The Complex

Obama Is Not About to Reform the NSA, Insiders Say

When President Barack Obama gives his much-anticipated speech on NSA surveillance Friday, he's unlikely to seize the opportunity to rein in the agency's vast surveillance programs. Instead, he will punt. Of the 43 recommendations from a panel that reviewed the agency's programs, Obama is expected to embrace very few, according to U.S. officials and news reports, leaving the harder task of long-term surveillance reform to Congress and the courts.

Intelligence officials, as well as privacy advocates and lawmakers who have met with White House aides in recent days, now expect that the NSA will continue to collect and retain the phone records of all Americans. That's the outcome that NSA officials have wanted since the program was revealed in June 2013 by Edward Snowden, and one that the review panel urged the president to avoid. Obama may tweak the program -- limiting the amount of time the NSA can keep those records or how broadly it can search in the database where they're stored. But it's hard to see the president's answer to what was undoubtedly the most controversial of all the surveillance programs as anything but a victory for the NSA.

Since December, Obama has heard proposals, and comments about those proposals, from a broad range of people with a stake in his ultimate decision: intelligence officials, business leaders, and privacy advocates, as well as members of Congress and their staff.

"It's a free-for-all," one senior intelligence official said about what he described as a busy, occasionally chaotic process of pitching various reforms to the administration. "Everyone wants to have their say." Another senior official said it had been difficult to discern where the president stands, in part because so many different camps wanted the chance to chime in, and Obama heard them all out while giving away little in the way of his plans, even to his political allies. "They're keeping it very close to the vest," a Democratic congressional aide said earlier this week.

Apparently anticipating that the president wouldn't fundamentally alter the NSA's phone records program, Rep. Adam Schiff, a California Democrat and one of the program's leading critics, proposed legislation on Tuesday to keep the records with phone companies, instead of at the NSA, and to require the agency to seek permission every time it wants to query a particular phone number. But Schiff doubted that lawmakers would be able to rend the phone data from the agency, calling his proposal a "very tall order for a very dysfunctional Congress."

A senior U.S. intelligence official said that NSA's leaders viewed giving the call records to phone companies as the worst of all possible arrangements, because the data would be distributed over many companies' systems, and the NSA would lose the ability to quickly scan the phone records on its own terms. Whether or not Obama agrees that's true, he is apparently unwilling to take from the agency a tool that his own advisors said was of minimal value, and that an independent assessment has concluded doesn't stop terrorist attacks. NSA Director Keith Alexander and his senior staff have for months felt that Obama hasn't defended them forcefully enough. But in the end, he may come around to their side.

Civil liberties groups were bracing Wednesday for the expectation that Obama would profoundly disappoint them. "If the speech is anything like what is being reported, the president will go down in history for having retained and defended George W. Bush's surveillance programs rather than reformed them," Anthony Romero, the executive director of the American Civil Liberties Union, said in a statement.

Surveillance opponents who planned a conference call with reporters for Thursday morning noted that the president was making his speech before an official civil liberties and oversight board releases its own findings on the NSA's spying next month. That "suggests the White House's reforms will be less significant than what the [board] recommends," the group's spokesperson said in an email to reporters.

As recently as last week, there were fresh signs that the president was unlikely to address other controversies that have received less attention, including the NSA's efforts to undermine encryption and its acquisition of so-called zero day exploits -- malicious software used to create weapons like the Stuxnet worm, which the United States deployed against Iran. The review panel recommended that Obama curtail both those practices, but the president's top lawyer spent only a few minutes discussing the issues in a meeting last week with privacy advocates, according to one participant. The White House has given no public indications that it plans to restrict the NSA's anti-encryption or its cyber warfare activities. In fact, the president has already overruled a proposal to split the NSA from the U.S. Cyber Command, which technically is in charge of military operations in cyberspace, but depends on the NSA, which has more personnel, more technical experts, and a bigger budget. The NSA is effectively in charge of cyber warfare today, and it will remain so.

The president can't be said to have ignored reform entirely, however. He is expected to support appointing a special legal advocate to participate in secret proceedings of the Foreign Intelligence Surveillance Court, over the objections of that court's former top judge. And the president may announce new restrictions on spying on foreign leaders, and perhaps citizens as well, though the details of those proposals remain gauzy.

In that respect, the administration's response to revelations of mass surveillance stands in contrast to what officials did the last time the NSA's vast spying net was exposed. In 2008, Congress and the Bush administration answered revelations of warrantless surveillance by making it easier under the law for the NSA to collect massive amounts of people's communications, and allowing the agency to conduct surveillance overseas without a warrant even when it would certainly collect some communications of Americans.

