President Barack Obama's blueprint for overhauling the government's sweeping surveillance program is just the starting point. The reality is few changes could happen quickly without unlikely agreements from a divided Congress and federal judges.
President Barack Obama’s blueprint for overhauling the government’s sweeping surveillance program is just the starting point. The reality is few changes could happen quickly without unlikely agreements from a divided Congress and federal judges.
The most contentious debate probably will be over the future of the National Security Agency’s bulk collection of telephone records from millions of Americans. In his highly anticipated speech on Friday, Obama is expected to back the idea of changing the program. But he’ll leave the specifics to Congress, according to U.S. officials briefed on the White House review.
That puts key decisions in the hands of lawmakers who are at odds over everything from whether the collections should continue to who should house the data.
Even a widely supported proposal to put an independent privacy advocate in the secretive court that approves spying on Americans is coming under intense scrutiny. Obama has indicated he’ll back the proposal, which was one of 46 recommendations he received from a White House-appointed commission. But a senior U.S. district judge declared this week that the advocate role was unnecessary, and other opponents have constitutional concerns about whether the advocate would have standing to appear in court.
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The uncertain road ahead raises questions about the practical impact of the surveillance decisions Obama will announce in his speech at the Justice Department. The intelligence community is pressing for the core of the spy programs to be left largely intact, while privacy advocates fear the president’s changes may be largely cosmetic.
Stephen Vladeck, a national security law expert at American University, said the key questions will be “how much of this reform conversation is going to be about curtailing the specific surveillance programs and how much of it is going to be instead about improving the checks and balances on the programs that already exist.”
Obama’s speech marks the end of a months-long White House review spurred by former NSA analyst Edward Snowden’s revelations about the secret government surveillance programs both at home and abroad. The disclosures restarted a dormant debate over surveillance — on Capitol Hill and among outraged allies overseas.
For Obama, changing the overseas spying program may well be easier than implementing domestic reforms. On its own, the administration can enact two international surveillance changes officials say the president supports: extending some privacy protections to foreign citizens and tightening the protocols for decisions on spying on foreign leaders. Still, it’s unclear whether those steps will be enough to soothe international anger.
One move that has gained support from both the president and lawmakers of both parties is the appointment of a public advocate to the Foreign Intelligence Surveillance Court, which currently hears arguments only from the government. Legislators in the Senate and House have drafted rival bills to create such a position, but some critics say the current versions might not pass constitutional scrutiny.
Robert S. Litt, the top lawyer for the Director of National Intelligence, has said he has “both practical and legal concerns,” and he raised the possibility that the public advocates could face constitutional questions over their standing to appear in a court.
The proposal also drew heavy fire from unexpected quarters Tuesday when U.S. District Judge John D. Bates — weighing in on behalf of the entire federal judiciary — warned that the proposal was unworkable. Bates told the Senate Intelligence Committee in a letter that such an advocate could not effectively provide independent factual investigations necessary for classified national security cases.
“The participation of an advocate would neither create a truly adversarial process nor constructively assist the courts in assessing the facts,” said Bates, who is the administrative judge of U.S. court system and was previously chief judge of the FISA court.
Even supporters acknowledge that Congress’ political paralysis and the looming midterm elections could hurt the chances for swift passage of such a novel legal experiment.
Those factors also could hamper a debate over the future of Section 215 of the USA Patriot Act, the measure used to authorize bulk collections of telephone records from millions of Americans. While Obama is expected to embrace the concept of reforming the program, he’ll leave it to Congress to decide how to accomplish that, including a sensitive decision over possibly moving the data from the NSA to the phone providers or another third party.
Privacy advocates support moving the data and want the change enshrined in legislation to ensure the reforms carry on past Obama’s presidency. But they fear that process will stall if Obama puts the decision solely in lawmakers’ hands and does not call for specific action.
Anthony Romero, the executive director of the American Civil Liberties Union, said Obama was “passing the buck when the buck should stop with the president.”
Associated Press writer Tracy Brown contributed to this report.
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