PJ Media

Lawmakers Say Devil in Obama's NSA Reform Plan Is in the Details — Or Lack of Them

WASHINGTON — Not long before President Obama unveiled his plans for NSA reforms today, a senior White House official stressed that “we have not determined that there has been abuse in these programs.”

Still, the administration is going forward with a package to revise signals intelligence programs due to “the risk of potential abuse.”

That includes several recommendations of the Review Group on Intelligence and Communication Technologies formed after the fallout from NSA leaker Edward Snowden’s revelations on the mass collection of metadata. Reforms include an annual review of FISA court opinions to potentially declassify those with broad privacy implications, restrictions on the government’s legal ability to collect communications between U.S. citizens and foreign nationals, and a “transition” away from the bulk collection of metadata to “only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of three” while exploring storing the data with a third party. Communications providers will be able “to make public more information than ever before about the orders they have received to provide data to the government.”

The White House is also promising to stop spying on world leaders’ communications, something that has rankled heads of state from Brazil to Germany and beyond. An officer at the State Department will be appointed to “coordinate our diplomacy on issues related to technology and signals intelligence.”

In his speech at the Justice Department today, Obama claimed, “I maintained a healthy skepticism toward our surveillance programs after I became president.”

“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,” he said.

However, the president added, “It was clear to me in observing our intelligence operations on a regular basis that changes in our technological capabilities were raising new questions about the privacy safeguards currently in place.”

“In fact, during the course of our review, I’ve often reminded myself I would not be where I am today were it not for the courage of dissidents like Dr. King, who were spied upon by their own government,” Obama said. “And as president, a president who looks at intelligence every morning, I also can’t help but be reminded that America must be vigilant in the face of threats.”

Obama also issued a new presidential directive today to “clearly prescribe what we do and do not do when it comes to our overseas surveillance.”

“To begin with, the directive makes clear that the United States only uses signals intelligence for legitimate national security purposes and not for the purpose of indiscriminately reviewing the e- mails or phone calls of ordinary folks,” Obama said. “I’ve also made it clear that the United States does not collect intelligence to suppress criticism or dissent, nor do we collect intelligence to disadvantage people on the basis of their ethnicity, or race, or gender, or sexual orientation or religious beliefs.”

“In this directive I have taken the unprecedented step of extending certain protections that we have for the American people to people overseas. I have directed the DNI, in consultation with the attorney general, to develop these safeguards, which will limit the duration that we can hold personal information, while also restricting the use of this information. The bottom line is that people around the world — regardless of their nationality — should know that the United States is not spying on ordinary people who don’t threaten our national security, and that we take their privacy concerns into account in our policies and procedures. This applies to foreign leaders as well.”

Director of National Intelligence James Clapper said Obama took “a measured and thoughtful approach” that was “focused on striking the right balance” between privacy and intelligence.

“As intelligence professionals, we have historically preferred to avoid the spotlight, but we know that for the foreseeable future, the public will remain focused on what we do and how we do it,” Clapper said, promising to “work with our oversight committees to implement the president’s reforms” in the coming weeks. “To build on and maintain the trust of the American people and our international partners, we must embrace the president’s call for transparency.”

The leaders of the congressional intelligence committees, Sen. Dianne Feinstein (D-Calif.) and Rep. Mike Rogers (R-Mich.), said in a joint statement that they “strongly agree” with Obama’s approach.

“We are also pleased the president underscored the importance of using telephone metadata to rapidly identify possible terrorist plots, a gap that existed on September 11, 2001, and which has been closed through the NSA’s collection of telephone metadata under Section 215 of the USA PATRIOT Act.  As the president said, this is a capability that is ‘critical’ and must be ‘preserved,'” Feinstein and Rogers said.

“The president announced his intent to seek approvals from the Foreign Intelligence Surveillance Court prior to querying the Section 215 database. If instituted, that approval process must be made faster in the future than it was in the past—when it took up to nine days to gain Court approval for a single search. We encourage the White House to send legislation with the president’s proposed changes to Congress so they can be fully debated.”

Three other members of the Senate Intelligence Committee who have been critical of the privacy implications of NSA surveillance welcomed the proposals but said they don’t go far enough.

“In particular, we will work to close the ‘back-door searches’ loophole and ensure that the government does not read Americans’ emails or other communications without a warrant. We will work to ensure that intelligence activities do not recklessly undermine confidence in American IT products and American IT employers. We will also continue to press for meaningful reforms of the outdated Foreign Intelligence Surveillance court process. This should include the establishment of a strong, independent advocate to ensure that the Court hears both sides of the argument,” Sens. Ron Wyden (D-Ore.), Mark Udall (D-Colo.), and Martin Heinrich (D-N.M.) said in a joint statement.

“We take seriously Ben Franklin’s admonition that a society that trades essential liberties for short-term security risks losing both. Today’s announcement does not include all the reforms we have sought. The president has listened to some of the advice of his independent panel of experts and endorsed some of the reforms we have long advocated. The fight to protect liberty and increase security is far from over.”

