No matter what President Barack Obama announces Friday when he unveils changes to the federal government’s surveillance programs, he won’t appease critics on the most important question he faces: what to do with the massive collection and storage of phone records.
Obama is looking to reduce the amount of information the government may collect, a move that will anger those who think that bulk collection helps prevent terrorism but still won’t satisfy civil libertarians who think it remains intrusive and unnecessary.
“It’s almost inevitable someone is unhappy at the end of the day,” said Todd Hinnen, former acting assistant attorney general for national security at the Justice Department.
Obama considered asking a separate organization – perhaps a government contractor – to store the phone data. He now is expected to allow the information to remain with the National Security Agency while calling on Congress to determine the program’s future, according to those familiar with White House deliberations. In addition, he might limit gathering records from those further removed from the original suspects and reduce the number of years the data may be retained.
Information about Obama’s possible actions Friday come from interviews with administration and Capitol Hill staffers and advocacy groups, some of whom attended meetings at the White House, who aren’t authorized to speak publicly about the deliberations.
The program – which collects the phone numbers dialed but not the content of the calls – was authorized by Section 215 of the Patriot Act and started after the Sept. 11, 2001, terrorist attacks. It didn’t require court approval until 2006.
The extent of the government’s surveillance programs became public after the release of secret documents by former contractor Edward Snowden. They showed the NSA has been collecting the telephone and email records of tens of millions of Americans and foreigners, eavesdropping on allies such as Germany and Brazil and spying on a host of global institutions, including the World Bank.
Obama is expected to announce several changes – including appointing a public advocate to appear before the nation’s secret surveillance court, which now hears arguments only from the government, and stopping spying on some foreign leaders – but not far-reaching ones. In many cases, he’ll defer to a divided Congress, where support for NSA changes does not fall strictly along party lines.
The Obama administration already has rejected two recommendations: separating two offices, the NSA and the U.S. Cyber Command, and tweaking an investigative tool – dubbed the national security letter program – that allows the FBI to quickly demand credit, financial and Internet subscriber information using a form of administrative subpoena issued without court order.
“He starts from the absolute commitment to maintaining the security of the American people . . . as well as the commitments we have to our allies,” White House spokesman Jay Carney said Thursday. “He has also said that we can and should take steps to make the activities we engage in . . . more transparent, in order to give the public more confidence.”
Obama will announce his changes Friday at the Department of Justice after a months-long review, but his speech doesn’t end the process. He’ll continue to make changes after further review, Carney said.
Gary Schmitt, a former intelligence committee staffer on Capitol Hill who now serves as a co-director of the Marilyn Ware Center for Security Studies at the American Enterprise Institute, a research center, said the president had a tough job on his hands because he supported the NSA while acknowledging that the American people were uncomfortable. “He is engaged in shadow boxing,” he said. “It’s more perception than reality.”
An advisory panel created by Obama recommended nearly 50 changes to the NSA programs, including the contentious bulk collection of phone records.
Intelligence officials insist that the bulk phone-records program prevents terrorist attacks.
“The fact is terrorists use our communications infrastructure to radicalize others, to recruit operatives,” said Matthew Olsen, the director of the National Counterterrorism Center. “Our security depends on NSA’s ability to conduct surveillance on these targets.”
Opponents argue that the administration has never provided specific examples of attacks that were prevented through the program.
An analysis of 225 terrorism cases since 2001 indicates that the data collection had a minimal impact on preventing terrorism except for a case that involved a San Diego cabdriver convicted of sending money to a terrorist group in Somalia, according to a report this week by the New America Foundation, a nonprofit group. Obama’s own advisory group said in its report that the program hadn’t been essential to preventing attacks.
“What the president really has to do is end the bulk collection,” said Leslie Harris, the president and CEO of the Center for Democracy and Technology, which promotes Internet freedom. “He has the opportunity to recalibrate the balance between liberty and security that we lost since 9/11.”
Sen. Saxby Chambliss, R-Ga., who serves on the Senate Intelligence Committee, said Obama had made it clear in a recent meeting that he understood the value of the program. “He also made clear that some changes should be made to create trust in the program by making them more transparent to the American people,” he said.
Some civil liberty and privacy groups say Obama should follow his advisory group, which calls for ending the program altogether. But group members say their 300-page report has been misinterpreted and that they recommended only that the government no longer hold the data and that it be required to obtain an individual court order for each search.
“We called for a change in approach rather than a wholesale rejection,” said Michael Morell, former deputy director of the CIA and a member of the group.
The NSA is allowed to collect five years of phone data after it receives approval from the secret court. Judges have repeatedly approved the program for 90-day periods. Congress already must decide whether to renew the NSA’s authority to collect phone records when the statute it’s based on expires in June 2015.
Anthony D. Romero, the executive director of the American Civil Liberties Union, said that if Obama didn’t implement significant changes he’d go down in history as having retained and defended his Republican predecessor’s surveillance programs rather than improving them.
“President Obama’s speech on Friday will not only determine the direction of national security policies and programs, but also define his civil liberties legacy,” Romero said.
CORRECTION: An earlier version of this story contained the wrong year for the Sept. 11 attacks.