Another problem with today's speech is the emphasis present day Obama puts on the intentions of the intelligence community. For example, he said:
... Nothing in that initial review, and nothing that I have learned since, indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens.
To the contrary, in an extraordinarily difficult job—one in which actions are second-guessed, success is unreported, and failure can be catastrophic—the men and women of the intelligence community, including the NSA, consistently follow protocols designed to protect the privacy of ordinary people. They’re not abusing authorities in order to listen to your private phone calls or read your emails. When mistakes are made—which is inevitable in any large and complicated human enterprise—they correct those mistakes.
Did you catch that phrase? He didn't find anything that indicated the intelligence community "has sought to violate" the law. He doesn't mention finding that they did, in fact, violate the law, whatever their intentions. Isn't that what matters? And the part about their zealousness in correcting mistakes is undermined by the findings of the FISA court, which was frustrated with the NSA on that count.
In another passage about the intelligence community, Obama tells us:
... Just as ardent civil libertarians recognize the need for robust intelligence capabilities, those with responsibilities for our national security readily acknowledge the potential for abuse as intelligence capabilities advance and more and more private information is digitized. After all, the folks at NSA and other intelligence agencies are our neighbors. They're our friends and family. They’ve got electronic bank and medical records like everybody else. They have kids on Facebook and Instagram, and they know, more than most of us, the vulnerabilities to privacy that exist in a world where transactions are recorded, and emails and text and messages are stored, and even our movements can increasingly be tracked through the GPS on our phones.
Yes, the intelligence agencies are filled with lots of honest, honorable Americans, but for goodness' sake, the men who spied on Martin Luther King were the friends and family members of regular Americans. They had churches they attended and preachers they honored. The Watergate burglars belonged to political parties and understood the importance of their being able to keep secrets from their opponents more keenly than most. Either Obama is being disingenuous in that passage or he fundamentally doesn't understand the nature of civil-liberties abuses.
A final reason that what Obama proposes is inadequate: Many of his reforms are just intra-executive branch changes that any president could tweak or reverse at any time. The directive he released even has an "all of this is contingent on my whim" clause:
Nothing in this directive shall be construed to prevent me from exercising my constitutional authority, including as Commander in Chief, Chief Executive, and in the conduct of foreign affairs, as well as my statutory authority. Consistent with this principle, a recipient of this directive may at any time recommend to me, through the APNSA, a change to the policies and procedures contained in this directive.
(To understand the Bush-era precedent that ought to make us suspicious of this language, see Marcy Wheeler's explanation.)
This underscores the need for congressional action on most aspects of this controversy. According to Obama, "For more than two centuries, our Constitution has weathered every type of change because we have been willing to defend it, and because we have been willing to question the actions that have been taken in its defense." But as Wheeler aptly retorts, "We created the dragnet not to defend the Constitution, but to defend what we now call 'the Homeland.' We largely forgot about defending the Constitution in the process."
One federal judge and many legislators have lately agreed. And their continued efforts are needed if the Fourth Amendment is to be saved from a metastasizing War on Terror. Americans elected a leader who promised to reform it in significant ways. He has long since adopted its flawed logic in many of the most problematic ways.