A recent poll by the Washington Post and ABC News showed that a majority of Americans disapprove of how Obama has handled NSA surveillance and think that the agency's programs intrude on their own and others' personal privacy. But fewer than half of Americans think the agency has "gone too far" in its collection of data, and majorities say Snowden's disclosures harmed U.S. national security and that he was wrong to leak classified documents to journalists.

The lack of uniform public outrage over NSA spying may be one reason Obama doesn't feel compelled to act more forcefully against the agency, in spite of the fact that some of his most stalwart progressive supporters are among the NSA's staunchest opponents. But the president has, since before he took office, shown himself to be broadly comfortable with surveillance authorities as they stand today. In 2008, Obama, then a senator, opposed the changes to surveillance law that gave the NSA new authorities, but he ended up voting for them after it was clear he'd win the Democratic presidential nomination. And last summer, in his first press conference after the Snowden revelations, Obama said the question he faced was not whether to pull up the NSA's surveillance nets, but, "How do I make the American people more comfortable?"

On Friday, we'll learn his answer.

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National Security

Spy Court Judge: These Aren’t the Reforms You're Looking For

As President Obama is mulling a series of changes to how the National Security Agency keeps tabs on the world's communications, the former top judge of the secret court that has approved much of that surveillance made an unusual public appeal Tuesday: keep the process just how it is.

John Bates, the former presiding judge of the Foreign Intelligence Surveillance Court, warned against a proposal to include in the court's proceedings an outside privacy and civil liberties advocate, who might take positions counter to the government when it seeks permission to collect huge swaths of Internet traffic, email addresses, and phone communications. Currently, only government lawyers appear before the court.

An outside attorney "would substantially hamper the work" of the court, as well as an appeals panel that also meets in secret, if that person were allowed to weigh in on "run-of-the-mill" matters, Bates wrote. That was a direct shot at a proposal by a presidentially appointed panel to include such an advocate. President Obama has taken the panel's recommendations as a guidepost for surveillance changes he will announce on Friday.

Bates' critique, which was released publicly on Tuesday by Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee, was a rare example of a sitting judge weighing in on controversial policy issues that the administration and Congress are still considering. Lawmakers have also proposed adding an outside lawyer to join the court's proceedings when judges are asked to make novel interpretations of law that affect how the government is allowed to monitor Americans.

"The participation of a privacy advocate is unnecessary and could prove counterproductive in the vast majority" of legal issues before the court, which involve case-specific facts and typically don't implicate the privacy of anyone other than the subject of surveillance, Bates said. The judge said that if the court were allowed to seek outside counsel on its own, the process would work smoother. But if a standing attorney were allowed to weigh in at will on the court's proceedings, it would be too disruptive. Bates also questioned how valuable the lawyer's contributions would be since he or she would be unable to consult with the target of surveillance and would have no ability to conduct an investigation of the facts of the case.

The judge's comments amount to a broadside of the review panel's recommendations and arrives at a time when the White House appears uncertain what modifications it will make to NSA surveillance. A senior U.S. intelligence official told Foreign Policy that Obama has not yet communicated his decision to agency leaders. He is expected to make some modifications to the most controversial of NSA's programs, including the collection and storage of Americans phone records and monitoring of foreign leaders' communications.

Bates also seemed to suggest that, despite the president and many members of Congress' claims to the contrary, the surveillance courts don't actually oversee NSA surveillance in the context of checks and balances.

"Care should be taken not to place the Courts in an ‘oversight' role that exceeds their constitutional responsibility to decide cases and controversies," Bates wrote, charting out a narrower role for the court than have many other government officials. In justifying collection of Americans' phone records and the use of blanket authorizations to vacuum up large amounts of communications data, administration officials and lawmakers have stressed that the court's approval and oversight of NSA's operations amounts to a check by the judicial branch.

Bates currently serves as the Director of the Administrative Office of the United States Courts. He acts as a liaison between Congress and the judicial branch on particular issues that affect the surveillance courts.

Separately Tuesday, the Senate Judiciary Committee heard testimony from the five members of the panel that reviewed NSA surveillance. The panel made 43 recommendations for the president's consideration. But nearly the entire hearing focused on the NSA's collection of Americans' phone records and avoided other controversial agency programs, such as its efforts to undermine encryption standards.

The panel members said they unanimously agreed that the government should not hold onto those records, and that they should be stored either with phone companies or a third party. Lawmakers and privacy experts who met last week with Obama and his chief counsel have said that the president is likely to make some modifications to that program. But it's not a foregone conclusion that he will instruct the data be stored somewhere other than NSA, they said.

Paul J. Richards / AFP