The Surveillance Speech: A Low Point in Obama’s Presidency

by Conor  Friedersdorf

Last Friday, President Obama spoke to us about surveillance as though we were precocious children. He proceeded as if widespread objections to his policies can be dispatched like a parent answers an eight-year-old who has formally protested her bedtime. He is so proud that we’ve matured enough to take an interest in our civil liberties! Why, he used to think just like us when he was younger, and promises to consider our arguments. But some decisions just have to be made by the grownups. Do we know how much he loves us? Can we even imagine how awful he would feel if anything bad ever happened while it was still his job to ensure our safety?

By observing Obama’s condescension, I don’t mean to suggest tone was the most objectionable part of the speech. The disinformation should bother the American people most. The weasel words. The impossible-to-believe protestations. The factually inaccurate assertions.

They’re all there.

* * *

The passage:

… I called for a review of our surveillance programs. Unfortunately, rather than an orderly and lawful process to debate these issues and come up with appropriate reforms, repeated leaks of classified information have initiated the debate in a very passionate but not always fully informed way.

But Obama has always had it within his power to initiate a fully informed debate. The state secrets that he guards, rightly or wrongly, are the biggest obstacle to a fully informed debate. Love the leaks or hate them, they’ve indisputably made Americans, including some members of Congress, muchbetter informed than they were before about NSA surveillance, not less informed. And as any student of the civil-rights era ought to know, debate need not be “orderly” to be salutary.

The passage:

I’m also mindful of how these issues are viewed overseas because American leadership around the world depends upon the example of American democracy and American openness, because what makes us different from other countries is not simply our ability to secure our nation.

It’s the way we do it, with open debate and democratic process.

But his surveillance politics and policy, whatever one thinks of it, has never been characterized by open debate. There are secret sessions conducted by Congressional committees — and secret hearings conducted by FISA court judges — where hugely consequential policy decisions are made. If the real world depends on the example of American openness, we are failing the world. The example we’re setting is that it’s okay for governments to secretly intercept the private communications data of all citizens. How would that work out in most countries? The official secrecy surrounding the NSA has already corroded U.S. democracy in real ways.

The passage:

I will work with Congress to pursue appropriate reforms to Section 215 of the Patriot Act, the program that collects telephone records. As I’ve said, this program is an important tool in our effort to disrupt terrorist plots, and it does not allow the government to listen to any phone calls without a warrant. But given the scale of this program, I understand the concerns of those who would worry that it could be subject to abuse.

What a sly formulation. It’s true that Section 215 of the Patriot Act doesn’t allow government “to listen to any phone calls without a warrant” — and also true (for complicated reasons involving a variety of provisions, including Section 702, and much dubious wordplay) that the government doeslisten to the phone calls of innocent Americans who are not suspected of terrorism, often in a way that students of American history liken to “general warrant” Fourth Amendment violations. Sometimes, according to The Guardian and Senator Ron Wyden, no warrant is needed.

Obama is exploiting the fact that most people don’t know Section 215 from any other provision of surveillance law. It would be as if I said to an employee at a company I owned, “nothing in the Occupational Safety and Health Administration code allows me to monitor the contents of your work email.” That’s true, but misleading. It’s other parts of the law that confer the authority to spy.

The passage:

I’ll work with Congress to improve the public’s confidence in the oversight conducted by the Foreign Intelligence Surveillance Court …. The FISC was created by Congress to provide judicial review of certain intelligence activities so that a federal judge must find that our actions are consistent with the Constitution. However, to build greater confidence, I think we should consider some additional changes to the FISC. One of the concerns that people raise is that a judge reviewing a request from the government to conduct programmatic surveillance only hears one side of the story, may tilt it too far in favor of security, may not pay enough attention to liberty.

And while I’ve got confidence in the court and I think they’ve done a fine job, I think we can provide greater assurances that the court is looking at these issues from both perspectives — security and privacy. So specifically, we can take steps to make sure civil liberties concerns have an independent voice, in appropriate cases, by ensuring that the government’s position is challenged by an adversary.

But a judge’s job is not balancing liberty and security, as if there is an objectively correct degree of “tilt” that they can settle upon. Judges are there, first and foremost, to ensure that the Constitution is not violated, and then to ensure that the law is being followed. The rule of law is the most important safeguard that secures the life and liberty of Americans, and any legal regime that permits the Constitution to be violated in secret is “tilting” away from long-term security.

In fact, the whole concept of a secret court is misguided, and it is astonishing that Obama, or anyone aside from partisan Republicans, would trust a court composed entirely of one man’s appointees. What if I told you, Democrats, that henceforth, abortion jurisprudence, voting-rights jurisprudence, labor law, or really any area of U.S. Constitutional law would be decided in secret and always by judges who John Roberts chose? How much confidence would you have in the outcome of decisions made in that court? Yet that is how the FISA court works. And we’re supposed to trust that the secret court’s decisions are getting everything correct!

