Obama’s FISA Court Smokescreen

President Obama is making good sounds about reforming the process of the Foreign Intelligence Surveillance (FISA) Court’s review of National Security Agency (NSA) requests to surveil the public through collection of phone records. But is there reason to trust him? After all, back in June Obama lied to the public about FISA Court transparency on the Charlie Rose show, earning a “pants on fire” rating from Politifact, so there’s reason to receive his new proposals skeptically. And to my eye they are a classic smokescreen, designed to guve the appearance of action while doing nothing.

First he proposes to set up an ad hoc committee to review section 215 of the Patriot Act, where NSA claims its authority to surveil the public. It certainly needs review, but committes are a great way to stall on an issue until the public has shifted its attention to other things. And we’re talking about legislation here, which is in Congress’s purview and which already has several reform proposals circulating. An executive branch reform committee serves only to try to wrest agenda control away from Congress, which means executive branch concern that Congress won’t protect executive interests enough, which means the President doesn’t want meaningful reform. Of course he has already made clear that he doesn’t see the need for it, when he said that NSA surveillance was not a threat to civil liberties.

Second, Obama said the Justice Department would provide an analysis of the legal rationale for the surveillance programs. This isn’t even a bluff at reform, but just an effort to find a more politically persuasive justification than they’ve managed so far. OK, it’s not outside the realm of possibility Justice (an executive branch agency) will conclude that NSA (an executive branch agency) has no legal authorization to collect our phone records, but what would we expect to happen in that event? President Obama says, “Gee, I guess we better just stop doing that,” or an all-out effort to pass legislation making sure such data collection is for realsies duly authorized?

Third, Obama promises to create a civil liberties advocate to represent the public’s privacy interests before the FISA court. This one superficially sounds functional, but civil liberties folks shouldn’t get too excited, because this is a position designed to fail. First, the person will be appointed by the president, and maybe one or two presidents in the future will appoint a serious advocate, but most will appoint someone who knows their real job is to not get in the way of the intelligence agencies. That is, if they don’t simply appoint John Yoo types. But even a real civil liberties advocate s going to fail in this position, because they will not be given all the information the intelligence agencies have–there will be no process of discovery–so they will be handicapped in making an effective legal argument.

Obama says the reforms will “help restore public confidence,” which itself is a smokescreen. The adulterer who promises his wife he’ll never cheat again, while he secretly has his fingers crossed behind his back, hopes to restore her confidence, becase that will make it easier for him to cheat again. What is needed is for the government to earn our trust. There’s no sign yet that Obama is interested in doing that.

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About James Hanley

James Hanley is Associate Professor of Political Science at Adrian College and a Fellow of the Institute for Social Policy and Understanding. The views expressed here do not reflect the views of either organization.
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