While some are hopeful, civil libertarians remain dubious...
By Brad Friedman on 1/17/2014, 5:36pm PT  

Proving once again that he is neither the radical reformer the Right pretends that he is, and that the non-Right had hoped he would be, President Obama attempted to conservatively thread an impossible needle in his speech today [full transcript] calling for a number of reforms to the government's current, sweeping collection of the private telephone data of Americans who are in no way related to terrorism investigations.

Once again, while ignoring many of the recommendations offered by his own special commission convened to make such recommendations for reform of NSA surveillance and other intelligence gather techniques, Obama is trying to split the baby and, in doing so, appears to be gaining the great admiration of...largely no one.

During a speech at the Dept. of Justice on Friday, he announced what he described as "a series of concrete and substantial reforms that my administration intends to adopt administratively or will seek to codify with Congress." Those reforms are, in fact, a series of limited changes that, almost all honest brokers agree, would never have happened were it not for the historically-important leaks by former NSA contractor turned whistleblower Edward Snowden. The President side-stepped what should have been "thanks" offered to the now federally-charged fugitive forced into political asylum in Russia.

"Given the fact of an open investigation, I'm not going to dwell on Mr. Snowden's actions or his motivations," the President said, before taking a shot at him by referencing the importance of "the fidelity of those entrusted with our nation's secrets" and "the sensational way in which these disclosures have come out." Those disclosures, of course, led to this moment and these reforms, however meager and/or cosmetic they may turn out to be. "Regardless of how we got here though," Obama continued quickly, in hopes of marginalizing the facts of Snowden's contributions to the reality of the moment.

Since he was not given his proper due this afternoon by the President himself, it fell to the Huffington Post's front page splash today to offer exactly that...

As to the substance of the speech, the one aspect of Obama's announced reforms that is receiving the most attention concerns the bulk collection of American phone records. While he said the government will no longer keep those records, he said the collection itself will continue, though the information will be held by a yet-to-be-determined third party and only queried by government officials on an as-needed basis after receiving approval from a court authority.

We'll reserve judgement on the particulars, at least until this non-governmental third-party is revealed, but it sounds a lot like that would be a corporate third-party. While that might (justifiably) outrage some, we're talking about this (theoretically corporate) third-party holding on to data that is already collected by corporate third-parties in the first place (phone companies) before being passed on to the government, as per (theoretical) approval of the secret Foreign Intelligence Surveillance Court (FISC).

So, we won't "collect" or "keep" the data anymore, says Obama, but we'll retain access to it, as needed, while some unknown body hangs on to it. Baby split. Few happy.

"Having the telephone companies or other non-governmental entities responsible for holding this information might well make it far less private and secure than it is currently," said Maine's moderate Republican Sen. Susan Collins in a statement emailed to The BRAD BLOG late today. "Proposed #NSA reforms don't go far enough," tweeted California Democratic Rep. Loretta Sanchez, a member of the Congressional Progressive Caucus as well as of the Armed Services and Homeland Security committees. "Need hard limits on data collection type & storage time, & a privacy advocate throughout process," she added.

War and Surveillance State hawks like NY's Republican Rep. Pete King, however, was happy. "Pres Obama NSA speech better than expected. Most programs left intact," he tweeted. While, curiously, two of the loudest opponents of the bulk collection of data under the Patriot and Foreign Intelligence Surveillance Acts, Sen. Ron Wyden (D-OR) and and Mark Udall (D-CO), were encouraged, if moderately so, by the President's announced reforms.

"After years of work, it's good to see 1st steps to reform taken today," Wyden tweeted, "But make no mistake, many more need to come." Udall echoed the measured optimism: "After my years of #bipartisan work & ongoing efforts, Pres. Obama took big steps forward today on #NSA reform."

Republican Senator Rand Paul, a likely 2016 Presidential candidate who claims to be a civil libertarian, was more pointed in his critique. "If you like your privacy you can keep it," he tweeted in a shot against Obama's now-infamous promises about the Affordable Care Act ("Obamacare"), adding a graphic in a follow-up tweet which he described as "the cliff notes version" of Obama's speech:

As to civil liberties organizations who have long been calling for reform to our massive surveillance state, the response was mixed there as well.