Rep. Jim Sensenbrenner (R-Wis.), the author of the Patriot Act who has said that the government is now twisting the law’s intention, said “the bottom line is real reform cannot be done by presidential fiat.”

“Some of his proposals I agree with, others I don’t,” Sensenbrenner said. “The president and intelligence community have repeatedly misled Congress and the American people and lack credibility for reform. The most effective way for the president to restore trust in the intelligence community is to endorse the USA FREEDOM Act, which strikes the proper balance between privacy and security. This bill would make permanent the good intentions of the president and address some of the omissions in his speech where Americans’ liberties need greater protection.”

His Senate counterpart on the USA FREEDOM Act, Judiciary Chairman Pat Leahy (D-Vt.), said “the president is helping to restore the nation’s historic role as a beacon of individual freedoms, under the rule of law.”

“In the wake of these announcements, Congress has important tasks ahead,” Leahy added. “The president has ordered some significant changes, but more are needed. Section 215 must still be amended, legislatively, to ensure it is not used for dragnet surveillance in the future, and we must fight to create an effective, institutional advocate at the FISA court.”

Sen. Rand Paul (R-Ky.) said while he was encouraged to see Obama “addressing the NSA spying program because of pressure from Congress and the American people, I am disappointed in the details.”

“The Fourth Amendment requires an individualized warrant based on probable cause before the government can search phone records and e-mails. President Obama’s announced solution to the NSA spying controversy is the same unconstitutional program with a new configuration,” Paul said. “I intend to continue the fight to restore Americans rights through my Fourth Amendment Restoration Act and my legal challenge against the NSA. The American people should not expect the fox to guard the hen house.”

Sen. Richard Blumenthal (D-Conn.), another critic of the surveillance programs, said Obama “was stronger on principle than prescription.”

“The president’s reform blueprint, while bold and courageous, is a first step – leaving a lot of work to be done,” Blumenthal said. “The president was eloquent and inspiring in setting a new direction, and showing that we can protect privacy and preserve national security. Now the work for Congress will be to provide precision and details that enable effective intelligence but prevent government overreach in collecting telephone data or other surveillance.”

“I’m glad the president is implementing many of my ideas to rein in government surveillance, but there is no substitute for an open and honest debate about these issues in Congress,” said Sen. Jon Tester (D-Mont.), who has pressed for repeal of the Patriot Act. “Too many questions remain about the reach of intelligence agencies into Americans’ private lives. Striking the right balance between national security and civil liberties is difficult, but the burden of proof must fall on the government and not on Americans going about their daily lives.”

Sen. Bernie Sanders’ (I-Vt.) likewise said Obama’s remarks “did not go far enough.”

“I am concerned about the chilling effect such wholesale surveillance has on Americans’ everyday activities. I do not want writers, students and even our children worried that that the books they read, the Internet sites they visit, the petitions they sign will be conceived by the government as anti-American or dangerous,” Sanders said. “Let me be clear: In my view terrorist acts against the United States and other countries remain a serious threat and we have to do everything we can to protect our safety, but I am convinced we can do that without undermining the privacy rights of the American people.”

Rep. Joe Barton (R-Texas), co-chairman of the Congressional Bipartisan Privacy Caucus, said he doesn’t see how letting the private sector hold metadata is any better. “My question — how does this, in any way, limit the invasiveness of this program?” he asked. “While I appreciate the president’s efforts to find a solution, I still do not believe this gets to the root of the problem.”

“The government should not target everyone and violate your 4th Amendment rights just because of a handful of threats. The facts simply don’t justify the mass collection of telephone numbers, call durations, and email and text messages of our citizens,” Barton said. “In my opinion, moving this type of data collection to the private sector creates even more risks by making this type of information vulnerable to data breaches and cybersecurity attacks. Instead, we should actually abide by the law and only collect data on those who appear to be a threat to our national security.”

A senior administration official said this morning that the White House is still tinkering with how to do this.

“There is the issue of providers holding this data, which of course would require additional work to ensure that there’s appropriate privacy safeguards as well as the ability for us to meet our national security requirements,” the official said.

“There’s been a recommendation of a third party that doesn’t currently exist, so by definition that would take further time and study to determine how we could establish that capacity. And then there’s the question of what the intelligence community can do with their other existing programs to ensure that we have the capability to map terrorist connections without the government holding this data.”

“The bottom line here is that we are ending the program as it currently exists because the government will no longer hold this telephone metadata. And to give people assurance that we are moving immediately in the spirit of that recommendation, we are no longer querying that metadata absent judicial review. I’d also note we’ll be working with Congress on this given the interest in congressional committees, and so they will be a part of our efforts to reform this program.”

Rep. Justin Amash (R-Mich.) stressed that “nothing the president said today will end the unconstitutional invasion of Americans’ privacy.”

“The president said that the era of secret law will continue, that the court decisions that have contorted Congress’s limits on surveillance into broad authorizations will remain secret—but the intelligence officials who have executed mass surveillance and lied to Congress will, in their discretion, release some of the rulings as they see fit,” Amash said.

“Congress must do what the president apparently will not: end the unconstitutional violation of Americans’ privacy, stop the suspicionless surveillance of our people, and close the era of secret law.”