Larry Downing/Reuters

President Obama’s habit of going on television comedy shows is sort of charming, and he engaged in some semi-funny banter last night with Jay Leno about aging and silver in his hair and his marriage.

But when the conversation turned to more serious matters, like Edward Snowden, the National Security Agency and domestic surveillance, Mr. Obama’s comments were disingenuous at best and perhaps even deliberately misleading.

Mr. Obama assured Mr. Leno and his audience that “We don’t have a domestic spying program.” If by that, Mr. Obama meant there are no black helicopters hovering over your house or agents skulking in your bushes, then probably we don’t have a domestic spying program.



He also seemed to excuse the N.S.A.’s data-mining by suggesting it was necessary for criminal investigations. “I’ve been talking to Congress and civil libertarians and others about are there additional ways that we can make sure that people know nobody is listening to your phone call, but we do want to make sure that after a Boston bombing, for example, we’ve got the phone numbers of those two brothers — we want to be able to make sure did they call anybody else? Are there networks in New York, are there networks else that we have to roll up?”

That kind of after-the-fact operation is irrelevant to the debate that has erupted since Mr. Snowden gave secret documents about N.S.A. domestic surveillance to the Guardian newspaper. Those documents showed that, starting under President Bush and continuing under President Obama, the N.S.A. has been using a secret reinterpretation of the Patriot Act to sweep up telephone data — not in furtherance of specific investigations, but as a matter of routine.

The telephone data dragnet raises serious constitutional questions. Mr. Obama assured Mr. Leno that “we put in some additional safeguards to make sure there’s federal court oversight as well as congressional oversight, that there is no spying on Americans.” But count me unimpressed. It’s not “oversight” when government lawyers present secret arguments to a court that meets in secret — the FISA court — without anyone offering a counter-argument. A few members of Congress are lucky enough to have access to briefs, which of course they’re not allowed to make public, but the majority of our lawmakers are kept in the dark.

I agree with Mr. Obama that Mr. Snowden’s leaks were illegal, but they served a public good. The president said – again, disingenuously — that Mr. Snowden could have followed whistleblower procedures if he thought the law was being broken or government powers were being abused. Since Mr. Obama’s lawyers secretly declared that neither is the case, and got secret approval from a secret court for their position, any complaint Mr. Snowden had made would obviously have been dismissed out of hand.

Mr. Obama has not just adopted the excessive secrecy of the Bush administration — and its over-reaching on domestic surveillance in the name of counter-terrorism — he has actually gone farther. It makes for poor Tonight Show comedy.