White House Leaks Proposed NSA Reforms; Can't President Obama Act on His Own?

Obama administration, House Intelligence Committee float proposals

What's happening today, March 25:

Unnamed senior administration officials reportedly told The New York Times last night that the White House will propose "a far-reaching overhaul" of National Security Agency (NSA) practices, including imposing limits on bulk phone records collection. The unnamed sources explained the NSA would no longer systematically collect data about Americans' phone calls. The agency would still have access to the information, which would be retained by phone companies and available to the NSA through a court order. Phone companies would hold records only for the normal amount of time, the unnamed sources insisted, though as Politico reports, the legislation could actually strengthen the requirements for how long phone companies retain records. The court orders, too, would apparently require phone companies to not only provide records that exist about a certain phone number or set of phone numbers, but also to provide records on the target phone number on an ongoing basis. As the NSA's activities remain technically classified, it is difficult to imagine how these reforms, even if passed, could be verified.

News of the proposed reforms leaked out just a few days before the March 28 deadline President Obama set for recommendations in a January 17 speech on NSA reform. The president is expected to seek another 90 day extension of the current NSA program while the White House's proposed reforms make it through the legislative process. Obama's January speech came more than six months after the first disclosures of the NSA's surveillance activities by whistleblower Edward Snowden. The president has insisted those disclosures were crimes that ought to be prosecuted, and that his decision-making process on the NSA was not affected by them. Throughout, Obama and other key government officials insisted the public's issue with the NSA's activities weren't the activities themselves but the required secrecy surrounding them.

It's not just the White House working on NSA reforms and leaking them. The Republican-controlled House Intelligence Committee also leaked proposed NSA reforms last night. Those were introduced this morning. The House's proposed reforms do not even attempt to appear to seem like they are reining in the NSA's power. According to The Guardian, the "End Bulk Collection Act of 2014," sponsored by Rep. Mike Rogers (R-Mich.), the committee chair, would permit the collection of records if there is "reasonable articulable suspicion," a lower bar than probable cause and one that is not explicitly required to be linked to a terrorism investigation. Anyone so much as "in contact with, or known to, a suspected agent of a foreign power" could be targeted by the NSA. Reps. Rogers and Dutch Ruppersberger (D-Md.), the ranking members of the House Intelligence Committee, are expected to have a press conference about their proposals later this morning.

Analysis:

The Guardian warns readers about what to expect from this, or any, Rogers proposal on intelligence reform:

As a general rule, whenever Mike Rogers (not to be confused with incoming NSA director Michael Rogers) claims a bill does something particular – like, say, protect your privacy – it's actually a fairly safe assumption that the opposite will end up true. His new bill seems to have the goal of trading government bulk collection for even more NSA power to search Americans' data while it sits in the hands of the phone companies.

Given the disturbing disconnect between the title of "End Bulk Collections" and the reality that the bill will make it easier for the NSA to target individuals for bulk collections, this observation checks out. Will the White House's proposal be any better? Almost certainly. After all, the existence of a Rogers proposal signals that NSA hawks in Congress did not have confidence that the proposals the White House has been floating this year did enough to reinforce the NSA's powers and abilities. However, the White House proposal does not seek to "end bulk collections" either, as Politico notes from another unnamed source:

 "As the President made clear in his speech on these issues in January, he directed his administration to explore all options available for ending the government's role in holding this metadata while still maintaining as many capabilities of the program as possible," said the official, who also asked not to be named.

"The President considered those options and in the coming days, after concluding ongoing consultations with Congress, including the Intelligence and Judiciary Committees, will put forward a sound approach to ensuring the government no longer collects or holds this data, but still ensures that the government has access to the information it needs to meet the national security needs his team has identified," the Obama aide added. The government, then, won't be "collecting" data, but it will have access to the same data it has been collecting.

Senator Rand Paul (R-Ky.) credited his lawsuit over the NSA's surveillance program at least in part for the White House's forthcoming NSA reform proposals, but also warned that the proposals as they've been described don't go far enough, and that the White House could in fact curb the NSA on its own, without legislation passing Congress. Via Politico:

 "I don't like the idea of collecting the data. If it's left in the phone company's hands, and you have to have a warrant with an individual's name on it, then that I think meets the law, the Constitution," Paul said. "But we'll have to see what happens. The president sometimes says one thing and does another. So the devil is in the details here."

Paul also said he doubts the president's claim that he needs Congress's sign-off to end the program.

"He unilaterally instituted this program without congressional authority," Paul said. "I think he could unilaterally stop the program if he were serious about it." It doesn't look like NSA reforms will be part of President Obama's "year of action," even though he could apparently, at least according to Paul, use his pen and phone to end some of the NSA's controversial programs unilaterally. In this case, it seems he can wait for Congress, even though, unlike occasions when he says he can't wait for Congress, he appears to have the constitutional authority not to wait for Congress.