The limits on the massive surveillance of Americans that President Barack Obama announced Friday are significant and necessary. His plan, however, should be only the start to striking the right balance between national security and civil liberties.
As he often does, Obama is seeking a middle path on a controversial, fundamental issue, and he is far more eloquent describing the challenges than prescribing solutions. He is not dismantling the National Security Agency’s dragnet, and he left key details of his proposals unresolved and left their implementation largely up to Congress and intelligence agencies themselves.
Obama said that he will require the NSA, except in true emergencies, to get permission from a secret intelligence court before searching a vast repository filled daily with phone records from hundreds of millions of Americans. He also directed that the metadata – numbers called and received, and time and length of calls, but not the content – be taken out of government hands, though it’s yet to be determined who will keep the information.
The president also proposed a panel of outside experts on privacy and technology who would appear before the intelligence court in significant cases. But he didn’t say who would decide which cases qualify, or what role the advocates would have.
Obama is rejecting some key recommendations of his own handpicked review panel. For instance, the panel said the NSA should not undermine commercial software and exploit flaws to conduct surveillance and launch cyberattacks. Executives at Google, Yahoo and other Silicon Valley companies are very concerned about this – and told Obama so last month.
Also, Obama turned aside the panel’s advice that a judge’s approval should be required for so-called national security letters, used some 20,000 times a year to obtain customer information from banks, communications companies and other businesses.
With the president’s plan finally in hand, the responsibility now falls even more on Congress to enact reforms.
While it has been mostly talk so far, there are promising and serious proposals before it. A major bipartisan bill has been introduced by the primary authors of the USA Patriot Act, which passed after the 9/11 attacks and which authorized the phone data collection. The lawmakers now say that surveillance has gone too far and must be curtailed. As of Friday, the USA Freedom Act had 124 co-sponsors in the House, 64 Democrats and 60 Republicans.
The president was absolutely right that because of its unmatched technological capabilities and its role in the world, the United States has a “special obligation” to gather intelligence properly.
Obama declared that, absent a compelling national security purpose, the United States won’t eavesdrop on allied leaders. He is also extending some privacy protections to ordinary citizens in foreign countries.
For Americans, however, he seemed more intent on changing perceptions and rebuilding public confidence. He spent much of his long-awaited speech justifying the unprecedented surveillance of Americans’ daily communications, even though there is scant proof that such sweeping programs have stopped any terrorist attacks. He took pains to reassure NSA employees, downplaying their “mistakes” despite documents declassified by his administration showing that the agency repeatedly violated court orders and its own rules.
Obama chose to speak at the Department of Justice instead of the NSA headquarters, signaling the importance he puts on the rule of law, even during the fight against terror.
His speech’s unintentional timing may be more telling, however. Friday was the anniversary of President Dwight D. Eisenhower’s 1961 Cold War warning that a powerful “military-industrial complex” posed a threat to our democracy.
In the post-9/11 world, we now have a “security-industrial complex” of 16 intelligence agencies, 100,000 employees and $50 billion black budgets.
“What’s really at stake,” Obama said, “is how we remain true to who we are in a world that is remaking itself at dizzying speed.”
Much more than what the president offered Friday will be needed to meet that challenge.