Why Obama's Hints at Intel Reform Are Mostly Window Dressing

Eventually, President Barack Obama is going to have to go on the offensive in the debate over how to reform American intelligence gathering practices, and on Friday, he offered a few hints as to how he might do so.

In an end-of-year press conference before he left for his Hawaii vacation, Obama signaled a willingness to place control of a controversial database of telephone records in the hands of a third-party. Additionally, the president said that he may be willing to grant foreigners some privacy protections.

"It is possible, for example, that some of the same information that the intelligence community feels is required to keep people safe can be obtained by having the private phone companies keep these records longer and to create some mechanism where they can be accessed in an effective fashion," Obama said in reference to the mass-collection of phone metadata. "That might cost more. There might need to be different checks on how those requests are made. There may be technological solutions that have to be found to do that."

That program, which forces U.S. telecom companies to provide comprehensive telephone records to the NSA, stands at the center of the debate over whether the agency has acted too aggressively and potentially violated civil rights. On Monday, a Federal District Court judge said that mass-collection of Americans' phone records all but certainly violates the Constitution, and on Wednesday, a presidentially appointed panel released a report arguing that the collection of such records ought to be seriously curtailed.

Of the many reform proposals that have been floated since NSA documents leaked by Edward Snowden began appearing in the press, the scheme to place control of the massive phone records database in the hands of a third party has gained particular traction. Administration officials have signaled a willingness to consider the proposal, and on Friday, it gained its most important, if reluctant, backer yet. While the president certainly didn't go so far as to say he plans to implement the proposal, it is unlikely that Obama would reference the idea in such a positive light in a public forum. In Washington-parlance, it's called sending up a trial balloon.

Despite the apparent embrace of the proposal, the telecom industry and privacy advocates are less than enthused about it. Telecom companies are loathe to take on responsibility for what would be costly, highly controversial database. Privacy advocates contend the proposal does little to address concerns about drag-net surveillance and that such a database would be a ripe target for hackers.

Those privacy advocates certainly have a point: While the proposal would arguably make it more difficult to carry out searches of Americans' phone records, it wouldn't eliminate the NSA's ability to do so. That's likely part of the reason why administration officials are willing to get behind the idea. It provides a highly public fix to a deeply controversial program while at the same time not significantly altering the agency's intelligence-gathering capabilities. That's what the White House would call a win-win.

That's a reality basically acknowledged by the president Friday. "Programs like 215 could be redesigned in ways that give you the same information when you need it without creating these potentials for abuse, and that's exactly what we should be doing, is to evaluate all these things in a very clear, specific way and moving forward on changes," Obama said, referring to the section of the Patriot Act often used to authorize such collection. "And that's what I intend to do." At another point of the press conference he put it this way: "There may be another way of skinning the cat." The key point is that the cat -- the metaphorical objective of intelligence gathering -- is still getting skinned.

But on another key point of proposed intelligence reform, privacy advocates may have more to celebrate. In his remarks, the president also said that he may be willing to extend some privacy protections to foreigners. Noting that American intelligence agencies have had "had less legal constraint in terms of what we're doing internationally," Obama said that "in a virtual world, some of these boundaries don't matter anymore." That, Obama implied, may require the NSA to reconsider how it values foreigners' privacy rights. "Just because we can do something doesn't mean we necessarily should, and the values that we've got as Americans are ones that we have to be willing to apply beyond our borders, I think, perhaps more systematically than we've done in the past," he said.

The distinction between the privacy rights of Americans and foreigners has become a central fault line in the debate over intelligence gathering in the aftermath of Snowden's disclosures. Some civil liberties advocates have argued that the NSA's most egregious offenses lie in the collection of Americans' data and that surveillance against foreigners falls well within the purview of the agency's mandate. More ardent privacy activists consider any and all dragnet surveillance a violation of individual rights -- regardless of the target's nationality. In his remarks, Obama at the very least appeared sympathetic to the argument that the NSA should not be carrying out wholesale intelligence operations against foreigners.

