President Obama's let's-have-a-debate defense
By: Josh Gerstein
June 7, 2013 05:04 AM EDT
The Obama administration has a familiar refrain on the surveillance of Americans’ telephone records: the president and his team are eager to have the debate.
Eager, that is, only after others have brought the tactics to light and the administration has spent years employing them.
On Guantanamo and drone strikes, as well as his administration’s aggressive use of leak investigations into the telephone records and e-mails of journalists, President Barack Obama and his aides often seem to cast him as a detached analyst or law professor watching policies carried out, rather than the one actually directing or responsible for them.
When it comes to surveillance, Obama has as president shown no sign of really wanting to have a robust debate. For years, Sens. Ron Wyden (D-Ore.), Mark Udall (D-Colo.) and former Sen. Russ Feingold (D-Minn.) have been pleading with the administration to disclose more information about call-tracking tactics that they suggested would shock many Americans.
The administration largely rebuffed those calls. Only after the leak Wednesday of a four-page “top secret” court order indicating that millions of Americans’ phone calls were tracked on a daily basis did officials begin to confirm the program’s details.
But Obama could have chosen at any time to disclose the data-sifting program, or even its rough outlines. That fact leaves critics unimpressed with his latest round of let’s-talk-it-over.
“Every time he gets into trouble, he wants to have a debate, he wants to have a discussion….I think it’s his way — a distortion field created by his own moral rectitude,” said Michael Meyers of the New York Civil Rights Coalition. “It’s the same thing with the reporters [and leaks], he wants to have a guy who violated their civil liberties to have a discussion with the media.”
“This is [Obama’s] characteristic mode of discourse,” said Steven Aftergood, a classified information policy analyst with the Federation of American Scientists. “The public should have been notified and consulted and involved and it was not. That should have taken place years ago.”
In explaining the administration’s reticence to offer details on surveillance, drones and similar issues, officials have often argued that disclosing details about such programs or in some cases even their existence, would endanger Americans by making the programs easier for terrorists to thwart.
Even as he declassified some information about the phone call-tracking program Thursday night, Director of National Intelligence James Clapper warned that revelations about the program could have grave consequences.
”The unauthorized disclosure of a top secret U.S. court document threatens potentially long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our nation,” Clapper said. “Discussing programs like this publicly will have an impact on the behavior of our adversaries and make it more difficult for us to understand their intentions.”
White House spokesman Josh Earnest struck a somewhat different tone earlier in the day, declaring that Obama and his aides were pleased to join in a vigorous public debate on the issue.
“The president welcomes a discussion of the tradeoffs between security and civil liberties,” he told reporters. “There are people who have a genuine interest in protecting the United States and protecting constitutional liberties, constitutional rights and civil liberties, that may disagree about how to strike this balance. We welcome that debate.”
The response perplexed analysts with varying perspectives on the government’s surveillance efforts.
“If [Obama] welcomed the discussion, he would have disclosed the program,” Aftergood said. “There is going to be a discussion not because the president’s welcomed it, but because the information was leaked … The discussion is only taking place because his own policies were violated.”
“It’s just odd. It’s sort of ‘Alice in Wonderland’-ish….especially at a time when they’ve used the awesome power of the government, including that of the Department of Justice, to go after leakers [and] at the same time say you welcome the debate about the efficacy of the use of Section 215, which was leaked by some leaker that shouldn’t have leaked it,” said the Heritage Foundation’s Cully Stimson, who served as a Defense Department official under President George W. Bush.
As evidence that the president welcomes the debate, White House aides pointed to a couple of passing mentions in his hour-long speech last month devoted primarily to other national security issues. He referred to post-9/11 changes like “expanded surveillance [which] raised difficult questions about the balance that we strike between our interests in security and our values of privacy” and talked of “reviewing the authorities of law enforcement so we can intercept new types of communication, but also build in privacy protections to prevent abuse.”
In the case of Guantanamo, Obama declared at a press conference in April that he was resuming his quest to close the prison and he decried the idea of keeping detainees “in a no-man’s land in perpetuity.” He seemed genuinely troubled by the hunger strike prisoners have embarked upon, but he neglected to mention that the policy review he ordered four years ago concluded that about 50 of the men needed to be held indefinitely without trial.
