Obama fails to offer fundamental change to metadata programs

After weeks of speculation, President Barack Obama outlined a series of purported reforms to controversial programs used by National Security Agency (NSA) to collect phone metadata of virtually every American.

Given on the anniversary of President Eisenhower’s “military industrial complex” speech, President Obama defended his record on civil liberties and the NSA. He also decried the “avalanche of unauthorized disclosures” by Edward Snowden.

“Those of us who hold office in America have a responsibility to our Constitution, and while I was confident in the integrity of those in our intelligence community, it was clear to me in observing our intelligence operations on a regular basis that changes in our technological capabilities were raising new questions about the privacy safeguards currently in place,” said President Obama this morning at the Justice Department. “I believed a fresh examination of our surveillance programs was a necessary next step in our effort to get off the open ended war-footing that we have maintained since 9/11.”

“For these reasons, I indicated in a speech at the National Defense University last May that we needed a more robust public discussion about the balance between security and liberty,” he said. “What I did not know at the time is that within weeks of my speech, an avalanche of unauthorized disclosures would spark controversies at home and abroad that have continued to this day.”

As part of his NSA overhaul, President Obama said that he plans greater executive branch oversight of intelligence activities. He promised more transparency of surveillance programs, pledging to release more FISC orders, and to “fortify the safeguards that protect the privacy of U.S. persons.”

He also pledged to reform the use of National Security Letters (NSL) and allow phony companies to provide customers with information about orders they have received from the government.

But when it came to the controversial metadata collection, President Obama insisted, once again, that the program “does not involve the content of phone calls, or the names of people making calls.” Rather, he said, the program collects phone numbers as well as times and the lengths of calls, adding that the information can only be searched “when we have a reasonable suspicion that a particular number is linked to a terrorist organization.”

President Obama touched briefly on the familiar tale of a 9/11 hijacker to justify the existence of the phone metadata collection program.

“One of the 9/11 hijackers – Khalid al-Mihdhar – made a phone call from San Diego to a known al-Qaeda safe-house in Yemen. NSA saw that call, but could not see that it was coming from an individual already in the United States,” he said. “The telephone metadata program under Section 215 was designed to map the communications of terrorists, so we can see who they may be in contact with as quickly as possible.”

Invoking the September 11 terrorist attacks — which President Obama did nine times during the speech — may be a useful tool when discussing this program, but discussing al-Mihdhar in the context of the metadata program is purposefully deceiving. It posits that this 9/11 hijacker could have been stopped and the entire plan foiled had the program been in place at the time. That is, however, a specious narrative.

But, as expected, President Obama announced that he would bring a “new approach” to intelligence-gathering by taking the program out of the hands of the NSA, though he will not end the bulk collection of metadata.

“I am therefore ordering a transition that will end the Section 215 bulk metadata program as it currently exists,” he said, “and establish a mechanism that preserves the capabilities we need without the government holding this bulk metadata.”

“The reforms I’m proposing today should give the American people greater confidence that their rights are being protected, even as our intelligence and law enforcement agencies maintain the tools they need to keep us safe. I recognize that there are additional issues that require further debate,” he added.

Reaction to President Obama’s reforms has been mixed-to-negative. EFF Legal Director Cindy Cohn said that he “took several steps toward reforming NSA surveillance.” But she added that “there’s still a long way to go,” noting that it’s up to the courts and Congress have to ensure that “real reform happens.”

Rep. Justin Amash (R-MI), one of the most vocal NSA critics in Congress, panned President Obama’s speech. “Nothing the President said today will end the unconstitutional invasion of Americans’ privacy,” the Michigan Republican wrote on his Facebook page.

“Congress must do what the President apparently will not: end the unconstitutional violation of Americans’ privacy, stop the suspicionless surveillance of our people, and close the era of secret law,” he added.

Amash is a cosponsors to the USA Freedom Act, legislation proposed by Rep. Jim Sensenbrenner (R-WI) that would end the bulk metadata collection programs and create more transparency on the FISC court.

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