The passage:

… We can and must be more transparent.

So I’ve directed the intelligence community to make public as much information about these programs as possible. We’ve already declassified unprecedented information about the NSA, but we can go further. So at my direction, the Department of Justice will make public the legal rationale for the government’s collection activities under Section 215 of the Patriot Act.

One of the least defensible practices of the Obama Administration is hiding the legal rationale for its actions, as if secret law is as legitimate as hiding the names of CIA operatives or nuclear codes. There shouldn’t be any section of the Patriot Act, or any other law, that cannot be comprehended without seeing a classified legal memo generated in the Office of Legal Counsel.

Simply telling us what the law is isn’t some step beyond already unprecedented transparency. In fact, post-9/11 America has been setting new state-secrets precedents.

Also, it is possible — perhaps unwise, perhaps even unsafe, but indisputably “possible” — to make all information about surveillance public. Obama invoking what’s “possible” to release as his standard is tantamount to obscuring his actual standard, whatever it is. Dissent about what ought to be released is present within the federal government and even the executive branch itself.

Invoking what is “possible” to release begs the question at best.

The passage:

And to others around the world, I want to make clear once again that America is not interested in spying on ordinary people. Our intelligence is focused above all on finding the information that’s necessary to protect our people and, in many cases, protect our allies.

Another misleading locution. America may not be “interested” in spying on ordinary people, but it is doing so daily. It is spying on millions of ordinary people. What those people worry about is that they’re being spied on, not whether the spying party is interested in them particularly or only incidentally.

The passage:

The men and women of our intelligence community work every single day to keep us safe because they love this country and believe in our values. They’re patriots.

Patriots are perfectly capable of violating the rights of their fellow citizens. And while the vast majority of NSA staffers and contractors may be patriots, some of them may not be patriots; some of them may even be dishonest, or well-intentioned but unable to resist abusing the authority they’ve been given, or determined from the beginning to act in the most nefarious way possible. All large organizations employ some bad apples.

The passage:

If the concern was that somehow this was the only way to get this information out to the public, I signed an executive order well before Mr. Snowden leaked this information that provided whistle-blower protection to the intelligence community for the first time.

Obama’s order would not have gotten the information out to the public.

And the Obama Administration has zealously persecuted a number of national security whistleblowers. I’ve yet to hear any whistleblower assert that Snowden could have dealt with this internally. Even the senators who thought Americans’ rights were being violated could do little to stop it.

The passage:

… A general impression has, I think, taken hold, not only among the American public but also around the world, that somehow we’re out there willy-nilly just sucking in information on everybody and doing what we please with it. Now, that’s not the case. Our laws specifically prohibit us from surveilling U.S. persons without a warrant. And there are whole range of safeguards that have been put in place to make sure that that basic principle is abided by.

Team Obama is collecting information on everybody! It isn’t being done willy-nilly, but deliberately and comprehensively. And why would limits on surveilling Americans reassure foreigners?

The passage:

QUESTION: I wanted to ask you about your evolution on the surveillance issues. I mean, part of what you’re talking about today is restoring the public trust. And the public has seen you evolve from when you were in the U.S. Senate to now. And even as recently as June, you said that these — the process was such that people should be comfortable with it. And now you’re saying — you’re making these reforms and people should be comfortable with those. So why should the public trust you on this issue and why did you change your position multiple times?

PRESIDENT OBAMA: Well, I think it’s important to say, Carol, first of all, I haven’t evolved in my assessment of the actual programs. I consistently have said that when I came into office I evaluated them. Some of these programs I had been critical of when I was in the Senate.

This is jaw-dropping.

Let’s look more closely at what Carol calls Obama’s “evolution.” As a U.S. senator, Obama “co-sponsored a 2007 bill, introduced by Senator Russ Feingold (D-Wisconsin) that would have required the government to demonstrate, with ‘specific and articulable facts,’ that it wanted records related to ‘a suspected agent of a foreign power‘ or the records of people with one degree of separation from a suspect,” Karen Brandeisky notes at Pacific Standard.

In addition:

In February 2008, Obama co-sponsored an amendment… which would have further limited the ability of the government to collect anycommunications to or from people residing in the U.S. The measure would have also required government analysts to segregate all incidentally collected American communications. If analysts wanted to access those communications, they would have needed to apply for individualized surveillance court approval. The amendment failed 35-63. Obama later reversed his position and supported what became the law now known to authorize the Prism program.

