The Surveillance State Is Well Protected and Winning

The president is on the right track but still needs to bring the NSA to heel.

President Barack Obama looks through binoculars towards North Korea from Observation Post Ouellette during a visit to the Joint Security Area of the Demilitarized Zone (DMZ) near Panmunjom on the border between North and South Korea on March 25, 2012. (National Journal)

Bullied into action by Edward Snowden — no hero or traitor, he — President Obama might finally get one thing right about the Surveillance State. To borrow a favorite phrase, he might be on the right side of history.

The New York Times reported today that the White House will ask Congress to end the National Security Agency's open-ended collection of data about Americans' calling habits. Under the proposal, the bulk records would stay in the hands of phone companies, which would not be required to retain the data for any longer than they normally would. The NSA could seize specific records only with a judge's permission.

It's an important step, but Obama still must show he can be transparent, trusted, and effective. Will he be better about revealing and explaining the administration's national security methods?

Will his administration stop parsing, deceiving, and lying unnecessarily about intelligence programs? Will the worst offenders (read: James Clapper) be held accountable?

Will his bill become law? It could track the Obama-era pattern: a public-relations salve followed by legislative failure.

Let's hope Obama succeeds. The national security community must be both well armed and fully supported by the American public to counter existential threats in a post-9/11 world. For instance, the ability to trace and analyze the phone records of suspected terrorists and their associates could save lives — and in certain circumstances, with proper checks and balances, the process might include the records of Americans.

The Obama plan, as described by Charlie Savage of The Times, adjusts the balance between security and liberty:

The new type of surveillance court orders envisioned by the administration would require phone companies to swiftly provide records in a technologically compatible data format, including making available, on a continuing basis, data about any new calls placed or received after the order is received, the officials said.

They would also allow the government to swiftly seek related records for callers up to two phone calls, or "hops," removed from the number that has come under suspicion, even if those callers are customers of other companies.

The N.S.A. now retains the phone data for five years. But the administration considered and rejected imposing a mandate on phone companies that they hold on to their customers' calling records for a period longer than the 18 months that federal regulations already generally require — a burden that the companies had resisted shouldering and that was seen as a major obstacle to keeping the data in their hands. A senior administration official said that intelligence agencies had concluded that the operational impact of that change would be small because older data is less important.

The intelligence community argues that the current program does not constitute spying on Americans, because actual telephone calls are not monitored. First, do you believe them? Second, in a mega-data world, the bulk collection and analysis of telephone records yield to the government vast amounts of personal information. It's spying. It needs to be done sparingly and under the type of check-and-balance approach suggested in the new Obama plan.

Obama's bill will compete with others on Capitol Hill that would authorize the current program with only minor changes. Minor fixes aren't enough. To protect the Constitution and his legacy, Obama must do more than propose a full overhaul. He must win it.

Privacy advocates and liberals might call Obama's capitulation a victory for Snowden. I wouldn't. I'm still where I was nine months ago, when I dismissed the hero-or-traitor debate and said the focus should be on surveillance programs launched by President Bush after 9/11 and expanded under Obama.

Love him or hate him, we all owe Snowden our thanks for forcing upon the nation an important debate. But the debate shouldn't be about him. It should be about the gnawing questions his actions raised from the shadows.

In the end, fear and politics likely will prevail, as it has in America's past. Washington elites will close ranks to protect the Surveillance State, to trample out transparency and to mislead the public. Maybe we can talk first?

So now we've talked, and now Obama has a bill, and not much else has been done. The Surveillance State is well protected and winning.