President boxed in on NSA reforms

Getty Images

An advisory group created to review the National Security Agency has boxed in President Obama by proposing more sweeping changes to American surveillance than expected.

The report, which was released on Wednesday, makes it much harder for Obama to oppose substantial restrictions to the NSA's powers, observers say.

"Given the make-up of the panel and that the fact that the panelists were chosen by the president himself, the substantial recommendations it made are more likely to be received well and acted upon," said Greg Nojeim, an attorney for the Center for Democracy and Technology, a privacy advocacy group.

"This will give ammunition to the forces of reform in the White House as well as those in Congress."

ADVERTISEMENT
Obama filled the review group with former officials closely tied to either him or the intelligence agencies. That stoked suspicion among privacy advocates that the final product would be mere window-dressing.

The panel included Michael Morell, who served as the deputy director of the CIA; Richard Clarke, who was a senior White House counterterrorism adviser; Cass Sunstein, a former top regulatory official who has known Obama for years; Peter Swire, who served as a special assistant to Obama for economic policy; and Geoffrey Stone, a constitutional law professor who has known Obama since his days at the University of Chicago.

The Obama allies proved the naysayers wrong by dropping a massive, 300-page report with 46 recommended changes to U.S. surveillance practices.

Benjamin Wittes, a senior fellow at the Brookings Institution and frequent defender of the NSA, said the review group pulled "the rug out from under" the White House.

"This is a really awkward document for the Obama administration. Really awkward," Wittes wrote on his national security blog, Lawfare.

"This presumably was not the report Obama was imagining when he asked this group to take this on."

The White House has repeatedly said that it will take the review group's recommendations seriously. But in the speech that Obama gave in August announcing the creation of the review group, he emphasized that the surveillance programs are critical for protecting national security.

He argued that the NSA is not violating anyone's privacy rights, but that certain changes might be necessary to restore the public's trust.

"The programs are operating in a way that prevents abuse, that continues to be true, without the reforms," Obama said at the time. "The question is how do I make the American people more comfortable."

The White House said Thursday that it was standing by Obama's previous assertions.

"The president does still believe and knows this program is an important piece of the overall efforts we engage in to combat threats agains the lives of American citizens," White House press secretary Jay Carney said. 

Pressed specifically on whether Obama was standing by his administration's claims that the programs had saved lives, Carney responded, "yes, he is."

The review group's recommendations go far beyond cosmetic changes. Officials from the Justice Department and intelligence agencies have already said they oppose many of the proposals that were put forward in the group's report.

The most controversial revelation from the leaks by Edward Snowden is that the NSA collects records on virtually every U.S. phone call.

Leaders of the NSA and other administration officials have argued that the program is critical for preventing terrorist attacks.

"There is no other way that we know of to connect the dots," NSA Director Keith Alexander said at a Senate Judiciary Committee hearing this month. "Taking these programs off the table is absolutely not the thing to do."

But after conducting its review of the surveillance programs, the panel said it had serious doubts about the importance of the NSA bulk data collection. The group concluded the information in the phone database "was not essential to preventing attacks and could readily have been obtained in a timely manner using" more targeted surveillance.

The panel recommended that the NSA allow phone companies or other third parties to collect and maintain the databases of phone records. The NSA could then mine the private data, but only with an order from the Foreign Intelligence Surveillance Court.

The group also called for tougher restrictions on the NSA's access to Americans' communications through a surveillance authority intended to target foreigners. Under its plan, the secret national security letters that are issued to companies for records could only be used with court approval.

The advisory group also criticized the NSA over reports that it undermined online encryption tools.

"Encryption is an essential basis for trust on the Internet; without such trust, valuable communications would not be possible," the advisers wrote. "For the entire system to work, encryption software itself must be trustworthy."

The report is a setback for the people who argue that significant limitations on the NSA would endanger national security.

House Intelligence Committee Chairman Mike Rogers (R-Mich.), one of the NSA's most vocal supporters, said in a statement that he has "serious concerns" with some of the recommendations.

"Any intelligence collection reforms must be careful to preserve important national security capabilities," Rogers said.

Nojeim said it would be hard for the White House to dismiss the recommendations of Obama's own review group.

"It is a game changer. I don't think there's any question about that," he said. 

This story was posted at 2:54 p.m. and updated at 4:05 p.m.

Justin Sink contributed to this story.