Which Congressional NSA Reform Proposals Will the Obama Administration Now Support?

A lot of my reactions to yesterday’s surveillance reform speech by President Obama have already been captured by others, including David Cole in his thoughtful take over at Foreign Policy. I also found especially on point today’s “news analysis” piece in the New York Times by Peter Baker and Jeremy Peters, which emphasizes–quite rightly–the undeniable undercurrent of the President’s speech–that it’s now going to be up to Congress to continue this conversation and/or provide meaningful procedural and substantive reforms to bulk metadata collection; section 702 programs like PRISM; and so on. If I had a nickel for every time someone reacted to yesterday’s speech by saying that “the devil’s in the details”…

But whereas this reading of the speech has led many of the speech’s fans and detractors to suggest that President Obama largely passed the buck in his remarks yesterday, count me as one who thinks that this particular jury is still out–and will depend very much on the role the Administration plays, both behind the scenes and in front of the cameras, in shaping the inevitable legislative debate to come. That is to say, it seems to me that, its frustratingly equivocal language notwithstanding, yesterday’s speech could, in retrospect, simply be one step in a concerted campaign by this Administration to obtain–or resist–specific elements of the various reform proposals currently working their way through Congress, a campaign that will only be truly measurable in retrospect.

Consider, for example, President Obama’s clear–but largely non-specific–endorsement of some kind of “special advocate” to appear before the FISA Court. Here’s what he said in the speech:

To ensure that the court hears a broader range of privacy perspectives, I’m also 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.

As close followers of this debate well know, there are multiple variations on the “special advocate” proposal currently under consideration in Congress, including proposals by Rep. Schiff, Sen. Blumenthal, and the more widely discussed Leahy/Sensenbrenner and Feinstein bills. Among other things, the proposals contemplate (1) materially different roles for the special advocate (ranging from mandatory participation in most cases before the FISA Court to participation only when requested by FISC judges); and (2) materially different bureaucratic structures for the special advocate (including which branch it should be housed in; how it should be appointed; etc.). Perhaps the President meant to take a position on these proposals through the specific–if cryptic–phrases “outside government” and “significant cases,” but even if one could read so much into so little, there are still critical questions about what that would mean in practice. Does the Administration have no view on how those questions should be answered? Or will we hear more specifics in the days and weeks to come, either affirmatively or in response to questions at congressional hearings?

Indeed, readers may also recall that, at least thus far, Administration witnesses have not exactly been effusive in their praise of the “special advocate” concept at congressional hearings, with Deputy Attorney General Cole and ODNI GC Litt repeatedly alluding to “constitutional concerns” with such a position (most of which Marty Lederman and I have previously debunked). Will we no longer hear these concerns at future hearings? Or, if we do, might the Administration now seek to ameliorate these concerns to implement President Obama’s vision (such as it is), rather than simply assert them without elaboration?

Other examples from yesterday’s speech (in which the President endorsed a general idea without embracing specific means of implementation) abound. Indeed, it’s hard to disagree with the observation of the New York Times editorial board that “many of his reforms were frustratingly short on specifics and vague on implementation.” The Times frustration is that much more palpable given that (1) these issues did not crop up overnight; (2) the President received 46 specific proposals from his own handpicked review group to which he could have more directly reacted; and (3) Congress has been chewing on many–if not most–of these issues for months now. Simply put, what is most exasperating about yesterday’s speech is the extent to which it comes across as the President just now trying to break into a conversation that’s seven months old. But whereas those who have been critical of the speech have assumed that it signifies the President’s cessation of the reform agenda to Congress, it seems to me that there is still a very significant role for the Administration to play–and that it would be premature to assume that yesterday’s speech was the last we’ll hear on these questions from the White House. That only makes the optics of the speech that much odder, in my view–but it also means we might all reserve judgment on the merits, at least for the time being. 

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About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).