The President Distances Himself from the NSA

by John Yoo

The big news out of the press conference is President Obama’s waffling on the NSA. The president is commander-in-chief and responsible for our government’s national security operations. Yet Mr. Obama talks about the NSA as if it were some group of agents outside the executive branch, and that it is an interesting to talk about reforming it.

His job is not to engage in an academic debate about the perfect design of the intelligence agencies, but to explain to the American people whether the NSA’s surveillance programs have been working. As president, he has access to everything that the NSA does, and he is ultimately responsible for its activities. If there have been any abuses, he should explain why and what he has done to repair matters. All of the evidence, even from the White House’s own independent commission, has not revealed any real abuses of the surveillance program (unlike, say, the IRS’s persecution of tea-party groups).

But instead of defending the NSA program, President Obama seems more worried about whether the NSA should be more restrained in wiretapping communications that takes place outside the U.S. Although he says he will study the problem and give a major speech next year, watch for Obama to try to shift as much authority over intelligence as he can to Congress or the courts for oversight. President Obama clearly does not like the heavy national-security responsibilities of his office, and with Gitmo, the trial of terrorists, and Syria, he will do his best to offload the job onto others.

— John Yoo is Emanuel S. Heller Professor of Law at the University of California, Berkeley.