Obama’s New NSA Proposal and Democratic Partisan Hackery

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The Intercept

Obama’s New NSA Proposal and Democratic Partisan Hackery

I vividly recall the first time I realized just how mindlessly and uncritically supportive of President Obama many Democrats were willing to be. In April, 2009, two federal courts, in a lawsuit brought by the ACLU, ruled that the Freedom of Information Act (FOIA) required the Pentagon to disclose dozens of graphic photos it possessed showing abuse of detainees in Iraq and Afghanistan. The Obama administration announced that, rather than contest or appeal those rulings, they would comply with the court orders and release all the photos. The ACLU praised that decision: “the fact that the Obama administration opted not to seek further review is a sign that it is committed to more transparency.”

This decision instantly turned into a major political controversy. Bush-era neocons, led by Bill Kristol and Liz Cheney, excoriated Obama, arguing that release of the photos would endanger American troops and depict the US in a negative light; Cheney expressly accused Obama of “siding with the terrorists” by acquiescing to the ruling. By contrast, Democrats defended Obama on the ground that the disclosures were necessary for transparency and the rule of law, and they attacked the neocons for wanting to corruptly hide evidence of America’s war crimes. I don’t think there was a single Democratic official, pundit, writer, or blogger who criticized Obama for that decision.

But then – just two weeks later – Obama completely reversed himself, announcing that he would do everything possible to block the court order and prevent it from taking effect. ABC News described Obama’s decision as “a complete 180.” More amazingly still, Obama adopted the exact arguments that Bill Kristol and Liz Cheney were making over the prior two weeks to attack him specifically and transparency generally: to justify his desire to suppress this evidence, Obama said that “the most direct consequence of releasing the [photos], I believe, would be to further inflame anti-American opinion and to put our troops in danger.”

Now, obviously, the people who had been defending Obama’s original pro-transparency position (which included the ACLU, human rights groups, and civil liberties writers including me) changed course and criticized him. That’s what rational people, by definition, do: if a political official takes a position you agree with, then you support him, but when he does a 180-degree reversal and takes the exact position that you’ve been disagreeing with, then you oppose him. That’s just basic. Thus, those of us who originally defended Obama’s decision to release the photos turned into critics once he took the opposite position – the one we disagreed with all along – and announced that he would try to suppress the photos.

But that’s not what large numbers of Democrats did. Many of them first sided with Obama when his administration originally announced he’d release the photos. But then, with equal vigor, they also sided with Obama when – a mere two weeks later – he took the exact opposition position, the very anti-transparency view these Democrats had been attacking all along when voiced by Bill Kristol and Liz Cheney.

At least for me, back then, that was astonishing to watch. It’s one thing to strongly suspect that people are simply adopting whatever views their party’s leader takes. But this was like the perfect laboratory experiment to prove that: Obama literally took exact opposition positions in a heated debate within a three week period and many Democrats defended him when he was on one side of the debate and then again when he switched to the other side.

When Democrats were defending Obama’s decision to suppress the photos, I kept asking whether there was a single one of them – just one – who had criticized Obama two weeks earlier when his administration announced they’d released the photos. After all, if they really believed (as they were now claiming) that suppressing the photos was the right thing to do because their release would endanger the troops, shouldn’t they have been objecting when Obama two weeks earlier said he’d release them?

I never found one Democrat defending Obama’s photo suppression who had criticized him earlier when he said he’d release them. That’s when I fully internalized that many Democrats literally had no actual political beliefs other than we support Obama in everything that he does, even when he takes precisely opposite positions in a three week period (most amazingly of all, Obama ultimately succeeded in suppressing the photos – which still have never been seen – not by successfully appealing the court order, but by supporting and then signing into law an amendment to the 40-year old FOIA - sponsored by Joe Lieberman and Lindsey Graham - that simply exempted the photos from the law).

We’re now about to have a similar lab experiment, this time in the context of the NSA. The New York Times‘ Charlie Savage reported last night that Obama “is preparing to unveil a legislative proposal for a far-reaching overhaul of the National Security Agency’s once-secret bulk phone records program in a way that — if approved by Congress — would end the aspect that has most alarmed privacy advocates since its existence was leaked last year.” In sum, “the NSA would end its systematic collection of data about Americans’ calling habits.”

