The peculiar ways that President Obama addressed NSA spying during his recent Hardball interview with Chris Matthews deserves a lot more scrutiny than it has received. There are four parts to these remarks*. Marcy Wheeler is one of the few analysts who've pointed out the inaccuracies and strange locutions.
First, Obama says that while he "can't confirm or get into the details of every aspect of what the NSA does," Edward Snowden's disclosures of classified documents "have identified some areas of legitimate concern." But he doesn't specify. What are the NSA behaviors about which the public is legitimately concerned? (For the subset of leaked documents related to those areas of "legitimate concern," why isn't Obama treating Snowden as a legitimate whistleblower?)
Now for the misleading rhetoric.
In part two of his answer, Obama says that some of Snowden's revelations have been "highly sensationalized" and "painted in a way that's not accurate." He implies but does not state that the inaccuracies relate to spying on Americans: "The NSA actually does a very good job about not engaging in domestic surveillance, not reading people's emails, not listening to the content of their phone calls."
Wheeler explains why that is inaccurate:
... It is false to say NSA does a very good job of not engaging in domestic surveillance. They’ve been caught doing so, on a programmatic scale, under Obama’s Administration, twice. At least one of those programs simply moved overseas after being caught. The President basically said that being caught twice illegally wiretapping thousands (under the upstream collection) and millions (under the Internet dragnet) of Americans domestically is a good job!
Add in the fact that NSA can read the content of collected US person communications with no Reasonable Articulable Suspicion, with no reporting requirements. That certainly amounts to the authority to conduct fairly unlimited amounts of domestic surveillance via the back door loophole.
(For more context, see Ryan Lizza's recent piece on Obama and the surveillance state.)
In part three of his answer, Obama makes a staggering claim. "Outside of our borders, the NSA is more aggressive," he says. "It's not constrained by laws." Perhaps the NSA behaves abroad as if it is not constrained by laws, but if so, that is problematic, and suggests the NSA may be breaking laws to which it is properly subject. "Section 703 of the FISA Amendments Act—a law which Obama played a crucially important role in passing as a Senator—says NSA can’t wiretap Americans overseas without specific authority from FISC," Wheeler writes. "Section 704 limits physical searches, which NSA uses to authorize collection from servers. As far as I know, no one has considered whether the deliberate collection of US person content overseas—albeit in bulk—complies with Section 703 and 704. But it at least lays out some limits on NSA’s overseas spying."
Obama's word choice in the fourth part of his remarks is perhaps the most peculiar of all. "Part of what we're trying to do over the next month or so is, having done an independent review and brought a whole bunch folks, civil libertarians and lawyers and others, to examine what's being done," he says. "I'll be proposing some self-restraint on the NSA, and you know, to initiate some reforms that can give people more confidence." I can't recall ever hearing a president speak this way about a part of the federal government that he is supposed to control. Says Wheeler, "It is the role of the President—and the White House more generally—to oversee activities conducted under Article II authority. The language Obama uses here suggests an NSA unbound by his control, one he 'proposes' to rein in rather than 'orders' to do so." To whom would Obama be making the proposal he references? If restraint is prudent, why rely on NSA employees to subject themselves to it voluntarily, especially given the agency's historical tendency to aggressively hoover up information in all ways that are legal and some ways that aren't? Why would Obama use that formulation?