It's too bad the president led people to expect fireworks in a speech that was far from un-serious

by Ken

Here's what I think about the president's speech: I don't know why he made such a big production about it. That set it up fora big whuppin', and decreased the amount of attention likely to be paid to what he actually said. The people who thought he's "soft on security" will still think so. (They mostly won't have any idea what the heck he was talking about.) The people who thought he's a traitor on civil liberties will still think so too.

I didn't see or hear the speech, but I did read it. I don't say I studied it, but I do go back over several sections that left me puzzled. Sometimes the puzzlement was because I suspected the president didn't know what he meant, like the whole business about Paul Revere and also the Civil War balloon surveillance. Washington Post blogger Alexandra Petri had some fun trying to parse this, but beyond the fun, she established pretty effectively that those cases don't have much of anything to do with any of the present-day questions we face. (Alexandra, you'll recall, had by far the most savvy take I saw on Gov. Kris KrispyKreme's two-hour piece of performance art the other day. I see she graduated from Harvard only in friggin' 2010 -- that's scary.)

After I read the speech, before I had a chance to find out what the smart people thought, I was thinking, well, that's certainly not revolutionary, but seeing as how he's the guy who has to try to actually do whatever he claims he's going to in his speech, I don't know what more we could have expected. I mean, did anyone really think he was going to, say, call a complete halt to phone-data collection?

Writing yesterday, The New Yorker's John Cassidy, a writer readers may recall I sincerely admire, said ("Obama and the N.S.A.: Why He Can't Be Trusted"):

In his speech on Friday, the President will probably follow his usual tack and seek to portray himself as a reasonable man hewing to the middle ground between opposing views. In this instance, though, such a depiction doesn't withstand inspection.

He proceeds to cite a number of "moderates" (like Supreme Court Justice Sonia Sotomayor and Sen. Patrick Leahy) and not-even-moderates like the president's own Review Group on this subject expressing opinions skeptical of the legality of the data collection. But that doesn't mean there aren't plenty of people on the other side, who didn't get quoted.

And while I don't expect that Cassidy will have changed his overall opinion much after encountering the actual speech, the fact is that the information he was basing it on -- reports about what the speech would contain -- were seriously not right. Most notably:

The news reports say that Obama has rejected the Review Group's main recommendation, which was to end the N.S.A.'s bulk collection of metadata, such as the phone records of hundreds of millions of Americans. The panel, which issued a long report in December, said the N.S.A. should continue to have access to these records under the auspices of the secretive Foreign Intelligence Surveillance Court, but it said that the data should be held by the phone companies, or by a third party. Having thrown out this suggestion, Obama is set to leave the current system in place and hand its ultimate fate over to Congress, which is tantamount to doing nothing.

Oops! That's pretty much what the president did propose, except that he was honest enough to say that we still have to figure out the who and the how. Which will probably provide critics with an opportunity to dismiss what he said, because the likelihood is that there aren't going to be any good answers.

I was thinking about this after I wrote my post the other day about that clown Bob Gates's denunciation of the president for not enthusiastically enough supporting his own Afghanistan policy and doubting that it would work. I pointed out that anyone who didn't have doubts that it would work was a halfwit (this means you, Gates), but sure enough, the pea-brained warriors of the Right have already pounced on this as proof that Obama lost Afghanistan. What I didn't point out in my post, I guess because I thought it was too obvious, was that however much the president's plan sucked, every other "plan" sucked worse.

So again, I wonder mostly why the president thought it would be smart to make a big production of this. It was a speech that was bound to satisfy pretty much nobody, and even the one thing I thought he might actually have hoped to accomplish, which was to open some of these security and secrecy issues to national debate, almost certainly won't happen, at least going by the reactions I've seen so far, where everybody is saying exactly the same things they were saying yesterday and the day before and the day before that. And if you'll excuse me, a lot of those things are blockheaded.

If, for example, I hear one more person say that the phone data collection is a "clear" or "unequivocal" or "flagrant" violation of the Fourth Amendment, I will have to suggest that for once in their lives they use their effing brains. Here's what the Fourth Amendment says:

AMENDMENT IV
Protection from unreasonable search and seizure.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Maybe mass phone data falls into the category of "persons, houses, papers, and effects," and maybe it doesn't. We always make fun of the loony right-wing original intentionalists, but this seems to me pretty clearly a question beyond the contemplation of the founders. And I would suggest that if and when the question is put before the present Supreme Court, the unequivocal unconstitutionality may be as far from unequivocal as you can get.