"We are encouraged by the reforms announced by President Obama today," Elizabeth Goitein, the co-director of the Liberty and National Security Program at the Brennan Center for Justice said in an emailed statement. "He has opened the door to ratcheting back NSA surveillance of innocent Americans and non-citizens alike. But for every answer he gave, there are several new questions about how he plans to implement these changes. Ultimately, the full effect of these reforms remains to be seen."

"The president's speech outlined several developments which we welcome," said the ACLU's Executive Director Anthony Romero. "However, the president's decision not to end bulk collection and retention of all Americans' data remains highly troubling. ... But the president should end - not mend - the government's collection and retention of all law-abiding Americans' data." Romero went on to describe that collection and retention of data as "a textbook example of an 'unreasonable search' that violates the Constitution."

In all, Spencer Ackerman and Dan Roberts of the UK's Guardian summed up the President's most noteworthy proposed reforms this way:

• The government will no longer store the phone call information of millions of Americans. But he did not say who should maintain the information, instead giving the intelligence community 60 days to come up with options.

• Intelligence agencies must, with immediate effect, apply to the secret Fisa court for judicial approval to access Americans' phone records.

• The secret Fisa court should be reformed to include a panel of independent advocates to provide a voice in "significant cases".

• The NSA will not spy on the heads of state and governments of allies, and said some further protections would be given to foreign citizens whose communications were caught up in the agency's dragnet.

• The US government had to be held to a "higher standard" than private corporations that store user data or foreign governments that undertake their own surveillance.

Obama said a balance had to be struck between competing demands. "We have to make some important decisions about how to protect ourselves and sustain our leadership in the world, while upholding the civil liberties and privacy protections that our ideals and our constitution require," he said.

Journalist Glenn Greenwald, who has broken many of the news items related to the leaked documents from Snowden, which brought us to this moment, was, not surprisingly, largely skeptical about the announced reforms.

"To be sure, there were several proposals from Obama that are positive steps," Glennwald wrote this afternoon after the President's speech. "A public advocate in the Fisa court, a loosening of 'gag orders' for national security letters, removing metadata control from the NSA, stricter standards for accessing metadata, and narrower authorizations for spying on friendly foreign leaders (but not, of course, their populations) can all have some marginal benefits."

"But even there," he added, "Obama's speech was so bereft of specifics --- what will the new standards be? who will now control Americans' metadata? --- that they are more like slogans than serious proposals."

Greenwald's main critique, however, was aimed at what he described as "plainly cosmetic 'reforms'". He described Obama and the government's overall response to the Snowden revelations as the predictable way in which the U.S. government has historically responded to similar disclosures of damaging revelations and crises...

The crux of this tactic is that US political leaders pretend to validate and even channel public anger by acknowledging that there are "serious questions that have been raised". They vow changes to fix the system and ensure these problems never happen again. And they then set out, with their actions, to do exactly the opposite: to make the system prettier and more politically palatable with empty, cosmetic "reforms" so as to placate public anger while leaving the system fundamentally unchanged, even more immune than before to serious challenge.

He writes that similar "reforms" were enacted after the revelations by the 1970s Church Committee following Watergate; again after the 2005 revelations of the Bush Administration's warrantless eavesdropping program when, in 2008, Congress merely passed legislation to make the illegal program a "legal" one (which has no effect on its Constitutionality, of course); and after the 2008 financial crisis, when, as Greenwald writes, Congress "enacted legislation that left the bankers almost entirely unscathed, and which made the 'too-big-to-fail' problem that spawned the crises worse than ever."

Obama's "proposals will do little more than maintain rigidly in place the very bulk surveillance systems that have sparked such controversy and anger," Greenwald argues, charging that such actions have been "Obama's primary role in our political system."

"He prettifies the ugly; he drapes the banner of change over systematic status quo perpetuation; he makes Americans feel better about policies they find repellent without the need to change any of them in meaningful ways. He's not an agent of change but the soothing branding packaging for it."

Lest you get the impression we're quoting Greenwald uncritically here, we are not yet quite as cynical as he his. While the case he offers is very difficult to argue with, and he will likely be proven absolutely correct as he usually is, we'll remain, as ever, both open to and skeptical of today's announced reforms. On the other hand, if they turn out to be less "cosmetic" than Greenwald and others suggest, we will be pleasantly surprised. When it comes to the Obama Administration, however, we haven't been pleasantly surprised for years.

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Article Categories: NSA, War On Terror, National Security, Rights And Freedoms, U.S. Constitution, Dept. of Justice, Barack Obama, Glenn Greenwald, FISA