Individually, the concrete steps President Obama announced last week toward reforming the National Security Agency’s surveillance programs were modest. Taken together, though, they signal the end of an era of unfettered escalation in intelligence-gathering.
Since the NSA’s establishment in 1952, its history has been one of almost nonstop expansion. But for most of that time, the agency still faced limits on what kind of information it could gather.
That changed after the terrorist attacks of 2001, which prompted then-President Bush to demand an all-out effort to collect every scrap of information available.
Bush brushed aside legal constraints and ordered the NSA to collect domestic telephone and e-mail communications without court warrants. Later, Congress and the Foreign Intelligence Surveillance Court legalized much of that program retroactively, including the NSA’s collection of domestic telephone call records, known as metadata. The principle driving intelligence-gathering had become to collect first, ask questions later.
Obama’s proposals are a step back from that rule.
The president didn’t cancel any existing surveillance programs; indeed, he reaffirmed the government’s argument that telephone metadata should still be collected – though with new safeguards.
To many civil liberties advocates, his cautious moves were disappointing. But while Obama’s practical steps were small, the conceptual steps were large. Instead of accepting the doctrine that a global war against terrorists justifies almost any expansion of information-gathering, he said the U.S. intelligence enterprise should be subject to more public scrutiny and more stringent cost-benefit tests.
The telephone metadata will still be there – and still, for the time being, held in one big database at the NSA. But analysts who want to check U.S. telephone records of anyone suspicious will now need permission in each case from the federal surveillance court.
A second Obama innovation – the idea that the NSA should treat foreigners the same way it treats Americans when it comes to privacy – is a revolutionary idea within the intelligence community. But it won’t shield foreigners from being subjects of U.S. surveillance, unless they are on the short list of a few dozen allied leaders whose phones won’t be tapped.
The larger impact long term may come from a less obvious part of Obama’s reforms: his directives that intelligence agencies face more stringent oversight and the Foreign Intelligence Surveillance Court make public its decisions affecting privacy rights.
Finally, Obama’s new positions may help change the debate in Congress over the NSA’s powers.
The president said that although the government should collect telephone metadata, in the long run it shouldn’t be the one to hold it. That almost certainly means a vigorous debate in Congress as surveillance programs come up for reauthorization during the next two years.
A year ago, before NSA renegade Edward Snowden revealed dozens of once-secret programs, these issues were almost entirely unknown, even to members of Congress. Even a month ago, momentum toward NSA reform appeared to have stalled. But with Obama’s speech last week, it seems certain the issues will have a full airing.
The era in which a president could order the NSA to expand surveillance programs with little oversight from Congress and no scrutiny from the public is over. That’s a big change, and a good one.