In The Arena Is Obama Failing Constitutional Law? Talking and tinkering may not be enough to make the old law professor’s surveillance program legal.

Jonathan Hafetz is associate professor of law at Seton Hall University School of Law.

In his speech meant to quell concerns over government surveillance, President Obama on Friday offered something of a primer on the history of espionage, from the heroic patrols made by Paul Revere in the Revolution to the sordid eavesdropping the FBI perpetrated against Martin Luther King, Jr.

The history lesson—triggered, of course, by the revelations from former NSA contractor Edward Snowden, which laid bare some of how Obama’s government goes about the business of spying—prefaced a series of reform proposals in which the president put himself forward as the Great Balancer, the one who understands the risks and benefits of spying programs, while also remaining mindful of the competing concerns of liberty and security. “We have to make some important decisions about how to protect ourselves,” Obama said, “while upholding the civil liberties and privacy protections that our ideals—and our Constitution—require.”


As an act of political positioning, the speech might help Obama in the public relations moment, but it’s unclear if the former constitutional law professor has actually promised enough to put his administration and the government on the right side of the Constitution.

It's an approach the president has adopted before to successful effect: invoking a tradition of restraining the government without actually imposing significant restraints.

Granted, some of what he’s pledged to do on the issue of domestic surveillance—the controversial NSA collection of the telephony metadata of American citizens—will help address Fourth Amendment concerns. Obama ordered an immediate end to the program as it currently exists, calling instead for a system that takes the government out of the business of storing the data it collects. And he wants to require that the government gain approval from the Foreign Intelligence Surveillance Act (FISA) court before accessing that data, absent an emergency. And further, he wants to limit the types of call records the government can probe, restricting searches to people two steps (or “hops”) removed from a suspect, as opposed to three, which is the current practice.

But Obama stopped short of adopting a number of the changes advocated by his own advisory panel on the issue, a group of experts and academics he convened to examine possible reforms. Instead, what the president is more likely showing is a different kind of balancing, a move to tinker just enough to quiet critics, but not enough to significantly disrupt the status quo. It’s an approach the president has adopted before to successful effect: invoking a tradition of restraining the government without actually imposing significant restraints.

Among Obama’s most significant reform omissions is one that would have required court approval of National Security Letters, a powerful tool used by the FBI to gather business records from companies, without requiring disclosure of requests themselves. Instead, Obama promised a tweak, limiting the amount of time the requests for information can be kept secret.

The president’s reforms to the FISA court are similarly a mixed bag. The court currently operates in secret and hears only from the government, contrary to basic principles of due process. Obama said he would ask Congress to create a public advocate to argue for privacy concerns before the FISA court, as his advisory panel urged. But Obama did not clarify whether the advocate’s opportunity to argue would be left within the secret court’s discretion. Obama also rejected the panel’s recommendation to revise the method for selecting the court’s 11 members to create more balance. Presently, Chief Justice John Roberts alone decides the membership.

Foreign governments, of course, were watching the president’s remarks as closely as Americans. After all, some of the strongest reactions to Snowden’s revelations of spying concern what the NSA does abroad. Obama promised to increase the protections to foreigners, promising that the United States would be more judicious about how it spies on foreigners. And he said the U.S. would cease its spying on “dozens” of foreign leaders, a practice that provoked a diplomatic firestorm following reports that the U.S. had listened in to the German Chancellor Angela Merkel’s phone calls. But he left in place the government’s authority to collect foreign intelligence through a virtual dragnet that was authorized under amendments to FISA passed in 2008.

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We have seen this kind of response from Obama before, when he’s used the Big Important Speech to tackle major constitutional controversies. In his 2009 remarks at the National Archives, Obama affirmed his intention to reform Bush-era practices that he argued had undermined America’s security and values. Although torture has been eliminated from the country’s terror-fighting tool kit, the prison at Guantanamo Bay remains in use, as do military commissions and the imposition of indefinite detention. The speech nonetheless helped create the impression of broader change.

Last spring, Obama delivered a major address at the National Defense University focused on drone strikes. In it, the president spoke eloquently about the need to bring drones under control and the risks of a perpetual war on terror. Drone strikes, of course, have continued since the speech, albeit with somewhat less frequency and fewer civilian deaths than before, and the war on terror rages on. The speech nonetheless helped quiet concern over the drone program.

Today’s speech may prove less effective. While making the case that government surveillance is measured and lawful, Obama is nonetheless deviating in various respects from the recommendations of his own advisory group. Also, the specifics of key changes—including the collection of telephony metadata, which will continue in a different form—remain uncertain. Other changes depend on action in Congress, deferring rather than resolving controversy.

Government surveillance also generates unique pressures. Espionage of this sort alters the fundamental relationship between the American government and its people. It harms major telecommunications and Internet companies, who claim NSA spying is costing them billions of dollars. Notably, Obama did not address key industry concerns over the NSA’s desire to break encryption software where necessary.

In addition, mass surveillance imperils our relationships with foreign governments—not just because they don’t support it (as with Guantanamo), but also because they (and their citizens) feel victimized.

Perhaps most strikingly, the administration is more powerless to shape the narrative on this issue than on other counterterrorism matters. More Snowden revelations are said to be imminent. The courts and lawmakers are being pressed to respond in their own way. Unlike, with say drones, the contours of the story will evolve beyond the president’s reach.

Spying may be hard, but the president might find curtailing the fallout even harder.