To spy on his own citizens or not to spy on them? That was the simple choice civil liberties campaigners thought President Obama faced when considering the future of the mass telephone data collection by the National Security Agency (NSA).
But while the president on Friday announced a series of reforms to bolster oversight and impose privacy protections on the mass data collection programs revealed by Edward Snowden last June, he stopped short of closing down the programs he believes keep Americans safe from terrorists.
In other words, Obama opened the door to robust reform of the National Security Agency's programs, but he did not step through it.
Though critics of the programs have called Obama’s announcement a step in the right direction, the president has emerged as a strong advocate of bulk collection. Unless Congress or the courts block the phone metadata collection or another program, the programs that were born out of the George W. Bush administration’s response to the September 11, 2001 terrorist attacks will also survive as an important piece of Obama’s legacy.
Throughout his 45-minute speech at the Department of Justice in Washington, D.C., the president defended the intelligence community and stressed the necessity of the programs that critics believe infringe on Americans' constitutional privacy rights.
“I maintained a healthy skepticism toward our surveillance programs after I became president,” he said. “What I did not do is stop these programs wholesale – not only because I felt that they made us more secure; but also because nothing in that initial review, and nothing that I have learned since, indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens.”
“In an absolute sense, the NSA that we’ve come to learn so much about is going to be still intact at the end of today’s speech,” Allan Friedman, a security and technology expert at the George Washington University, predicted before Obama’s address. “On the flip side, the fact that he is making this speech and addressing this is, I think, is important.”
It’s a point made by many of the president’s critics Friday: On the bright side, they are glad Obama is addressing some of their concerns, even though his plan will not go as far as they hoped in altering or even dismantling the programs.
Take the phone metadata collection, the most controversial and constitutionally questionable of the NSA’s surveillance programs. Obama has ordered a transition in the program so that the NSA no longer holds on to the records database.
Obama described the change as one that will end the “bulk metadata program as it currently exists, and establish a mechanism that preserves the capabilities we need without the government holding this bulk metadata.”
But to privacy advocates, changing who holds on to the data does not fix the fundamental concern they have about sweeping up Americans' private records.
"It's not about who holds it,” Senator Rand Paul, R-Kentucky, a libertarian and strong critic of the NSA’s programs, said on CNN after the speech. “I don't want them collecting every American's information."
Paul said he gave Obama an “A for effort” but a “C” on the content of his speech.
When it comes to the phone records program, the president invited Congress to weigh in on how to carry it out in the future. The result of this collaboration could ultimately produce either minor or meaningful changes.
Privacy advocates who had pushed for a civil liberties advocate at the secretly-run Foreign Intelligence Surveillance Court, a reform they hope will put a check on the intelligence community’s requests for data and implementation of far-reaching programs, got their wish. The president also scaled back the number of Americans whose data would be analyzed when the NSA runs a query in its massive phone records database.
While it’s hard to imagine a commander in chief dismantling his or her own intelligence-gathering programs, Obama was presented with the opportunity to take more drastic action. In December, a district court judge found the metadata program likely unconstitutional. Shortly thereafter, a review panel Obama himself appointed came out with surprisingly strong criticisms of the surveillance programs and called for serious reforms.
Instead, Obama chose a middle path that is in some ways typical of his approach to national security concerns.
“Obama finds himself with a national security situation that he’s not wild about, but does not have the political capital to do a complete about-face, nor is there a clear route out. And so he does some rearranging and really tries to demonstrate that what’s going on is done as consistently as possible with what he views as national values,” Friedman said. “But that statement could have been used about Guantanamo, about torture, about Afghanistan, about many, many things that the United States has done since 2000.”
It’s possible that as Congress takes on the mass surveillance programs in the coming months and years, these programs will be significantly scaled back and reformed. Perhaps more likely, as Paul noted on CNN, the Supreme Court may have the final say.