15 January 2014
Little NSA Restraint
Related Judge Bates letter on FISA:
Obama to Place Some Restraints on Surveillance
By PETER BAKER and CHARLIE SAVAGE
JAN. 14, 2014
WASHINGTON President Obama will issue new guidelines on Friday to
curtail government surveillance, but will not embrace the most far-reaching
proposals of his own advisers and will ask Congress to help decide some of
the toughest issues, according to people briefed on his thinking.
Mr. Obama plans to increase limits on access to bulk telephone data, call
for privacy safeguards for foreigners and propose the creation of a public
advocate to represent privacy concerns at a secret intelligence court. But
he will not endorse leaving bulk data in the custody of telecommunications
firms, nor will he require court permission for all so-called national security
letters seeking business records.
The emerging approach, described by current and former government officials
who insisted on anonymity in advance of Mr. Obamas widely anticipated
speech, suggested a president trying to straddle a difficult line in hopes
of placating foreign leaders and advocates of civil liberties without a backlash
from national security agencies. The result seems to be a speech that leaves
in place many current programs, but embraces the spirit of reform and keeps
the door open to changes later.
The decision to provide additional privacy protections for non-American citizens
or residents, for instance, largely codifies existing practices but will
be followed by a 180-day study by the director of national intelligence about
whether to go further. Likewise, instead of taking the storage of bulk data
out of government hands, as recommended by a review panel he appointed, Mr.
Obama will leave it in place for now and ask lawmakers to weigh in.
The blend of decisions, to be outlined in a speech at the Justice Department
and in a presidential guidelines memorandum, will be Mr. Obamas
highest-profile response to the disclosures about the National Security Agency
made in recent months by Edward J. Snowden, a former N.S.A. contractor who
has fled to Russia.
But as intelligence officials have sorted through Mr. Obamas evolving
position, they have been divided about how significant his adjustments will
Some officials complained that the changes will add layers of cumbersome
procedure that will hinder the hunt for potential terrorists, while others
expressed relief that Mr. Obama is not going further and confidence that
they could still work within the new guidelines without sacrificing much.
Is it cosmetic or is there a real thumb on the scale in a different
direction? asked one former government official who worked on intelligence
issues. Thats the question.
The White House said the presidents review is incomplete and would
not comment further Tuesday.
The developments came as the nations judiciary waded into the highly
charged debate. In a letter made public on Tuesday, a judge designated by
Chief Justice John G. Roberts Jr. to express the views of the judicial branch
warned that some changes under consideration would have a negative
operational impact on a secret foreign intelligence court.
Judge John D. Bates, a former chief judge of the Foreign Intelligence
Surveillance Court, urged Mr. Obama and Congress not to alter the way the
court is appointed or to create an independent public advocate to argue against
the Justice Department in secret proceedings. Any such advocate, he wrote,
should instead be appointed only when the court decided one was needed.
Judge Bates objected to the workload of requiring that courts approve all
national security letters, which are administrative subpoenas allowing the
F.B.I. to obtain records about communications and financial transactions
without court approval.
And he raised concerns about greater public disclosure of court rulings,
arguing that unclassified summaries would be likely to promote confusion
The judges letter, versions of which he sent to the leaders of several
congressional committees, was released as all five members of Mr. Obamas
surveillance review group testified Tuesday before the Senate Judiciary
Committee, seeking support for their recommendations.
Illustrating the cross-pressures on the president, the advisers argued for
the appointment of the independent version of a public advocate, a recommendation
the president is expected to follow, though it is not clear how he will structure
We admire Judge Bates and respect his views, said Cass R. Sunstein,
of Harvard Law School and a former Obama White House official who served
on the review panel. We respectfully disagree with that one, on the
ground that the judge sometimes is not in the ideal position to know whether
a particular view needs representation and that in our tradition, standardly,
the judge doesnt decide whether one or another view gets a lawyer.
The judges objection to the proposal on national security letters
dovetailed with that of the F.B.I. director, James B. Comey, who argued it
would be inefficient to have to go to a judge each time records were sought.
Mr. Obama has decided not to require court approval in every case, but might
still require it in some circumstances, according to one administration official.
Mr. Obama will cut back on the number of people whose phone records can be
examined by the N.S.A. through its bulk data program. Currently the agency
can scrutinize call records of people as far as three steps, or
hops, removed from a suspect. Mr. Obamas review panel proposed
limiting searches to people just two steps removed. He is also likely to
cut down the number of years such data can be retained; currently it is deleted
after five years.
But the president will not, at least for now, back the panels suggestion
that telecommunications firms keep such data and that the government be allowed
to tap into those databases only when necessary.
Intelligence officials complained it would be inefficient to have to go to
multiple companies, so some officials proposed creating an independent consortium
to store the data instead.
Mr. Obama has decided against keeping the data at the private providers because
they do not want that responsibility, officials said, and no independent
consortium currently exists. As a result, he will ask Congress to work with
him to determine the best way to store the data.
He also appears likely to reject the idea of separating code breakers and
code makers. Some critics of the N.S.A. were disturbed that the agencys
encryption team charged with bolstering online security systems against hackers
was working with the team that tries to penetrate computer systems used by
The letter by Judge Bates was accompanied by 15 pages of often specific comments
about possible surveillance reforms.
It is highly unusual for judges to weigh in on public policy debates involving
the other two branches of government, but Judge Bates, the director of the
Administrative Office of the United States Court, said that Chief Justice
Roberts had designated him to act as a liaison and that he had
consulted other judges.
The judge emphasized that his comments were meant to address smooth operation
of the court and were not intended as expressions of support or opposition
to particular introduced bills.
Still, his comments went beyond workload issues. He objected to a proposal
by Mr. Obamas review group to take away Chief Justice Robertss
sole power to appoint the 11 judges of the surveillance court and have them
picked instead by the chief judges of the appeals courts.
Ten of the 11 current judges were appointed by Republican presidents, and
critics have called for more diversity. The chief justice is uniquely
positioned to select qualified judges, Judge Bates argued.