But the likelihood of Obama carrying out serious intelligence reform still remains highly unlikely. Twelve years after the attacks of 9/11, the politics of such reform efforts are still firmly stacked in favor of the intelligence community. In a revealing exchange with Fox News' Ed Henry, Obama made clear why he remains loathe to strip the NSA and its brethren of their powers. Challenged by Henry as to whether he had been consistent in his statements about the appropriateness of NSA programs, Obama made clear that it's nearly all but impossible for him not to support the agency. "If something slips, then the question that's coming from you the next day at a press conference is, 'Mr. President, why didn't you catch that? Why did the intelligence people allow that to slip? Isn't there a way that we could have found out that in fact this terrorist attack took place?" said Obama.

That's a political riddle that civil rights advocates still haven't been able to solve. Few politicians are willing to go on the record rolling back intelligence-gathering powers if they are going to be blamed down the road for curtailing tools that might have stopped an attack. But this week, civil rights advocates were handed their most powerful argument yet in trying to roll back bulk collection: The methods just don't work. The panel convened to evaluate NSA intelligence gathering activities and which released its report on Wednesday, said it was completely unconvinced that the collection of telephone records had stopped any terror plots. The federal judge that called such activities in all likelihood unconstitutional made a similar conclusion.

Those are two powerful datapoints for civil liberties activists. But significant political hurdles still remain for serious reform. As evidenced by his comments, Obama remains reluctant to scale back intelligence gathering and have to pay a political price later on.

Equally important, an influential group of legislators on Capitol Hill continue to defend bulk-collection methods. "The NSA's metadata program is a valuable analytical tool that assists intelligence personnel in their efforts to efficiently ‘connect the dots' on emerging or current terrorist threats directed against Americans in the United States," Sen. Dianne Feinstein (D-CA), Sen. Saxby Chambliss (R-GA), Rep. Mike Rogers (R-MI), and Rep. Dutch Ruppersberger (D-MD) said in a statement Friday. "The necessity of this program cannot be measured merely by the number of terrorist attacks disrupted, but must also take into account the extent to which it contributes to the overall efforts of intelligence professionals to quickly respond to, and prevent, rapidly emerging terrorist threats." Collectively, those four legislators make up the leadership of the House and Senate intelligence committees.

There can be no doubt that Snowden has completely changed the conversation about American intelligence gathering. What he hasn't done is change the politics in Washington. At least not yet.

SAUL LOEB/AFP/Getty Images


Sochi Watch: Why Tsar Putin Released His Arch-Nemesis

Like any good royal, Vladimir Putin couldn't be bothered to make an act of clemency the main event of his Thursday press conference. Instead, he casually revealed at the end of the four-hour affair that he planned to pardon Mikhail Khodorkovsky, the imprisoned former oil tycoon who came to be known as Putin's number one foe.

Respectfully referring to Khodorkovsky by his patronymic name, "Mikhail Borisovich," Putin said that the oligarch had written to him with an appeal for pardon. "He has already spent more than 10 years behind bars, it's a tough punishment. He is citing humanitarian reasons, his mother is ill. Taking all this into account it is possible to make the decision," Putin said.

Less than 24 hours later, Khodorkovsky, who had been serving a ten year sentence for fraud and embezzlement, boarded a chopper for St. Petersburg and was later spirited to Berlin, where he would be reunited with his family.

Putin's shocker of a statement resulted in public relations mayhem in the Khodorkovsky camp. "Regardless of the circumstances of the pardoning (including the possible family reasons), the pardoning of Mikhail Khodorkovsky is a huge positive step for Russia. Congratulations to everyone who waited so long for this day," Vladimir Karza Murza, senior advisor at the Institute of Modern Russia, a think tank run by Khodorkovsky's son, Pavel, told Foreign Policy by email Thursday.

Many news outlets reported that neither Khodorkovsky's lawyer, nor his family were aware of the pardon request. One of his lawyers, Vadim Klyuvgant told the RAPSI news agency Thursday that Khodorkovsky "did not apply [for a pardon] and we have no information that anyone has applied on his behalf recently."

