President Barack Obama is preparing a package of intelligence reforms that will probably put a public advocate for the first time in the secret court that approves surveillance practices and remove a controversial telephone records database from direct government control, aides said.
With plans to unveil the changes days before the State of the Union address on Jan. 28, key presidential advisers are looking skeptically at a separate proposal to require a federal judge to approve each use of a “national security letter” except in emergencies, however.
Law enforcement officials issue the letters, a little-known form of administrative subpoena that doesn’t require a warrant, to secretly compel disclosure of otherwise private customer records by Internet providers, financial institutions, telephone and credit companies, and other services and organizations.
The FBI has issued more than 123,000 such letters for people in or from the U.S. since 2004, federal records show, including more than 15,000 in 2012, the last year for which data are available.
Obama has not made his own position clear, but the proposal to require judicial review each time the government seeks third-party records has sparked the most push-back from national security officials, including the FBI and some top White House advisers.
“There is concern that this proposal makes it more cumbersome to investigate a terrorist than it does a criminal,” said a senior administration official, who spoke on condition of anonymity to discuss internal deliberations.
Last March, a federal judge ruled the program unconstitutional and ordered the FBI to stop issuing the letters because they contain a gag order that bars recipients from revealing the document’s existence or its demands. Senior U.S. District Judge Susan Illston of the Northern District of California stayed her order pending government appeal.
Adding judicial review to the national security letters was among the 46 recommendations of a presidential task force that examined U.S. surveillance programs after former National Security Agency contractor Edward Snowden’s torrent of leaks on domestic and foreign surveillance operations.
Obama, who vowed to study the panel’s report during his two-week holiday in Hawaii, plans to meet with his national security team and outside experts to finalize his reforms after he returns to Washington on Sunday. Aides said he wants to boost public confidence that he is protecting Americans’ privacy while safeguarding national security.
Obama already has put several of the panel’s proposals in the “likely” category, aides said. They include creating a position for an independent lawyer to argue for privacy rights and civil liberties before the Foreign Intelligence Surveillance Court.
The court, which was created in 1978 and meets in secret, only hears from government lawyers seeking permission for additional surveillance — not from opponents. Records show the court grants nearly all of the government’s requests.
The White House favors changing the procedure to ensure “that the government’s position is challenged by an adversary,” according to an administration official.
The chief justice of the Supreme Court appoints the 11 federal judges on the secret court. It’s unclear whether Obama has embraced the panel’s recommendation to let other Supreme Court judges also play a role, or other proposed changes to the court.
Obama apparently supports shifting the NSA’s bulk collection and storage of domestic telephone calling records to private hands, a change he first signaled at a news conference the day he left for Hawaii. For Americans, the secret archiving of numbers and other data from virtually every U.S. phone call is arguably the most controversial of the surveillance operations revealed by Snowden.
Obama’s top advisers are not considering stopping the program, as some critics insist, because they are convinced the data may be crucial in counterterrorism investigations.
Instead, his advisers are trying to hash out how to ensure that telephone companies or other third-party groups will hold the data but make it available to the NSA or another agency when a judge orders it.
The secret surveillance court has approved the NSA program 36 times in the last seven years, most recently on Friday.
But in a clear sign of impending change, Shawn Turner, spokesman for the director of national intelligence, said in a statement announcing the declassified order that U.S. intelligence agencies were “open to modifications to this program that would provide additional privacy and civil liberty protections while still maintaining its operational benefits.”
Exactly how that will work remains unclear. The presidential task force didn’t suggest who should hold that vast cache of data or where, and telecommunications companies are wary of taking on the responsibility and acting as a surrogate government archive of trillions of calling records.
The data collection has infuriated some members of Congress. On Friday, Sen. Bernie Sanders, I-Vt., sent a pointed letter to NSA Director Keith Alexander demanding to know whether the NSA had monitored phone calls, emails and Internet traffic of members of Congress and other elected officials.
In his letter, Sanders cited the ruling last month by U.S. District Judge Richard J. Leon that the NSA’s bulk collection of telephone metadata was probably unconstitutional and “almost Orwellian” in scope.
Later Friday, the Justice Department filed a one-page notice of appeal asking the U.S. Court of Appeals for the District of Columbia Circuit to overturn Leon’s ruling. The appeal had been expected.
An aide to Sanders said the NSA had not responded to the senator’s letter by late Friday.
Sanders has introduced legislation to limit the records the NSA and FBI may search and require officials to establish a reasonable suspicion, based on specific information, to secure court approval to monitor business records related to a specific terrorism suspect.
Some civil liberties experts who have been consulted by the White House are hoping Obama will make more sweeping changes than those his aides have disclosed so far.
“Public concern is not going to be allayed by occasional transparency or by more secret advocates in a secret court,” said Michelle Richardson, legislative counsel for the American Civil Liberties Union, who has fielded questions from Obama’s aides. “They want the government to stop spying on them. That’s what we’ll be looking for. Are we going to let the government spy on innocent people or not?”
Aides say Obama has emphasized that he doesn’t want to restrain intelligence and law enforcement agencies to the point that they can’t quickly investigate and interrupt terrorist activities.
James Lewis, senior fellow and director of the Strategic Technologies Program at the Center for Strategic and International Studies, cautioned against overlooking legitimate concerns of law enforcement and intelligence agencies. Al-Qaida, he said, is not a spent force.
“We overreacted after 9/11, and it makes sense to trim some of that back,” he said. “But you don’t want to trim it back so far that you increase the chances of another big event. That’s the big concern.”