Initial Thoughts on POTUS surveillance reforms

During a rare mid-afternoon late summer Friday press conference, President Obama outlined several actions that he believes will help restore American citizens' trust in the government's assorted electronic surveillance programs.  

My initial thoughts are shown below relevant portions of yesterday's prepared remarks, as presented by the Washington Post. (Using the text of the actual speech allows us to better understand the context and nuances of the President's message versus simply responding to the various proposals contained within.)

First, I will work with Congress to pursue appropriate reforms to Section 215 of the Patriot Act, the program that collects telephone records. As I’ve said, this program is an important tool in our effort to disrupt terrorist plots, and it does not allow the government to listen to any phone calls without a warrant. But given the scale of this program, I understand the concerns of those who would worry that it could be subject to abuse.

Given the amount of wordsmithing, creative interpretations, and semantic parsing involved in public statements and documents from the government regarding these programs, one wonders how narrow these 'reforms' will be if/when enacted and whether they will apply only to those programs disclosed and/or already known to the public.

Second, I’ll work with Congress to improve the public’s confidence in the oversight conducted by the Foreign Intelligence Surveillance Court, known as the FISC. The FISC was created by Congress to provide judicial review of certain intelligence activities so that a federal judge must find that our actions are consistent with the Constitution....However, to build greater confidence, I think we should consider some additional changes to the FISC. One of the concerns that people raise is that a judge reviewing a request from the government to conduct programmatic surveillance only hears one side of the story, may tilt it too far in favor of security, may not pay enough attention to liberty......And while I’ve got confidence in the court and I think they’ve done a fine job, I think we can provide greater assurances that the court is looking at these issues from both perspectives -- security and privacy. So specifically, we can take steps to make sure civil liberties concerns have an independent voice, in appropriate cases, by ensuring that the government’s position is challenged by an adversary.

Inclusion of the phrase in appropriate cases" leaves plenty of wiggle room for the Administration. Also, if this 'public advocate' is cleared to access the FISC, how will they be able to tell the public if/when there are transgressions or abuses without violating their secrecy oath? If those charged with 'watching the watchers' are forced to play by the same rules as those they're watching, it is quite easy to conceal transgressions. As public representatives, Senators Wyden or Udall were trapped by such rules in recent years when trying to warn the American people about questionable Section 215 practices.

Number three, we can and must be more transparent. So I’ve directed the intelligence community to make public as much information about these programs as possible. We’ve already declassified unprecedented information about the NSA, but we can go further. So at my direction, the Department of Justice will make public the legal rationale for the government’s collection activities under Section 215 of the Patriot Act.

What the government declassified was heavily redacted.  When a leaker's information is more useful for public debate than what's officially released by the government, problems related to trust and both sides having a "complete understanding" of the underlying facts remain.

The NSA is taking steps to put in place a full-time civil liberties and privacy officer and release information that details its mission, authorities and oversight. And finally, the intelligence community is creating a website that will serve as a hub for further transparency. And this will give Americans and the world the ability to learn more about what our intelligence community does and what it doesn’t do, how it carries out its mission and why it does so.

The intelligence community thrives on secrecy, so absent additional details about what information this 'hub' might provide one wonders exactly how helpful it will be in fostering public transparency about programs shrouded in secrecy. Will it be heavily redacted? Will it be useful? Will it be material that could be discovered elsewhere through FOIA requests or Congressional hearings? Or will it be nothing more than a vehicle for the intelligence community to provide the "least untruthful" information possible to the American public?

Fourth, we’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. We now have to unravel terrorist plots by finding a needle in a haystack of global telecommunications, and meanwhile technology has given governments, including our own, unprecedented capability to monitor communications.

If this is the same group of technology executives that met with POTUS earlier this week to discuss surveillance programs, that meeting was held in secret and its discussions were not disclosed.

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. And they will provide an interim report in 60 days and a final report by the end of this year, so that we can move forward with a better understanding of how these programs impact our security, our privacy and our foreign policy.

"Forming a committee and 'writing a report' is something governments tend do during times of political crisis or scandal.  The key is what will happen after the report is submitted. Will it be public? Will it be redacted? Will it lead to any meaningful changes? Sounds good, but the devil is in the details. Plus, I doubt that any advice or findings from this group will change the completely risk-averse culture permeating Washington's mindset that believes government must "do everything it can" to protect the country from anything bad from happening anywhere at anytime.  It's this fear-based thinking and quest for political job security that initiated these programs to begin with following 9/11.  Risk aversion is not risk management -- it's cowering in fear.

At first glance, these proposals are a predictable, although low-cost and fairly half-hearted, reaction by the Administration to the growing national and international outcry over America's national surveillance programs. Unfortunately, they are light on substance and leave many unanswered questions about their implementation and meaningful long-term outcomes.

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