In a strange twist, his team then backtracked on that statement. "Until his legal team can meet with Mikhail Khodorkovsky, it cannot be commented on whether a request on a pardon was made, by whom and for what reasons," read a statement on Khodorkovsky's web page.

On Friday, Khodorkovsky himself released a statement saying that he asked Putin on Nov. 12 to pardon him "due to [his] family situation" -- a reference to his ailing mother -- and that he was "glad his decision was positive."

As with anything in this case -- or Russian politics in general for that matter -- it can be difficult to distinguish the difference between hard facts and calculated disinformation. With a stellar legal team behind him and deep pockets with which to pay them, why would Khodorkovsky's lawyers ever be confused on such a simple, essential question? Over at the New Republic, Julia Ioffe reports that anonymous reports in the Russian press hinted that the decision to pardon Khodorkovsky, arguably Russia's most prominent political prisoner, was hammered out in private meetings between the former oil magnate and representatives of the security services. That would certainly account for the confusion among Khodorkovsky's legal team, but it may be little more than unfounded speculation.

Regardless of how the deal came about, the move has been widely interpreted as a bid for some positive publicity before next year's Olympic games in Sochi. "He played this card beautifully," British journalist and Russia expert Peter Pomerantsev told Foreign Policy

According to Pomerantsev, Putin's move should be seen as carrying two different messages, the content of which depends on the audience. Internationally, the timing was perfect. "It's a nice thing to do before the Olympics," said Pomerantsev. At home, however, Khodorkovsky's release serves as yet another show of Putin's absolute power. Like a king graciously pardoning his victim, the message he is sending in Russia is one of unrelenting control. By releasing a man once seen as a main rival, he shows that he is no longer fazed by Khodorkovsky. "I broke this man," he seems to be saying, according to Pomerantsev.

But even if Putin would like to spin Khodorkovsky's release as a pure demonstration of his stranglehold on Russian politics, that isn't entirely true. Russia has in recent months come under intense scrutiny for its human rights record, in particular because of a crackdown on its gay minority. That scrutiny has been amplified by the Sochi Olympics, which a litany of world leaders have now declared they won't attend. It's a painful snub that Putin would like to avoid. In the words of Masha Gessen, the release of Khodorkovsky came because "the prospect of standing alone [at Sochi], or only with the president of Ukraine for company, began to look real for the first time." That's a scene the image-conscious Putin would never countenance. As a result, the argument goes, he moved to release Khodorkovsky and win some favorable headlines in the Western media.

That calculation may have been spurred in part by the Obama administration's decision to send an insultingly low-profile delegation to Sochi, which will be headed by a former director of the Department of Homeland Security, Janet Napolitano. No cabinet level official will be attending, and President Obama will be staying away. (It does include a handful of prominent gay athletes in defiance of Russia's anti-LGBT laws.) French President Francois Hollande won't be in attendance either, and the guest list of heads of state will now be more notable for who will be in attendance rather than those who choose to stay away.

So who would want to stand next to Putin on the dais? The Russian president would like to make that prospect slightly more appetizing, which may have led him to release the jailed oil baron. The timing indeed seemed auspicious -- but then, Putin never appeared to care all that much what the Western world thought about him. "When it comes to certain core things, especially things on which the West pressures him, Putin will demonstrably, theatrically not give a fuck," Ioffe writes. For an example of that mentality, look no further than Syria and Edward Snowden.

Arguing that the release of Khodorkovsky was a direct result of Obama's decision not to watch a hockey match or a bobsled competition is undoubtedly a stretch. But Putin is not Kim Jong Un -- a dictator isolated from the rest of the world with few friends aside from Dennis Rodman. He is a leader who has to deal with his partners around the world and one that deeply cares about his image.

One look at the photos of Putin shirtless astride a horse, tells you all you need to know. This is a man who wants to project a certain image to Russia and the world -- one of strength, virility, and independence.

Having all your most popular friends refuse to come to your party doesn't mesh with that image.