FISA: Reform

Notes in Advance of the President's Speech

By Benjamin Wittes
Thursday, January 16, 2014, 4:38 PM

I keep getting media inquiries today asking me for predictions about what President Obama is going be saying tomorrow. Short answer: How the heck should I know? The President's speech-writing team doesn't confide in the likes of me.

For whatever it's worth, here are a couple of thoughts about what I think is important and what I'll be looking for in tomorrow's speech.

First, tone is everything. We're not going to see a revolution in surveillance authorities announced tomorrow, the fantasies of the Wall Street Journal editorial page notwithstanding. We're also not going to see a man-the-barricades, defend-everything speech. According to most of the news stories---read: trial balloons---we're going to see a maintaining of the core of NSA's authorities, with some self-imposed policy limitations layered on top, and some requests for congressional changes in the area of enhanced oversight and transparency. So the question becomes how the President talks about all of this. Is it, as he has spoken of drones, a full-throated defense of his policies combined with a recognition that certain legitimizing restraints and changes are necessary to make them more accepted? Or does he cast himself as the president who---in his sixth year in office and only after Edward Snowden forced his hand---has discovered such values affinity with a left-wing base and their right-wing allies that is going to rein in NSA? Or does he try to do both at once or somehow thread the needle between them? Obama's tone will matter hugely both to how much his speech resonates with civil libertarians and how it plays in the intelligence community, where the anxiety that the White House has hung NSA out to dry is pretty widely held.

Second, while everyone will be listening for what Obama says about bulk metadata collection, the far more important question is what he does or doesn't say about changes to 702 collection. Bulk metadata is, in some respects, the molten core of the political fight over NSA. It was the first thing that leaked, after all; it involves the most surprising and controversial legal position the government takes concerning its authorities. And it involves the comprehensive acquisition of huge quantities of data about Americans. So the firestorm over it makes a certain amount of sense. That said, it is not remotely the most important program at issue either in the Snowden leaks or in Review Group report and the parameters for movement on it are, in any event, not all that great. After all, even the Review Group did not propose ending the capability to query databases of telephony metadata, so the question at this stage seems to be one of terms and logistics. The 702 program is orders of magnitude more important than the 215 program, as is collection under Executive Order 12333. So the real action in this area will lie in whatever policy and legal constraints Obama proposes to Congress or imposes on his own with respect to those---though the headlines might well follow the drama, or lack thereof, of what he ends up saying about bulk metadata.

Third, structural reform of the FISA Court system is the low-hanging fruit politically for an administration seeking reform. Endorsing changes in the way the FISC judges get appointed, supporting a public advocate for FISA adjudications, and pushing greater transparency all cost the administration relatively little. They don't, after all, involve new substantive limits on what NSA can collect or new legal hurdles for the administration to clear. Some of these reforms---the transparency, for example---could be salutary. Others, like the public advocate idea, might be useful or corrosive and constitutionally problematic depending on how it is done. Others, like changing the court's appointment system, would be totally unresponsive to any problem that really exists. They will be tempting, however, because they shift the costs of reform onto the FISC and the judiciary, rather than letting the executive bear their weight.

Fourth and finally, it will be very interesting to see who the President thinks his audience for this speech is. Is it US citizens of both the Left and the Right angered by the stories of NSA collection? Is it US industry, which has a huge problem on its hands with respect to overseas markets in the wake of the Snowden leaks and needs to clarify to those markets that it is not an arm of NSA? Is it Congress, which the administration will need for any more ambitious reforms but where the administration also needs to head off action which it doesn't support? Or is it foreign governments and populations, some of which are shocked, shocked by the revelations of US activity and some of which are just shocked by them? Or is it some combination of these? The speech will sound very different depending on which audience Obama considers the primary one.