Obama Has Already Broken His Pledge on Surveillance Reform

Last week, he promised an "independent" review by "outside experts." Then he assigned insider James Clapper to lead it.
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Reuters

Updated, 10 p.m.

President Obama pledged last week that he would take "specific steps" to reform U.S. surveillance policy. This week, he proved unable to keep his word for any longer than a weekend.

What was the latest Barack-and-switch? Here's what Obama said Friday to reassure Americans about the NSA, with my emphasis:

... We're forming a high level group of outside experts to review our entire intelligence and communications technologies. We need new thinking for a new era. We now have to unravel terrorist plots by finding a needle in a haystack of global telecommunications, and meanwhile technology has given governments, including our own, unprecedented capability to monitor communications.

So I'm tasking this independent group to step back and review our capabilities, particularly our surveillance technologies, and they'll consider how we can maintain the trust of the people, how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used, ask how surveillance impacts our foreign policy, particularly in an age when more and more information is becoming public. And they will provide an interim report in 60 days and a final report by the end of this year, so that we can move forward with a better understanding of how these programs impact our security, our privacy and our foreign policy.

Got that?

An independent group of outside experts, whose tasks include ensuring that there is no abuse and assessing the impact of surveillance on privacy. That's what he promised the American people.

Yet here's the order he released Monday to James Clapper, the director of national intelligence, again with my emphasis

Recent years have brought unprecedented and rapid advancements in communications technologies, particularly with respect to global telecommunications. These technological advances have brought with them both great opportunities and significant risks for our Intelligence Community: opportunity in the form of enhanced technical capabilities that can more precisely and readily identify threats to our security, and risks in the form of insider and cyber threats. I believe it is important to take stock of how these technological advances alter the environment in which we conduct our intelligence mission. To this end, by the authority vested in me as President by the Constitution and the laws of the United States of America, I am directing you to establish a Review Group on Intelligence and Communications Technologies (Review Group).

The Review Group will assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust. Within 60 days of its establishment, the Review Group will brief their interim findings to me through the Director of National Intelligence (DNI), and the Review Group will provide a final report and recommendations to me through the DNI no later than December 15, 2013.

As Marcy Wheeler notes, "In the memo Obama just released ordering James Clapper to form such a committee, those words 'outside' and 'independent' disappear entirely." Indeed, putting the director of national intelligence in charge all but guarantees that the effort will be neither of those things -- especially since the Clapper has already lied to Congress about NSA spying. This "Review Group" won't even report its findings directly to the public or Congressional oversight committees. It'll report to Obama ... but indirectly, through Clapper.

"If this was about 'restoring the trust' of the American people that the government isn't pulling a fast one over on them, President Obama sure has a funny way of trying to rebuild that trust," Techdirt comments. "This seems a lot more like giving the concerns of the American public a giant middle finger."

There's even more bad news. In the newly released directive, there is no longer any mention of assessing how federal surveillance programs affect "our privacy," or figuring out how to make sure that there is "no abuse."

What happened to those goals? The closest the Monday directive comes to them is an instruction to remember "our need to maintain the public trust" as one of many policy considerations.

Forget whether abuses are happening, or whether privacy rights are in fact being protected. Clapper need only probe the perception of trust. Remember, this is a man with a demonstrated willingness to tell lies under oath when he decides doing so serves the greater good. How might he interpret the charge to make sure that public trust is maintained? I strongly suspect his approach will involve hiding certain truths that, if exposed, would diminish public trust more.

The reforms Obama announced last week were wholly inadequate. Still, having promised them to the American people, the least he could do is follow through on his meager pledges. "For students of history, this will be a familiar pattern," Tim Lee writes in the Washington Post. "In 1975, President Gerald Ford created a commission headed by Vice President Nelson Rockefeller to examine allegations of abuses by American intelligence agencies. But the commission's close ties to the executive branch prevented it from doing a thorough and vigorous investigation of the intelligence agencies' activities. Instead, truly vigorous oversight came from independent committees created by Congress."

Got that, legislators? Duty calls.

Update: The White House is pushing back against the many outlets who've reported that James Clapper is leading the review, according to The Guardian:

The White House has moved to dampen controversy over the role of the director of national intelligence James Clapper in a panel reviewing NSA surveillance, insisting that he would neither lead it nor choose the members. Statements by Barack Obama and Clapper on Monday night were widely interpreted as the director of national intelligence being placed in charge of the inquiry, which the president had announced on Friday would be "independent".

The apparent involvement of Clapper, who has admitted lying to Congress over NSA surveillance of US citizens, provoked a backlash, with critics accusing the president of putting a fox in charge of the hen house. But the White House national security council insisted on Tuesday that Clapper's role would be more limited. "The panel members are being selected by the White House, in consultation with the intelligence community," national security council spokeswoman Caitlin Hayden said. The DNI had to be involved for administrative reasons, because the panel would need security clearance and access to classified material, she added.

After the White House and the Pentagon released their statements saying Clapper had been asked by Obama to "establish" the panel and report its findings, media outlets reported this to mean Clapper heading the panel and choosing the members.

I've followed up with a U.S. National Intelligence spokesman who contacted me about this article in hopes of getting a fuller explanation of Clapper's role.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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