The Surveillance Speech: A Low Point in Barack Obama's Presidency

His tone on Friday was inappropriately dismissive, while the substance was misleading at best and mendacious at worst.
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Jon Stewart once reacted to a Barack Obama speech by marveling that "at 11 o'clock on a Tuesday, a prominent politician spoke to Americans about race as though they were adults."

On Friday, President Obama spoke to us about surveillance as though we were precocious children. He proceeded as if widespread objections to his policies can be dispatched like a parent answers an eight-year-old who has formally protested her bedtime. He is so proud that we've matured enough to take an interest in our civil liberties! Why, he used to think just like us when he was younger, and promises to consider our arguments. But some decisions just have to be made by the grownups. Do we know how much he loves us? Can we even imagine how awful he would feel if anything bad ever happened while it was still his job to ensure our safety? *

By observing Obama's condescension, I don't mean to suggest tone was the most objectionable part of the speech. The disinformation should bother the American people most. The weasel words. The impossible-to-believe protestations. The factually inaccurate assertions. 

They're all there.

* * *

The passage:

... I called for a review of our surveillance programs. Unfortunately, rather than an orderly and lawful process to debate these issues and come up with appropriate reforms, repeated leaks of classified information have initiated the debate in a very passionate but not always fully informed way.

But Obama has always had it within his power to initiate a fully informed debate. The state secrets that he guards, rightly or wrongly, are the biggest obstacle to a fully informed debate. Love the leaks or hate them, they've indisputably made Americans, including some members of Congress, much better informed than they were before about NSA surveillance, not less informed. And as any student of the civil-rights era ought to know, debate need not be "orderly" to be salutary.

The passage:

I'm also mindful of how these issues are viewed overseas because American leadership around the world depends upon the example of American democracy and American openness, because what makes us different from other countries is not simply our ability to secure our nation.

It's the way we do it, with open debate and democratic process.

But his surveillance politics and policy, whatever one thinks of it, has never been characterized by open debate. There are secret sessions conducted by Congressional committees -- and secret hearings conducted by FISA court judges -- where hugely consequential policy decisions are made. If the real world depends on the example of American openness, we are failing the world. The example we're setting is that it's okay for governments to secretly intercept the private communications data of all citizens. How would that work out in most countries? The official secrecy surrounding the NSA has already corroded U.S. democracy in real ways.

The passage:

I will work with Congress to pursue appropriate reforms to Section 215 of the Patriot Act, the program that collects telephone records. As I've said, this program is an important tool in our effort to disrupt terrorist plots, and it does not allow the government to listen to any phone calls without a warrant. But given the scale of this program, I understand the concerns of those who would worry that it could be subject to abuse.

What a sly formulation. It's true that Section 215 of the Patriot Act doesn't allow government "to listen to any phone calls without a warrant" -- and also true (for complicated reasons involving a variety of provisions, including Section 702, and much dubious wordplay) that the government does listen to the phone calls of innocent Americans who are not suspected of terrorism, often in a way that students of American history liken to "general warrant" Fourth Amendment violations. Sometimes, according to The Guardian and Senator Ron Wyden, no warrant is needed.

Obama is exploiting the fact that most people don't know Section 215 from any other provision of surveillance law. It would be as if I said to an employee at a company I owned, "nothing in the Occupational Safety and Health Administration code allows me to monitor the contents of your work email." That's true, but misleading. It's other parts of the law that confer the authority to spy.

The passage:

I'll work with Congress to improve the public's confidence in the oversight conducted by the Foreign Intelligence Surveillance Court .... The FISC was created by Congress to provide judicial review of certain intelligence activities so that a federal judge must find that our actions are consistent with the Constitution. However, to build greater confidence, I think we should consider some additional changes to the FISC. One of the concerns that people raise is that a judge reviewing a request from the government to conduct programmatic surveillance only hears one side of the story, may tilt it too far in favor of security, may not pay enough attention to liberty.

And while I've got confidence in the court and I think they've done a fine job, I think we can provide greater assurances that the court is looking at these issues from both perspectives -- security and privacy. So specifically, we can take steps to make sure civil liberties concerns have an independent voice, in appropriate cases, by ensuring that the government's position is challenged by an adversary.

But a judge's job is not balancing liberty and security, as if there is an objectively correct degree of "tilt" that they can settle upon. Judges are there, first and foremost, to ensure that the Constitution is not violated, and then to ensure that the law is being followed. The rule of law is the most important safeguard that secures the life and liberty of Americans, and any legal regime that permits the Constitution to be violated in secret is "tilting" away from long-term security.

In fact, the whole concept of a secret court is misguided, and it is astonishing that Obama, or anyone aside from partisan Republicans, would trust a court composed entirely of one man's appointees. What if I told you, Democrats, that henceforth, abortion jurisprudence, voting-rights jurisprudence, labor law, or really any area of U.S. Constitutional law would be decided in secret and always by judges who John Roberts chose? How much confidence would you have in the outcome of decisions made in that court? Yet that is how the FISA court works. And we're supposed to trust that the secret court's decisions are getting everything correct!

The passage:

... We can and must be more transparent.

So I've directed the intelligence community to make public as much information about these programs as possible. We've already declassified unprecedented information about the NSA, but we can go further. So at my direction, the Department of Justice will make public the legal rationale for the government's collection activities under Section 215 of the Patriot Act.

One of the least defensible practices of the Obama Administration is hiding the legal rationale for its actions, as if secret law is as legitimate as hiding the names of CIA operatives or nuclear codes. There shouldn't be any section of the Patriot Act, or any other law, that cannot be comprehended without seeing a classified legal memo generated in the Office of Legal Counsel. 

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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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