Similarly, the blithe assertion that there have been no cases of this phone data preventing a hostile action just because committees haven't been able to find one is silly. The fact remains that lots of things that are done in secret are, you know, done in secret. Of course secrecy can be used to hide things that shouldn't be hidden, but in the real world it is also used to hide things that have to be hidden. As the president pointed out, while we hear frequently about intelligence failures, we rarely hear about intelligence successes, and we're not going to -- it's the nature of the beast. (I might add that while the knee-jerk critics are quick to point out that investigators haven't turned up evidences of intelligence coups from the phone data, they gloss over the president's point that his Review Group "turned up no indication that this database has been intentionally abused.")

Sure, I have lots of questions about what the president proposed -- not least, in many areas, what exactly he was proposing. But what, in addition to the major restructuring of the phone data collection and requirements for access to the data base, did the president talk about?

• Some serious loosening of the absolutely secrecy in which the FISC is shrouded. He pointed out that the administration has already begun a process for declassifying rulings of the court (already, he said, "we have declassified over 40 opinions and orders"), and he wants to regularize that with a view to making public whatever is determined can safely be made public. It won't be enough, but it will be something, and will shatter the assumption that everything the court does is by definition forbidden from public view.

Perhaps more important, for the first time the FISC will hear from someone other than the petitioner for the ruling. "To ensure that the Court hears a broader range of privacy perspectives, I am calling on Congress to authorize the establishment of a panel of advocates from outside government to provide an independent voice in significant cases before the Foreign Intelligence Surveillance Court."

• He has "approved a new presidential directive for our signals intelligence activities, at home and abroad," and he listed a bunch of considerations that would go into it, but as far as I can tell, he didn't say anything about what's actually in the directive.

* With regard between Americans and overseas parties: "I am asking the Attorney General and DNI [Director of National Intelligence] to institute reforms that place additional restrictions on government’s ability to retain, search, and use in criminal cases, communications between Americans and foreign citizens incidentally collected under Section 702."

• With regard to National Security Letters, "which can require companies to provide specific and limited information to the government without disclosing the orders to the subject of the investigation," and which John Cassidy's advance information said wouldn't be touched, he has "directed the Attorney General to amend how we use National Security Letters so this secrecy will not be indefinite, and will terminate within a fixed time unless the government demonstrates a real need for further secrecy." They "will also enable communications providers to make public more information than ever before about the orders they have received to provide data to the government."

* An overhaul is also promised in foreign data collection, and again contrary to John Cassidy's advance information he will ban eavesdropping on friendly foreign heads of state. This in any case seems to me to have been a wildly overblown issue, despite the obvious embarrassment of the disclosure of our spying on Chancellor Merkel. Ask yourself if there's any intelligence service that wouldn't be happy to be able to eavesdrop on foreign leaders, definitely including friendly ones.

• "I have also asked my Counselor, John Podesta,"

to lead a comprehensive review of big data and privacy. This group will consist of government officials who—along with the President’s Council of Advisors on Science and Technology—will reach out to privacy experts, technologists and business leaders, and look at how the challenges inherent in big data are being confronted by both the public and private sectors; whether we can forge international norms on how to manage this data; and how we can continue to promote the free flow of information in ways that are consistent with both privacy and security.

The president had talked earlier about the enormous and growing problem of data security and privacy in the private sector, and this really is part of the same discussion. And again, he seems genuinely interested in fostering discussion, which might be his answer to a piece like the Washington Post's Sean Sullivan's "How the public is unhappy with surveillance but unmoved, in one chart," which argues the surveillance issue is one --

on which the public opinion can be summed up like this: We don't like what we see, but it's not that big a deal for the government to address compared to other things.

Recent Gallup polling shows a couple of notable points: 1) A clear majority of Americans (63 percent) say they are dissatisfied with the state of the nation as it pertains to government surveillance of U.S. citizens and 2) It ranks low on the list of priorities they'd like to see Congress and the president address in the next year. Just 42 percent say it is an extremely or very important priority — placing it lower than more than a dozen other matters.

You can look at the chart yourself to see whether it explains anything for you. But perhaps the thinking is that bringing these issues out into the open for discussion may energize public thinking.

I'm sure the president had other proposals and discussion points. These are just the ones I picked out. They're hardly un-serious.


SO WHAT DIDN'T THE PRESIDENT TALK ABOUT?

One criticism of the president that I've encountered I can wholeheartedly second: that with the fixed concern on the necessity of the phone data collection, he gave no consideration to the blatantly worrying security concern many of us have over the dysfunction of our myriad security-involved agencies. By and large, when someone comes up with an example of a situation in which the meta-data could have saved the day, what should have saved the day was (a) better intra-agency handling of information already in its possession and (b) systems for inter-agency sharing of information. To a large degree, it seems clear, our intelligence people aren't suffering from too little information but from ineffectiveness at processing the information they already have. It would have been nice to know if the president had any thoughts about that.

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