What Happened to Obama’s NSA Reforms?

Two months ago, the President embraced limited reforms to domestic spying. So far, he's produced limited results.

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President Barack Obama answers questions during a press conference in the East Room of the White House August 9, 2013 in Washington.

Early in August, before Middle Eastern dramas from Egypt to Syria to Iran began consuming the White House, Barack Obama’s biggest headache was the bipartisan furor over government surveillance programs run by the National Security Agency. At an August 9 press conference, the president sought to assuage public discontent with a series of promises about coming reforms and new transparency for the NSA’s activities. Given the secrecy and confusion, Obama said, it was time to “put the whole elephant out there.”

Nearly two months later the safari continues, with the elephant still mostly obscured in the bushes. Many details of the NSA’s programs remain opaque, and Obama has publicly proposed no major reforms. But as Congress gets ready to take action of its own—and with a new oversight board due to issue its first interim report later this month—the issue is returning to the fore. And while Obama has taken some action, his top intelligence officials continue to urge Congress not to place new limits on their surveillance powers.

Obama made four promises in his August news conference, all of which are still works in progress. The first two were pledges to work with Congress to modify the how the government goes about collecting electronic communications.

Obama said he would support more oversight, transparency, and “constraints” on the use of Section 215 of the Patriot Act, which allows for the bulk collection and storage of domestic telephone records. Obama also said he wants to increase public confidence in the Foreign Intelligence Surveillance Court, the body which approves secret government surveillance requests. Specifically, Obama endorsed adding an “adversary” to FISC proceedings who would assert privacy and civil liberties concerns against the government lawyers who now ask the court for surveillance powers without being challenged before the judges.

Behind the scenes, administration officials are talking to key members of Congress about legislative steps, although the White House has not yet publicly endorsed any specific measures. And Obama’s vague call to modify Section 215 almost is unlikely to involve his support for a bill that would end bulk collection of Americans’ phone records.

Obama’s third promise was to make the surveillance programs more transparent. “I’ve directed the intelligence community to make public as much information about these programs as possible,” Obama said. Here he has made some tangible progress. That day the administration released declassified legal documents describing the legal rational for its collection of bulk phone records, although critics said the documents offered little new information. The Director of National Intelligence also created a Tumblr page that features, among other things, several declassified FISC orders and opinions. (The national security law blog Lawfare also has a comprehensive list of declassified documents related to the Foreign Intelligence Surveillance Act.) Obama also assured that the NSA would hire a full-time civil liberties and privacy officer, a job opening the agency recently posted, calling it a “completely new role” at the agency.

Despite all the released documents, administration officials are still “refusing to answer very important questions,” says Michelle Richardson, legislative counsel for the American Civil Liberties Union. Intelligence officials still decline to answer basic questions like how many Americans are affected by their surveillance programs and whether the NSA collects other data about American citizens like financial records. (The administration says the question of how many Americans are affected is not possible to answer in specific numbers.) At a hearing last month, NSA chief Keith Alexander wouldn’t confirm reports that the NSA has used cellphone signal data to track the location of Americans—although the NSA later admitted had received samples of such data for testing purposes only in 2010 and 2011.

“The president said we need to put the whole elephant out there. That absolutely has not happened,” says Richardson.

Finally, Obama promised in August to create a new independent panel to review the government’s surveillance activities. The panel would “consider how we can maintain the trust of the people [and] how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used,” Obama  said. The 60-day deadline Obama set for the panel’s first report arrives in late October. Obama would be hard-pressed to ignore strong recommendations for real reform.

But the extent of the panel’s independence is dubious. A recent AP report charged that it “has effectively been operating as an arm of the Office of the Director of National Intelligence, which oversees the NSA and all other U.S. spy efforts.” The panel’s meetings have been closed to the public. And its membership consists of figures friendly to the intelligence community, or the president, or both. Glenn Greenwald, the lawyer-blogger who has published numerous leaked documents from the former NSA contractor Edward Snowden calls the panel as “a total farce.” Other civil liberties advocates doubt that its final recommendations, due by Dec. 15, will propose real change.

That may be fine with Obama, who seems more worried about public alarm over government snooping than the surveillance itself. “When Obama speaks about the program, he leaves the impression that its existing privacy protections are sufficient, if only we knew enough to appreciate them,” Ken Roth, executive director of Human Rights Watch, recently wrote in Politico. The point of revealing the elephant isn’t to tie it down, but to assure people that it’s not Godzilla. The coming fight in Congress will show whether Obama’s response has been sufficient—or whether it’s too little and too late to stop the backlash against government surveillance.

Correction and clarification: This post has been changed to reflect that President Obama did mention the NSA’s creation of a civil liberties and privacy officer in his August 9 remarks, and that the independent panel’s 60-day deadline will arrive in late October, not next week. Also, while Keith Alexander declined to say last month whether the government collects cellphone locational data, as first written, the NSA has since disclosed that it did receive some samples of that in 2010 and 2011 for testing purposes.

MORE: The Surveillance Society

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