in some cases.”
In his speech on Friday, the President will probably follow his usual tack and seek to portray himself as a reasonable man hewing to the middle ground between opposing views. In this instance, though, such a depiction doesn’t withstand inspection.
Justice Sonia Sotomayor, whom Obama appointed to the Supreme Court, is a moderate. She has questioned the official line that phone and Internet logs, as business records, aren’t covered by the Fourth Amendment right to privacy. In a 2012 case, she wrote, “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.” Patrick Leahy, the Democratic Senator from Vermont, is a moderate. He has co-sponsored a bill that would end the N.S.A.’s bulk collection of metadata. Anne-Marie Slaughter, the former director of policy planning at the State Department, is a moderate. She has called Snowden a “whistle-blower.”
It would be a bit of a stretch to describe all five members of the president’s Review Group as moderates on this issue: one of them, Michael J. Morell, is a former acting director of the C.I.A. I noted last month, when the Review Group’s report was published, that it didn’t go far enough in many areas, such as restricting the N.S.A.’s hacking, and preventing it from spying on aid agencies and other harmless international groups. But it did confront the central issue of whether the government should routinely requisition the personal communications records of virtually every American. And it acknowledged the obvious: “some of the authorities that were expanded or created in the aftermath of September 11th unduly sacrifice fundamental interests in individual liberty, personal privacy, and democratic governance.”
Obama used to make this argument all the time. But when Snowden presented him with the chance to do something about it, he didn’t do very much. Why not? One possibility is that he was always more sympathetic to the Bush Administration’s policies than he let on, and he was just using the civil-liberties argument to gee up his liberal base. Perhaps, as Baker suggests, sitting in the Oval Office and having access to daily intelligence reports changed his views. Or maybe he fears being second-guessed if he makes substantial reforms and there’s another terrorist attack.
The second and third explanations sound the most plausible. In this area, as in others, the President is adopting a safety-first attitude. From his perspective, that’s understandable. Some, though not I, would say it’s justifiable. But please, let’s not hear any more about how we can trust him to protect our privacy.
Photograph by Alex Wong/Getty.
