Obama in January will reveal his reforms for an agency besieged by controversies that have become an undeniable albatross for the White House. But as the president studies the recommendations from his NSA review task force, the agency’s surveillance programs have already been dealt a major legal defeat.
A federal judge on Monday ruled that the NSA’s collection of bulk phone data was unconstitutional, but placed the ruling on hold pending an almost-certain government appeal.
The judge's ruling only emboldened critics who contend the administration has resorted to Orwellian tactics to protect national security, heightening expectations for how Obama will strike a balance between combating terrorism and preserving Americans' privacy.
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” U.S. District Court Judge Richard Leon wrote, calling the practice a violation of the Fourth Amendment ban on unreasonable searches.
Just a day after the decision, Obama on Tuesday will meet with leaders from Apple, Twitter, Netflix, Yahoo, Comcast, Facebook, Googleand AT&T, among others, according to the White House. The NSA's data collection methods are high on the agenda, a White House official said.
The president is now reviewing a report by an outside panel on how to rein in an agency on the defensive in the wake of leaks by former government contractor Edward Snowden.
Already, privacy rights advocates and civil liberties groups are raising concerns that Obama will merely tinker around the margins rather than fundamentally increase oversight of the clandestine NSA programs.
The president’s review comes as he faces his lowest approval numbers after the botched Obamacare rollout. The NSA’s critics say Obama must either live up to his campaign promises to increase transparency or expose them as empty rhetoric.
“He has to campaign like it’s 2008,” said Jim Harper, director of information policy studies at the libertarian Cato Institute.
“The White House is really taking its orders from the intelligence community,” Harper added. “He should go back to being the Obama Americans elected in 2008, having a more balanced security strategy.”
The White House has been careful not to tip the president’s hand, acknowledging only that Obama had received the report from his task force reviewing NSA surveillance practices and that he would not make recommendations about the controversial programs until an internal review is completed in January.
But initial reports about the panel’s findings suggest modest changes in how the NSA collects and stores Americans’ private information.
The administration already announced that it would keep both the National Security Agency and the Pentagon’s Cyber Command under the leadership of the NSA director, despite growing calls for a civilian to lead the spy department.
The New York Times and Wall Street Journal reported the outside group recommended that phone companies, not the government, store Americans' metadata. The panel, consisting of former counterterrorism chief Richard Clarke, former CIA deputy director Michael Morell, University of Chicago law professor Geoffrey Stone, former Obama regulatory czar Cass Sunstein and former Office of Management and Budget privacy director Peter Swire, also reportedly called for stiffer rules for searching such data.
Critics say those changes, however, are mostly cosmetic and do little to alter the scope of the NSA's reach.
The administration has repeatedly defended its surveillance practices as legal and pointed to the declassification of a trove of NSA documents — self-praise dismissed by some analysts.
“It’s really hard to give anyone credit for the declassifications; almost certainly, they would not have happened unless forced by the Snowden leaks,” Harper said.
He likened the White House to a “guy who kills his parents and then pleads for lenience because he’s an orphan.”
The implications of Monday’s legal setback remain to be seen for the White House.
Politically speaking, however, the ramifications of Obama’s NSA pitch are even more pronounced with his liberal allies than Republican critics.
Obama’s support among his liberal base has eroded amid the flaws of the healthcare.gov website and growing disillusionment with his signature health care reforms. If Obama doesn’t outline a clear path forward for policing U.S. intelligence methods, some close allies predict a liberal revolt.
“There’s been a whole lot of talk about Obama losing liberals,” one veteran Democratic strategist told the Washington Examiner. “If this turns into a whitewashing, you’re really going to see the [expletive] hit the fan with some in the party.”
Transparency advocates said the other end of Pennsylvania Avenue needs to be more proactive in keeping the White House in check.
“It should not be up to the executive branch to restrain itself. It is really the role of Congress to establish boundaries and enforce them,” said Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy. “It’s up to Congress to define the limits of what is lawful and appropriate. That’s where I look for leadership on this issue.”
On Capitol Hill, libertarian-leaning Republicans and a number of Democrats are calling for legislation that restricts how the government monitors Americans, limits how long it can store such data and provides greater oversight of surveillance programs.
However, lawmakers won’t push ahead on their NSA reforms until Obama lays out his own vision.
Some analysts suggested that Judge Leon's ruling punctured Obama's core rationale for the NSA’s methods.
"This ruling decimates the NSA's defense of its telephone metadata program," said Faiza Patel, co-director of the Brennan Center for Justice's Liberty and National Security Program. "And despite the NSA's claim that the program is necessary, it was not able to convince the judge that metadata has been at all useful in preventing terrorist attacks."
For his part, Snowden, a constant thorn in Obama’s side, hailed the court ruling as validation for his actions.
“I acted on my belief that the N.S.A.'s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts,” Snowden said in a statement. “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”