In the longer speech he delivered last month, he seemed to acknowledge the disconnect, but didn’t say how he’d fix it. “I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law,” he said.
He didn’t elaborate.
On drones, members of the House and Senate spent years demanding copies of classified Justice Department memoranda explaining the legal justification for drone strikes targeting Americans. The White House stonewalled, but eventually coughed up a white paper summarizing part of the legal justification.
In February, that white paper leaked to NBC’s Michael Isikoff. The administration, having insisted that members of Congress keep the document secret, abruptly embraced its release.
“Since it is out there, you should read it. I think it’s a click away,” White House Press Secretary Jay Carney told reporters.
With the confirmation of John Brennan as CIA director on the line, Obama basically abandoned the stance he’d taken for years on access to the legal opinions and allowed some members of Congress to look at the actual documents. The White House portrayed the disclosure as part of an ongoing effort to embrace congressional involvement and improve transparency, but the default up to that point had been to reject lawmakers’ requests for the records.
“It is in keeping with the president’s commitment, which he reiterated in his State of the Union address, to work with Congress to be as transparent as possible about these actions,” Carney said.
But, underscoring the president’s ambivalence on the question, Carney also suggested Congress shouldn’t expect such access in the future. “This is a unique and exceptional situation,” he said.
William Leonard, who formerly oversaw classification issues for the federal government, said the Obama administration’s handling of the drone debate was “exactly the same” as its response Thursday to the revelation of the phone surveillance.
“When Brennan went before the Senate for his confirmation as CIA director, he glibly said public debate about procedures for targeted killing and drone attacks was probably a good thing. But why was it a good thing only when he was requiring Senate confirmation?” Leonard asked. “Why wasn’t it a good thing several months before?”
During his first term, Obama did make occasional, sometimes grudging moves towards greater transparency on surveillance and issues like the legal authority for drone strikes.
Last July, Director of National Intelligence declassified three sentences Wyden wanted to say publicly about Foreign Intelligence Surveillance Court rulings. One revealed that the court had concluded at least once that officials had not done enough to minimize their retention of information on Americans and “circumvented the spirit of the law.”
However, when the groups like the American Civil Liberties Union and the Electronic Frontier Foundation pressed for declassification of the court’s opinions, the administration resisted and continues to resist.
On drones, Attorney General Eric Holder gave a speech in March 2012 laying out the broad legal rationale for the strikes. The following month, Brennan gave a speech where he argued that drone strikes are “ethical and wise.” But one of the most active drone programs, in Pakistan, remains officially classified.
Some of the contradictions are the product of a country naturally moving further and further away in time from a massive terrorist attack that prompted a significant shift of the country’s traditional security apparatus.
As a presidential candidate and even earlier in the Senate, Obama spoke out against the Patriot Act authority used to support the Verizon order disclosed this week, seeming to feel Americans targeted by surveillance should have recourse in court — a proposition his administration has since resisted all the way to the Supreme Court.
“If someone wants to know why their own government has decided to go on a fishing expedition through every personal record or private document, through library books they’ve read and phone calls they’ve made, this legislation gives people no rights to appeal the need for such a search in a court of law,” Obama complained in a 2005 floor speech. “No judge will hear their plea, no jury will hear their case. This is just plain wrong.”
Despite the White House’s protestations, Obama is tied not just to the surveillance policy, but to the decision to keep the scope of the surveillance secret. The order published Wednesday by the Guardian is classified “top secret” — a designation which, like all classification decisions, derives from the president’s unique executive powers.
“The classification system, what it actually is is delegation of the president’s … inherent constitutional authority as commander in chief and to direct foreign relations,” said Leonard, former director of the federal government’s Information Security Oversight Office. “Classification is ultimately a discretionary act … This could have been disclosed at any time and we could have discussed this from the get-go. You have to ask yourself this question: who are we really keeping this information from?”
Obama may soon have to confront an awkward intersection between two of the current swirling controversies: the NSA surveillance and the anti-leak campaign. If Obama welcomes the debate, does he welcome the leak?
The White House had no answer Thursday to that question or for questions about the fate of the leaker.
“Is he willing to say he’ll forego a leak investigation because this is such an important discussion?”Aftergood asked.
“I don’t think this is one of those moments where you can throw out happy talking points and hope it will go away,” added Stimson. “I think from a PR standpoint, they’ve got a big problem.”