There’s more:

Feingold’s 2008 amendment, which Obama supported, would have also required the Defense Department and Justice Department to complete a joint audit of all incidentally collected American communications and provide the report to congressional intelligence committees. The amendment failed 35-63. The Inspector General of the Intelligence Community told Senators Ron Wyden (D-Oregon) and Mark Udall (D-Colorado) last year that it would be unfeasible to estimate how many American communications have been incidentally collected, and doing so would violate Americans’ privacy rights.

And also:

Obama co-sponsored a 2007 measure that would have required the government to tell defendants before it used any evidence collected under the controversial section of the Patriot Act.

And then there’s the fact that:

As a senator, Obama wanted the attorney general to submit a public report giving aggregate data about how many people had been targeted for searches … Despite requests from Microsoft and Google, the Justice Department has not yet given companies approval to disclose aggregate data about surveillance directives.

There’s even more in the excellent Pacific Standard article. But Obama stands before us and spins, as if his position on this stuff hasn’t changed at all. It’s one of the most insulting lines he delivered.

The passage:

… If you look at the reports, even the disclosures that Mr. Snowden’s put forward, all the stories that have been written, what you’re not reading about is the government actually abusing these programs and, you know, listening in on people’s phone calls or inappropriately reading people’s emails. What you’re hearing about is the prospect that these could be abused. Now part of the reason they’re not abused is because they’re — these checks are in place, and those abuses would be against the law and would be against the orders of the FISC.

The act of collecting and storing the private information of tens of millions of innocent Americans, as well as whatever you want from everyone else on earth, is itself an abuse of power.

Also, there is no reason that the public would be aware of abuses in these very recently revealed programs even if they had happened on multiple occasions. The whole programs were kept from us for years! Why would we expect to know if an analyst was checking up on his ex-girlfriend, or if an overzealous Obama supporter was targeting Mitt Romney backers in 2012? How many years did it take before the abuses documented by the Church Committee came to light?

There is, finally, clear evidence that at least some unlawful abuse has happened already (emphasis added):

Here is language that the Obama Administration itself released on Friday:

Since the telephony metadata collection program under Section 215 was initiated, there have been a number of significant compliance and implementation issues that were discovered as a result of DOJ and ODNI reviews and internal NSA oversight. In accordance with the Court’s rules, upon discovery, these violations were reported to the FISC, which ordered appropriate remedial action. The incidents, and the Court’s responses, were also reported to the Intelligence and Judiciary Committees in great detail. These problems generally involved human error or highly sophisticated technology issues related to NSA’s compliance with particular aspects of the Court’s orders. The FISC has on occasion been critical of the Executive Branch’s compliance problems as well as the Government’s court filings. However, the NSA and DOJ have corrected the problems identified to the Court, and the Court has continued to authorize the program with appropriate remedial measures. 

So we’ve had (1) human failure and technological failure, (2) sections of FISA violated, and (3) a FISA-court opinion that some of what the NSA did violated the Constitution. We are, in fact, reading about abuses! They’re just murky, because Team Obama is deliberately keeping the details secret.

The passage:

I think the main thing I want to emphasize is, I don’t have an interest and the people of the NSA don’t have an interest in doing anything other than making sure that where we can prevent a terrorist attack, where we can get information ahead of time, that we’re able to carry out that critical task. We do not have an interest in doing anything other than that.

Rights can be violated in the pursuit of noble and legitimate interests. Perhaps FDR didn’t have an interest in doing anything other than winning WWII. The Americans of Japanese ancestry put into internment camps had their rights violated just as much as if his motive was personal animus.

As well, Obama’s claim is incorrect. He has all sorts of interests besides preventing terrorist attacks — political interests, ideological interests, legacy interests, ego interests. The folks at the NSA want to stop terrorist attacks. But they have other interests too. Many want to increase the power they enjoy in their narrow realm; they want to perpetuate and expand their agency … and some, like Snowden, have totally unexpected interests, like transparency. It caused him to flee with all sorts of sensitive information. Am I to believe that no employee or contractor would possibly abscond for less noble reasons? Or break agency rules in secret for nefarious purposes?

That’s absurd.

* * *

The surveillance debate is arguably the most important of our era.

Yet throughout the surveillance debate, the executive branch, including Obama, has lied, obfuscated, and misled the American people in a variety of ways. Before Edward Snowden’s leaks, they could at least tell themselves that the disinformation was serving the purpose of keeping al-Qaeda operates from learning the general contours of our surveillance capabilities. But today, when that excuse has long since expired, Obama is still lying, obfuscating, and misleading the American people. In doing so, he is preventing representative democracy from functioning as well as it might. With the stakes so high, and his performance so dubious in so many places, Friday’s speech has got to be one of the low points of his presidency.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs.