Highlights and Analysis of President Obama’s Appalling NSA Speech

by Gerard Emershaw

President Obama’s January 17, 2014 speech on NSA surveillance may cause some devoted progressives to claim that the Commander-in-Chief has seen the light on civil liberties. However, anyone who listened to the speech with his or her ears rather than a deaf progressive heart understands how the President said nothing encouraging in terms of willingness to fulfill his duty to defend the Constitution. 

1. Isn’t spying on our enemies different from spying on our citizens?

President Obama pointed out that the United States government has a long history of employing various types of surveillance in an effort to keep the nation and its citizens safe:

At the dawn of our Republic, a small, secret surveillance committee borne out of the “The Sons of Liberty” was established in Boston. And the group’s members included Paul Revere. At night, they would patrol the streets, reporting back any signs that the British were preparing raids against America’s early Patriots. Throughout American history, intelligence has helped secure our country and our freedoms. In the Civil War, Union balloon reconnaissance tracked the size of Confederate armies by counting the number of campfires. In World War II, code-breakers gave us insights into Japanese war plans, and when Patton marched across Europe, intercepted communications helped save the lives of his troops. After the war, the rise of the Iron Curtain and nuclear weapons only increased the need for sustained intelligence gathering. And so, in the early days of the Cold War, President Truman created the National Security Agency, or NSA, to give us insights into the Soviet bloc, and provide our leaders with information they needed to confront aggression and avert catastrophe.

However, what the President failed to note is that spying on the Confederacy, the Axis Powers, and the Soviets were different than spying on American citizens with the NSA through the bulk collection of metadata. No rational American would criticize spying on dangerous enemy governments. The NSA and other American intelligence agencies can spy on China, Russia, and even allies such as Germany. These agencies can also spy on terrorist groups like Al Qaeda. But why do they need to spy willy nilly on American citizens?

2. Don’t bring up a cautionary tales if they don’t make you proceed with caution.

President Obama discussed the Constitution, the checks and balances built into the American form of government, totalitarianism, and past abuses by American intelligence agencies:

Throughout this evolution, we benefited from both our Constitution and our traditions of limited government. U.S. intelligence agencies were anchored in a system of checks and balances—with oversight from elected leaders, and protections for ordinary citizens. Meanwhile, totalitarian states like East Germany offered a cautionary tale of what could happen when vast, unchecked surveillance turned citizens into informers, and persecuted people for what they said in the privacy of their own homes.

In fact, even the United States proved not to be immune to the abuse of surveillance. And in the 1960s, government spied on civil rights leaders and critics of the Vietnam War. And partly in response to these revelations, additional laws were established in the 1970s to ensure that our intelligence capabilities could not be misused against our citizens. In the long, twilight struggle against Communism, we had been reminded that the very liberties that we sought to preserve could not be sacrificed at the altar of national security.

But what is the point of bringing up cautionary tales if these tales do not make you cautious? One of the most important checks against tyranny from the federal government has been the Fourth Amendment, yet President Obama did not refer specifically to it even once during his speech. He brought up Stasi East Germany, but he failed to recognized that the NSA, FBI, and CIA are beginning to resemble East Germany’s Stasi and that the Department of Homeland Security’s “see something, say something” campaigns have attempted to turn Americans into informers. The fact that the United States government has used its vast spying apparatus against its own people on so many occasions—COINTELPRO, Operation CHAOS, Nixon’s “Plumbers,” Project Shamrock, Project MKUltra, Operation Northwoods, etc.—should lead President Obama to realize how close the nation can come to becoming a totalitarian surveillance state.  It is one thing to say that “the very liberties that we sought to preserve could not be sacrificed at the altar of national security” and another thing entirely to mean it. Meaning it requires being ever-vigilant in preserving natural rights regardless of what threats—even if existential—the nation faces. Being truly aware of “cautionary tales” such as Stasi East Germany and the various violations of rights by American intelligence agencies which the Church Committee revealed in the 1970s means making it a priority to oversee these executive agencies. President Obama has at most given lip service to this responsibility. At worst he has cynically pretended to do it while in fact helping these security agencies violate Constitutional rights.

3. Neoconservative in Progressive’s clothing?

President Obama sounded like Vice President Dick Cheney or some member of a 1990s neocon think tank when he said:

If the fall of the Soviet Union left America without a competing superpower, emerging threats from terrorist groups, and the proliferation of weapons of mass destruction placed new and in some ways more complicated demands on our intelligence agencies. Globalization and the Internet made these threats more acute, as technology erased borders and empowered individuals to project great violence, as well as great good.  
     

Terrorist threats are overblown. Threats of the proliferation of weapons of mass destruction are also overblown. Unlike something from Fox’s “24” or a novel by the late Tom Clancy, “suitcase nukes” do not grow on trees. Nuclear weapons are difficult to create and difficult to maintain. Hostile or potentially hostile nuclear nations have every reason to avoid allowing any proliferation. While the United States has shown caution in getting involved with military confrontations with nuclear powers, does anyone doubt that if terrorists obtained and used a nuclear weapon and this weapon could be traced to North Korea, Pakistan, etc, that the United States would not respond with a “shock and awe” military strike against such a nation? Terrorism does not pose an existential threat to the nation as did the Axis during World War II or the nuclear armed Soviet Union during the Cold War. If anything, the United States should be doing less spying and not more. If anything, the American people are finally owed the peace dividend from the ending of the Cold War.

Like the ruthless yet clueless neocons in the administration that preceded his, President Obama shamelessly invoked 9/11:

The horror of September 11th brought all these issues to the fore. Across the political spectrum, Americans recognized that we had to adapt to a world in which a bomb could be built in a basement, and our electric grid could be shut down by operators an ocean away. We were shaken by the signs we had missed leading up to the attacks—how the hijackers had made phone calls to known extremists and traveled to suspicious places.

Adapt? How about not escalating the Afghanistan War? How about not unconstitutionally attacking Libya? How about not trying to gin up a war against Syria? How about watching China and Russia—who actually probably can shut down the electric grid—instead of watching ordinary Americans? How about paying attention to obvious signs like memos stating that Al Qaeda is poised to strike?

President Obama even shamelessly evoked the debunked lie about how 9/11 could have been prevented if the NSA had been bulk collecting metadata at the time:

Why is this [NSA bulk collection of metadata] necessary? The program grew out of a desire to address a gap identified after 9/11. One of the 9/11 hijackers—Khalid al-Mihdhar -- made a phone call from San Diego to a known al Qaeda safe-house in Yemen. NSA saw that call, but it could not see that the call was coming from an individual already in the United States. The telephone metadata program under Section 215 was designed to map the communications of terrorists so we can see who they may be in contact with as quickly as possible.

Without the bulk collection of metadata, the United States knew the identity of Khalid-al-Mihdhar well before 9/11 and knew exactly where to find him. They just failed to do so. The NSA, FBI, CIA, and their sister intelligence agencies in the federal government were all negligent prior to 9/11. Should negligent actors be awarded more power? If too much was slipping through the cracks then, why give these agencies even more hay—in the form of metadata—to obscure the needles for which they are searching?  

4. Pot, meet kettle.

President Obama pulled out one of his favorites from his bag of tricks—blaming President Bush:

And yet, in our rush to respond to a very real and novel set of threats, the risk of government overreach—the possibility that we lose some of our core liberties in pursuit of security—also became more pronounced. We saw, in the immediate aftermath of 9/11, our government engaged in enhanced interrogation techniques that contradicted our values. As a Senator, I was critical of several practices, such as warrantless wiretaps. And all too often new authorities were instituted without adequate public debate. 

As usual, the President did not let the facts get in the way of a good story. Enhanced interrogation? What is the difference between doing it and having some ally do it in a secret prison overseas after you have allowed terror suspects and others to be whisked away using extraordinary rendition? How was Bush’s warrantless wiretapping any worse than what the NSA has done on President Obama’s watch?

5. President Obama’s War on Whistleblowers will continue.

President Obama has been notoriously hard on whistleblowers. He assured us that he will continue to fight this war in earnest: 

And given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or his motivations; I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it into their own hands to publicly disclose classified information, then we will not be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.

Without whistleblowers, how would the people ever learn of abuses done by clandestine government organizations? One wonders if President Obama believes that Woodward, Bernstein, and Deep Throat should all have been prosecuted under the 1917 Espionage Act.

6. Friend of false dilemma.

President Obama implied time and time again that one can either accept that the NSA must violate Constitutional rights or one believes that the nation should disarm its intelligence agencies. This is the kind of black and white thinking that made President George W. Bush infamous. It turns out that President Obama is also skilled in such fallacious thinking:

First, everyone who has looked at these problems, including skeptics of existing programs, recognizes that we have real enemies and threats, and that intelligence serves a vital role in confronting them. We cannot prevent terrorist attacks or cyber threats without some capability to penetrate digital communications—whether it’s to unravel a terrorist plot; to intercept malware that targets a stock exchange; to make sure air traffic control systems are not compromised; or to ensure that hackers do not empty your bank accounts. We are expected to protect the American people; that requires us to have capabilities in this field. Moreover, we cannot unilaterally disarm our intelligence agencies.

Who was suggesting that the United States disarm its intelligence agencies? This is like saying that anyone who opposes unnecessary and unconstitutional uses of military force believes that the United States should disarm its military and throw up the white flag to its enemies around the globe. President Obama again and again misses the point. Surveilling foreign governments and terrorists is necessary. Nobody is denying that. But why does that mean that the NSA should be collecting information on citizens domestically without probable cause or even suspicion? Why is the federal government targeting American citizens at all when all the 9/11 plotters were foreign?

7. No such thing as double standards.

President Obama claimed that employees of the NSA and other intelligence agencies can be trusted because they are just like us:

Second, just as ardent civil libertarians recognize the need for robust intelligence capabilities, those with responsibilities for our national security readily acknowledge the potential for abuse as intelligence capabilities advance and more and more private information is digitized. After all, the folks at NSA and other intelligence agencies are our neighbors. They're our friends and family. They’ve got electronic bank and medical records like everybody else. They have kids on Facebook and Instagram, and they know, more than most of us, the vulnerabilities to privacy that exist in a world where transactions are recorded, and emails and text and messages are stored, and even our movements can increasingly be tracked through the GPS on our phones.

Uh, members of the Gestapo, the KGB, and the Stasi were just like ordinary Germans, Soviets, and East Germans. So why did members of those organizations not “readily acknowledge the potential for abuse?” Could it be that members of spy agencies have the ability to exempt themselves and their family members? What is to prevent members of the NSA from formulating a policy of not surveilling employees, friends, and family of the agency? If Obamacare has taught us anything, it is that the President has no trouble with making unjustified exceptions to rules. So why not here as well?

8. Okay, I’m a crook, but look at that bigger crook over there!

President Obama essentially acknowledged that the federal government is violating the privacy of its citizens, but he distracted his audience by pointing to another culprit:

Third, there was a recognition by all who participated in these reviews that the challenges to our privacy do not come from government alone. Corporations of all shapes and sizes track what you buy, store and analyze our data, and use it for commercial purposes; that’s how those targeted ads pop up on your computer and your smartphone periodically. But all of us understand that the standards for government surveillance must be higher. Given the unique power of the state, it is not enough for leaders to say: Trust us, we won’t abuse the data we collect. For history has too many examples when that trust has been breached. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends on the law to constrain those in power.

It is no secret that President Obama the corporatist does not like business—unless it is a business that gives campaign contributions to his party. He basically said: “Hey, the corporations are violating your privacy, too!” So what? He claims that the government should have a higher standard. But the thing is that the government is becoming unaccountable. One has a choice whether or not to do business with a corporation that violates privacy. If you do not like the policies of Facebook, then you can delete your account. If you think that Google is probing too much, then you can use other websites and online services. If you think that Amazon is spying too much on your internet activity, then you can shop elsewhere. The bottom line is that there is at least a small check against private businesses in that angry customers and others can boycott them. The two major political parties are two sides of the same rotten penny, so “throwing the bums out” will not do a thing.

9. Playing the King card.

President Obama, as he often does, referenced Martin Luther King:

In fact, during the course of our review, I have often reminded myself I would not be where I am today were it not for the courage of dissidents like Dr. King, who were spied upon by their own government.

How are those like Snowden and Manning not dissidents? At this point it seems likely that if Martin Luther King were still alive, President Obama would be spying on him. It is also plausible that Reverend King might be facing a charge under the 1917 Espionage Act or living in forced exile.

10. Fox guarding the hen house.

President Obama promised greater executive oversight:

First, I have approved a new presidential directive for our signals intelligence activities both at home and abroad. This guidance will strengthen executive branch oversight of our intelligence activities. 

President Obama has hardly proven himself to be a friend of the Constitution. The centerpieces of his presidency—Obamacare and the Libyan “kinetic military action”—both involved egregious violations of the Constitution, so how can he be trusted to provide adequate oversight?

11. Most transparent administration.

President Obama also claimed that there will now be more transparency:

Second, we will reform programs and procedures in place to provide greater transparency to our surveillance activities, and fortify the safeguards that protect the privacy of U.S. persons.

The President has claimed time and time again that his is “the most transparent” administration ever. Repeating this claim over and over does not make it any more true—or any less ridiculous. The Obama administration has been anything but transparent with its army of lawyers fighting Freedom of Information Act requests, its War on Whistleblowers, its secretive drone campaign, etc. However, even if he does turn over a new leaf, transparency is not enough. Being transparent about the violation of rights does not make those actions any less unconstitutional.

12. Whatever happened to probable cause?

The Fourth Amendment states that warrants shall not issue without probable cause. President Obama defended the NSA bulk metadata collection program by stating:

This brings me to the program that has generated the most controversy these past few months—the bulk collection of telephone records under Section 215. Let me repeat what I said when this story first broke: This program does not involve the content of phone calls, or the names of people making calls. Instead, it provides a record of phone numbers and the times and lengths of calls—metadata that can be queried if and when we have a reasonable suspicion that a particular number is linked to a terrorist organization.

In sum, the program does not involve the NSA examining the phone records of ordinary Americans. Rather, it consolidates these records into a database that the government can query if it has a specific lead—a consolidation of phone records that the companies already retained for business purposes. The review group turned up no indication that this database has been intentionally abused. And I believe it is important that the capability that this program is designed to meet is preserved.

Reasonable suspicion? Whatever happened to probable cause? It is the reasonable suspicion standard which causes the greatest problem. If the government has all this data in a big database and can dig deep into it with merely a claim of reasonable suspicion, then there is simply no way to protect the rights of American citizens. Unless and until the Fourth Amendment is fully restored and probable cause is again treated as the exceptionless standard it was intended by the Founders to be, then no safeguards will help.

13. Fascism or corporatism? Take your pick.

President Obama suggested two possible reforms to NSA bulk collection of metadata:

The review group recommended that our current approach be replaced by one in which the providers or a third party retain the bulk records, with government accessing information as needed. Both of these options pose difficult problems. Relying solely on the records of multiple providers, for example, could require companies to alter their procedures in ways that raise new privacy concerns. On the other hand, any third party maintaining a single, consolidated database would be carrying out what is essentially a government function but with more expense, more legal ambiguity, potentially less accountability—all of which would have a doubtful impact on increasing public confidence that their privacy is being protected.

Six of one, a half dozen of the other. What difference does it make if the NSA itself has this data or some third party does? Furthermore, such collaboration between government and private entities in such nefarious matters just stinks of fascism or corporatism. When government and corporations collaborate in such a manner, the only question is which one is steering the unconstitutional bus that is about to run over the people. This all begins to feel like a shell game. The NSA will unconstitutionally get this data and will be able to access it on demand. What does it matter where it is stored or who is storing it?

14. Didn’t you hear my lies the first time?

President Obama began to wind up his speech by again repeating a dubious claim:

The bottom line is that people around the world, regardless of their nationality, should know that the United States is not spying on ordinary people who don’t threaten our national security, and that we take their privacy concerns into account in our policies and procedures.

The NSA is collecting metadata on essentially everyone. That is the definition of spying. And since everybody is not threatening American national security, the President’s statement is simply not true.

15. Beware that, when fighting monsters, you yourself do not become a monster.

President Obama concludes with some language which in another context would be inspirational:

As the nation that developed the Internet, the world expects us to ensure that the digital revolution works as a tool for individual empowerment, not government control. Having faced down the dangers of totalitarianism and fascism and communism, the world expects us to stand up for the principle that every person has the right to think and write and form relationships freely—because individual freedom is the wellspring of human progress.

However, President Obama and all future presidents must take heed. The United States did in fact help defeat the evils of fascism and communism, but there is the danger that fighting such monsters could turn the nation into such a monster. Perhaps it has already happened.