This proposal differs in significant respects from the incredibly vague and cosmetic “reforms” Obama suggested in his highly touted NSA speech in January. Although bereft of details, it was widely assumed that Obama’s January proposal would not end the bulk data collection program at all, but rather simply shift it to the telecoms, by simultaneously requiring that the telecoms keep all calling records for 5 years (the amount of time the NSA now keeps those records) and make them available to the government on demand. But under Obama’s latest proposal, the telecoms “would not be required to retain the data for any longer than they normally would” (the law currently requires 18 month retention) and “the NSA could obtain specific records only with permission from a judge, using a new kind of court order.”

As always with Obama, it remains to be seen whether his words will be followed by any real corresponding actions. That he claims to support a bill does not mean he will actually try to have Congress enact it. The details, still unknown, matter a great deal. And even if this did end the domestic bulk collection spying program, it would leave undisturbed the vast bulk of the NSA’s collect-it-all system of suspicionless spying.

Nonetheless, this clearly constitutes an attempt by Obama to depict himself as trying to end the NSA’s domestic bulk surveillance program, which was the first program we reported with Snowden documents. I agree with the ACLU’s Jameel Jaffer, who told the New York Times: “We have many questions about the details, but we agree with the administration that the NSA’s bulk collection of call records should end.”

This new proposal would not, as some have tried to suggest, simply shift the program to telecoms. Telecoms – obviously – already have their customers’ phone records, and the key to any proposal is that it not expand the length of time they are required to retain those records (though telecoms only have their specific customers’ records, which means that – unlike the current NSA program – no one party would hold a comprehensive data base of all calls). As reported by Savage, Obama’s proposal does nothing to change how long telecoms keep these records (“the administration considered and rejected imposing a mandate on phone companies that they hold on to their customers’ calling records for a period longer than the 18 months that federal regulations already generally require”). That’s why, if enacted as he’s proposing it, Obama’s plan could actually end the NSA’s bulk collection program.

That puts hard-core Obama loyalists and pro-NSA Democrats – the ones that populate MSNBC – in an extremely difficult position. They have spent the last 10 months defending the NSA (i.e., defending Obama) by insisting that the NSA metadata program is both reasonable and necessary to Keep Us Safe™. But now Obama claims he wants to end that very same program. So what will they do?

If they had even an iota of integrity or intellectual honesty, they would instantly and aggressively condemn Obama. After all, he’s now claiming to want to end a program that they have been arguing for months is vital in Keeping Us Safe™. Wouldn’t every rational person, by definition, criticize a political leader who wants to abolish a program that they believe is necessary to stop terrorism and preserve national security?

But that’s not what will happen. After spending months praising the NSA for responsibly overseeing this critical program, they will now hail Obama for trying to end it. When he secretly bulk collects the calling data on all Americans, it shows he’s a pragmatic and strong leader who Keeps Us Safe™; when he tries to end the very same program, it shows he’s flexible and devoted to our civil liberties — just as he was right to release the torture photos and also right to suppress them. The Leader is right when he does X, and he’s equally right when he does Not X. That’s the defining attribute of the mindset of a partisan hack, an authoritarian, and the standard MSNBC host.

As for the substantive reform, the fact that the President is now compelled to pose as an advocate for abolishing this program – the one he and his supporters have spent 10 months hailing – is a potent vindication of Edward Snowden’s acts and the reporting he enabled. First, a federal court found the program unconstitutional. Then, one of the President’s own panels rejected the NSA’s claim that it was necessary in stopping terrorism, while another explicitly found the program illegal. And now the President himself depicts himself as trying to end it. Whatever test exists for determining whether “unauthorized” disclosures of classified information are justified, Snowden’s revelations pass the test with ease. That President Obama now proclaims the need to end a domestic spying program that would still be a secret in the absence of Snowden’s whistleblowing proves that quite compellingly.

Glenn Greenwald

Glenn Greenwald is a Pulitzer Prize-winning journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a staff writer and editor at First Look media. His fifth and latest book is, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world. Prior to his collaboration with Pierre Omidyar, Glenn’s column was featured at Guardian US and Salon.  His previous books include: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the PowerfulGreat American Hypocrites: Toppling the Big Myths of Republican PoliticsA Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, a George Polk Award, and was on The Guardian team that won the Pulitzer Prize for public interest journalism in 2014.

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