A Major Victory for Snowden

By Ryan Lizza, The New Yorker

19 January 14

t’s reasonable to suspect that the modifications to the N.S.A.’s telephone-metadata program that Obama announced on Friday are simply cosmetic changes meant to short-circuit the pressure for substantive reform. For example, Obama made it clear that he wanted the “capability” of the telephone metadata “preserved.” But Obama’s speech was undoubtedly a victory for the reform side of this debate. He not only adopted the critique of those who are most troubled by the metadata program—he also adopted their central policy recommendation. The N.S.A.’s bulk collection of telephone metadata is dead, or it will be soon.

Until now, the government has defended the program as essential, and it has been dismissive—and sometimes contemptuous—of those who charged that it was never properly debated in public, is not under rigorous oversight, and is ripe for potential abuse.

Indeed, in my conversations with intelligence officials this past year, their general attitude was that smart, well-meaning, Ivy League-educated lawyers were on the front lines at the intelligence agencies making sure that the privacy rights of Americans were protected, and, therefore, the concerns about abuse were not only unfounded but also bordered on paranoia. In his speech today, Obama reversed the intelligence-community paternalism that has dominated the government’s rhetoric about the metadata program. “Given the unique power of the state, it is not enough for leaders to say, Trust us, we won’t abuse the data we collect,” he said, unironically critiquing the very argument that he and his top officials have been making for months. “For history has too many examples when that trust has been breached. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends on the law to constrain those in power.”

Before today, when skeptics made this same argument about needing a new law to constrain the government, they were met with puzzled expressions and condescending explanations of the ways in which law already constrained the government. Look no further than the Obama Administration’s official white paper, released last August, which defended the phone-metadata program as a model of democratic governance, saying that the program had been endorsed by Congress, which repeatedly reauthorized the Patriot Act, and reviewed by the Foreign Intelligence Surveillance Court, which routinely extends the program’s judicial mandate. In recent months, numerous government officials have told the public that the program meets, in the word of the former N.S.A. director Michael Hayden, the “Madisonian” test of being created and reviewed by all three branches of government.

Today, Obama reversed course, acknowledging that all of that wasn’t enough. He has now adopted the language of the reformers: “I believe critics are right to point out that without proper safeguards, this type of program could be used to yield more information about our private lives, and open the door to more intrusive bulk collection programs in the future,” he said. “They’re also right to point out that although the telephone bulk collection program was subject to oversight by the Foreign Intelligence Surveillance Court and has been reauthorized repeatedly by Congress, it has never been subject to vigorous public debate.”

So where did this newfound skepticism about government secrecy and the frightening implications of collecting an enormous amount of data abut private citizens lead the President? To the same conclusion as the civil libertarians—Rand Paul, Ron Wyden, James Sensenbrenner, Edward Snowden—who have been the most concerned about the Section 215 program: the N.S.A. should no longer collect our phone records. That is a major policy change for this President and his Administration, and it’s an incredible victory for the often maligned community of whistle-blowers, journalists, news organizations, and members of Congress who have called on Obama to end this policy.

What about the fine print? Obama’s speech was filled with caveats, calls for further study, and pained sympathizing with each side of the debate. He was insistent that some entity should continue to collect this information, so that it is available it a search-ready format. There are enormous privacy implications to such a database existing anywhere—whether inside or outside the government—and the details of how such a system is set up will be crucial. Many critics of the metadata program insist that the government shouldn’t create the database at all, arguing that if it wants telephone records, it should go get a warrant and ask the telecom communities for the information. As with his intelligence-review panel, Obama has tried to find a middle ground: the data will still be consolidated in one place, but searches will require judicial approval or “a true emergency.”

But these caveats should not overshadow the fact that Obama has sided with his fiercest critics on two of the most important reforms that have been demanded since Snowden’s first revelations: the N.S.A. should no longer collect this data and the spy agency should generally be required to have court approval when it wants to search Americans’ phone records.

Politically, this speech was a major boost for people like Pat Leahy and James Sensenbrenner, who have written the leading reform bills in their respective chambers, and a rebuke to intelligence officials like the N.S.A. director Keith Alexander and politicians like Diane Feinstein, who have fought to preserve the status quo. (Indeed, Feinstein’s own legislation, which passed the Senate Intelligence Committee last year, does not meet the criteria for reform set out in the President's speech.)

Obama’s cautious, infuriating speech won’t reform the system in all the ways that N.S.A. critics want, but it just might help Congress do so.