Before Barack Obama became president, he reveled in the irresponsibility of his powerlessness. He could denounce Bush-administration counterterrorism initiatives from a glorious position of civil-libertarian purity and posit the need to strike a perfect balance “between privacy and security.”
Then he got elected president, and the mere posturing had to end. He had to grow up. Invested with responsibility for keeping the country safe and, no doubt, informed of potential threats in hair-raising terms on a daily basis, he jettisoned his innocent civil libertarianism. In light of what were dire and real threats to our security, he had no choice but to use the surveillance powers of the government to foil them.
Now, President Obama thinks the Goldilocks balance he has always spoken of is struck by a vast National Security Agency monitoring program that vacuums up the phone records of all Americans. There is poetic justice in hearing the president excoriated in exactly the same terms as President George W. Bush was, by the very same people who worked to get him elected to end the terrible abuses of the Bush-Cheney regime. They are venting their sense of betrayal, but the fact is that — in least this respect — Obama grew up and they didn’t.
As president, he didn’t have the luxury of turning his back on Bush policies merely because they were Bush policies. In his press conference Friday, he said of the NSA program that upon taking office, he concluded that “on net, it was worth us doing.” Whereas his allies can either pretend that the terror threat doesn’t exist or that there are easy and simple ways of combating it, he has to deal with it in the real world. As he said of the programs on Friday, “My assessment and my team’s assessment was that they help us prevent terrorist attacks.” Finally, he can’t celebrate leaker Edward Snowden, who portrays himself as a brave freedom fighter, then runs off into the arms of dictatorial China to hide after violating our laws.
There seems little question that the NSA programs are constitutional and legal. The Internet element is directed at foreigners overseas to whom our Fourth Amendment doesn’t apply. In The New Republic, Robert Chesney and Benjamin Wittes write about this aspect of the Snowden leak, “There is nothing in the story that does not reflect exactly what someone who understands the law of this area would have predicted.” Although, they note, that didn’t stop the Washington Post from publishing what online platforms we are monitoring, useful information for anyone trying to evade our surveillance.
As for the phone program, it involves metadata — i.e., phone numbers dialed, and for what duration, and from where — that courts have held aren’t protected by the Fourth Amendment the same way that the actual content of conversations are. Congress authorized the program, albeit somewhat vaguely, in Section 215 of the USA Patriot Act. The question here isn’t whether Obama is lawless or shredding the Constitution any more than that was the question to ask George W. Bush. It is whether the program is proportionate and wise.
The metadata are fed into the maw of government algorithms. It is only anomalies that, assuming a court warrant can be obtained, get more attention. But the government is nonetheless sweeping up the records of Americans who have done nothing to earn anyone’s suspicion. The information lands on the desktops of the likes of Edward Snowden, who, it turns out, isn’t a very reliable custodian of sensitive data. Defenders of the program say that there has not yet been a demonstrated instance of abuse. But at the time of the Internal Revenue Service scandal, this isn’t so reassuring.
The Snowden leak was wrong, but at least it makes possible an open debate about the program that might lead to useful tightening and new controls. Years ago, Barack Obama’s contribution to that debate might have been as hyperbolic and irresponsible as that of his disappointed friends. Now, evidently, he knows better.