Thankfully, President Obama is not a doctor. If he was and you happened to visit him in his office and mentioned that you were worried about the potential for lung cancer, he’d immediately put you under, open you up, and pull out a lung—or, at least, that’s the logic that seems to be guiding his decisions on NSA’s collection programs. Yes, no one has found any evidence that NSA has broken the law, invaded constitutionally-protected privacy rights, or is about to. But never mind, it’s the very possibility that someday, somehow, NSA will jump the tracks that requires the president now to unduly complicate the use of what he admits has been an important counterterrorism tool.
On the domestic front, the president has decided to modify substantially the 215 metadata collection program in which American telephony data (numbers called, numbers called from, and length of call) is currently stored in bulk by NSA and examined there to look for connections to foreign terrorists and terrorist organizations—all of which is done under the supervision of both congressional committees and the Foreign Intelligence Surveillance Court (FISC). Starting now, however, the president will have the Justice Department go to the court for every discrete query of the database. This is in contrast to the current process by which NSA can query the telephony database in any instance where an already FISC-approved, reasonably suspected terrorist number comes up on its screen. Obviously, having to get court pre-approval for what have been a couple hundred queries annually will slow down the effort, make it far more burdensome and, in spirit, as former NSA and CIA director Michael Hayden recently said, return us to “a pre-9/11 mindset.”
The president also said it was his intent to move storage of the data from NSA but admitted, in essence, that he didn’t have clue of how that was to be accomplished and punted over to the bureaucracy to figure it out. The fact is, the companies (for good reasons) don’t want to be responsible for storing their customers data and an entirely new, third party entity would (when one thinks through how it would work in practice) wind up being a virtual clone of NSA in any case.
On the foreign front, the president is ordering the intelligence community to stop listening in to friendly foreign leaders as a matter of practice, to only spy on foreign publics for reasons of national security and to limit the duration of the information collected. Of course, the president can’t promise he won’t ever listen in to some leader’s calls, can’t publicly say who’s on and who’s not on the “do not disturb” list of leaders, cannot say this will cover those leaders’ aides and staff, and cannot predict what will or will not be considered to be of importance for national security in the days, months, and years ahead. So, while the president is trying to reassure foreign leaders and publics, his new policies are unlikely to do so. Of course, privately, most of our friends and allies’ intelligence agencies will not want to stir the pot any further since they are routinely the beneficiaries of NSA’s superior collection tools.
If there is any good news coming from the president’s speech it’s that he didn’t accept any of the presidential panel’s even wilder recommendations about breaking up NSA into offensive and defensive components—a sure fire way of making both less effective—nor did the president adopt perhaps the panel’s silliest recommendation of all: telling NSA to stop looking for ways to defeat encryption systems that, needless to say, terrorists, criminals, and rogue states might want to use.
Finally, over the last few days it’s been clear from various news stories and leaks from the White House that the president has bounced around on what he would recommend. One might even be sympathetic to his indecision about how to balance privacy rights and security if this wasn’t a problem in some measure the president brought on himself by not taking a more public role in defending his own intelligence programs. But, as Bob Gates makes clear in his new book, Duty, this is a president who not only likes to lead from behind but thinks leadership is akin to riding public opinion instead of directing it.