Obama's Confidence in the NSA Will Probably Survive His 'Independent' Review

"All these safeguards, checks, audits, oversight" of the NSA's surveillance programs "worked," President Obama told CNN Friday. He'd like you to agree — but isn't doing what he could to make that happen.

"All these safeguards, checks, audits, oversight" of the NSA's surveillance programs "worked," President Obama told CNN Friday morning. He'd like you to agree — but isn't doing what he could to make that happen.

When the president at a press conference earlier this month announced his proposal for reforms and review of NSA surveillance, it suggested an administration willing to conduct some reflection. This week, though, has given some reason to think that the reflection might be more like the emperor asking people what they think of his new duds. The NSA's informational website is a Tumblr page, ICOnTheRecord. The Director of National Intelligence's release of key rulings from the court that governs the surveillance programs neglected to mention that it was largely spurred by a lawsuit filed by the Electronic Frontier Foundation.

Then there's that review panel, which Obama described like this at the press conference.

[W]e'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. …

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.

"Outside." "New thinking." "Independent group." Yes, the proposal came under fire when the president at first directed Director of National Intelligence James Clapper to house it within his department. But the administration clarified: the "panel members are being selected by the White House."

The Washington Post has now confirmed with an administration official the composition of the panel the president selected. It is:

• Former Bush National Security Council member Richard Clarke
• CIA Deputy Director Michael Morell
• Former Obama administration staffer Cass Sunstein
• Former Obama and Clinton administration staffer Peter Swire

Which is a bit of like Vito Corleone asking for a review of his behavior from a panel consisting of Tom Hagen, Kay, and Don Barzini. Seventy-five percent of the panel is technically "outside" the administration, but it otherwise seems a bit antithetical to what was promised.

In the week leading up to the press conference, administration representatives met with various civil liberty groups. There is an understandable need to protect national security during these conversations, of course, and all of the people Obama selected for the panel have at some point held high security clearance, but it's not inconceivable that a civil liberties advocate could receive such clearance for consideration of the effects of the surveillance tools. Or even one of the members of the president's Privacy and Civil Liberties Oversight Board, who've already met with the president in private sessions on the issues.

What's strange is that the panel as composed can't help but not meet the goals Obama himself set for it. The fundamental issue, as the president revealed both Friday morning and during that press conference, is that he considers the systems and their safeguards to be effective. His goal isn't changing the system, it's getting people confident in it.

[W]hat's a fair criticism is my assumption that if we had checks and balances from the courts and Congress, that that traditional system of checks and balances would be enough to give people assurance that these programs were run properly. You know, that assumption I think proved to be undermined by what happened after the leaks.

The 2011 surveillance court ruling declassified by the DNI this week showed a pattern of misrepresentation by the NSA — albeit not enough of one for the court to completely axe the NSA's tools. One footnote read:

The Court is troubled that the government's revelations regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.

What advocates want is someone who isn't a member of the administration or of the secret court to act as an outside judge of what the government is doing. What the surveillance court does in the microcosm — hears one-sided arguments from the government with no counterpoint — is what it appears that Obama's review panel will do in the macrocosm. Even if that's not what it does, that's how it appears.

And if Obama's trying to shift how his programs appear to people, praising existing oversight and asking his old staffers to review his job performance isn't how to get that done.