The snooping saga has been a loser for Obama in nearly every respect. Obama's limited NSA reform power

President Barack Obama on Friday will try to put the ongoing surveillance controversy behind him, laying out reforms to U.S. intelligence-gathering activities aimed at reassuring Americans that his administration will right the balance between civil liberties and national security.

But Obama’s powers have significant limits.


Many of the key reforms he’s expected to endorse — including changes to the National Security Agency’s practice of gathering information on telephone calls made to, from or within the U.S. — will require congressional action. Like the public — and seemingly the president himself — lawmakers on both sides of the aisle are divided on what needs fixing and how to do it.

“If he punts the ball 16 blocks, all hell’s liable to break loose on the Hill,” said former NSA Director Michael Hayden. “There will be people who will be voting against it because Obama’s reform plan doesn’t go far enough and people voting against it because it doesn’t defend us enough and other people voting against it because it outsources espionage.”

It’s another challenge for a White House eager to clear the decks for issues that aides want to highlight in Obama’s State of the Union address later this month, such as income inequality and immigration.

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The snooping saga has been a loser for Obama in nearly every respect. Edward Snowden, the former NSA contractor who leaked a trove of top-secret documents detailing the surveillance, is still camping out in Russia. The activities angered the international community. And disclosures that widespread and intrusive surveillance continued into Obama’s presidency undercut his reputation as a reformer who would end over-the-top anti-terrorism practices and civil liberties violations many liberals — including Obama and Vice President Joe Biden — denounced under President George W. Bush.

As commander in chief, Obama could abandon certain surveillance practices altogether. For instance, he could simply shut down the so-called 215 program to collect telephone data in the U.S. so it can be used to trace potential contacts of terrorism suspects.

But the president has said he’s considering replacing that program with a private-sector-based arrangement that provides the government with similar information on a case-by-case basis. That would require Congress to step in, officials said.

There’s “going to probably have to be some statutory — and very likely some court — involvement in order to set up the legal framework to achieve that,” outgoing NSA Deputy Director Chris Inglis told NPR News last week. “But that’s not abandoning the program. That’s implementing it a different way.”

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Obama does have unilateral authority to impose dramatic reforms overseas, since surveillance of foreigners abroad is essentially unconstrained by U.S. law. And the White House has signaled that much of Friday’s address will be aimed at the international audience. Obama has personally fielded the complaints of foreign leaders like German Chancellor Angela Merkel, who was livid over reports that the NSA had effectively tapped her personal mobile phone.

Administration officials say Obama is likely to embrace many of the recommendations put forward last month by an outside panel he set up to dig into the issue: the President’s Review Group on Intelligence and Communications Technologies.

The committee urged ending the NSA’s program that has collected information on billions, perhaps even trillions, of U.S. telephone calls. A federal judge ruled last month that the metadata program — aimed at running down leads about potential terrorist plots — was most likely unconstitutional, but other judges have concluded that the effort is lawful. The panel urged that much of the same data be stored at the phone companies and available to the government on a case-by-case basis with individual court warrants, something likely to require Congress to impose new requirements on the firms.

The review group also recommended assigning a public advocate to the secretive Foreign Intelligence Surveillance Court, so judges could hear from an attorney advocating for privacy rights and other constitutional protections for Americans whose data is swept up in surveillance programs. And the panel urged changing the way judges on the court are appointed, so the chief justice no longer has the sole power to make such picks. Those changes, too, would need legislation.

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All five review group members are set to publicly promote their plans at a Senate Judiciary Committee hearing Tuesday.

“There are a few big things you really need Congress to do. If you want to change the appointment mechanism for the [Foreign Intelligence Surveillance Court] or do any kind of structural reform of the FISC, you need it. If you want to continue the metadata program in some form, but reform it in any way, you need an act of Congress,” said Ben Wittes of the Brookings Institution.

Some technical aspects of the call-tracking program could be achieved through updating mundane regulations the Federal Communications Commission imposes on telephone companies’ retention of billing records. But Obama lacks the power to simply order that body to make such changes.

The review group’s report hinted at a more cooperative solution, suggesting “it would be in the interests of the [telecom] providers and the government to agree on a voluntary system” to replace the current bulk collection of phone data by the NSA. However, those companies and technology firms are now extremely skittish about appearing in any way to be collaborating with the government on programs at least some Americans and many foreigners regard as a huge violation of privacy.

Another challenge for Obama will be explaining how such a private-sector-based system would work and why he thinks it’s feasible. Experts who’ve consulted with the NSA on the subject believe it could take one to two years to set up the interconnections that would allow queries of call data held by various companies to ping pong back and forth in a rapid way.

As a result, many analysts expect Obama to announce plans to move toward keeping the data in the private sector but to be vague about the mechanics — just as the review group was.

“On 215, he can adopt a direction he wants to go and then it will take time to say how,” former Justice Department attorney Carrie Cordero said. “It would be reasonable for him to hold off on providing details on precisely how the changes will be implemented.”

Overseas, the review group proposed treating information NSA picks up on foreign nationals with the same safeguards required by the Privacy Act, a federal law which applies only to U.S. citizens and permanent residents. The administration appears to be leaning toward providing some kind of enhanced privacy guarantees for foreigners, though it’s unclear how far those protections would go or how foreigners could pursue any alleged violation.

“Our capabilities must be applied in a way that essentially meets the requirements imposed on me such that we would protect the privacy of foreign persons as much as we would protect the privacy of U.S. persons,” Inglis told NPR.

Obama personally promised foreign leaders — including Merkel and Brazilian President Dilma Rousseff — that he would conduct a thorough review of U.S. surveillance practices and get back to them with the results. Merkel also won from Obama an extraordinary public pledge that her conversations would be immune from surveillance in the future, White House officials said.

Even before completing the review, Obama decided to stop snooping on the communications of leaders of many U.S. allies, according to a senior administration official who asked not to be named. Rousseff canceled a planned state visit to the U.S. after it was disclosed that American officials intercepted communications made by her and her aides.

To be sure, unlike Europe and Latin America, which have seen an outpouring of anger and criticism of the U.S. over reports of widespread surveillance of Internet and telephone traffic, there are few signs of a groundswell of public anger in the U.S. against Obama over the surveillance.

Polls show Americans sharply split on the wisdom of programs like the NSA’s call-tracking database. But the political headaches are more acute for the White House because liberal members of Obama’s political base are among those most angered by the revelations, which feed a sense among some on the left that Obama has delivered little of the change he talked about during the 2008 campaign.

“No more illegal wiretapping of American citizens. No more national security letters to spy on citizens who are not suspected of a crime. No more tracking citizens who do nothing more than protest a misguided war. No more ignoring the law when it is inconvenient,” Obama said in a 2007 speech. “This administration acts like violating civil liberties is the way to enhance our security.”

The way the public learned about the snooping efforts — through a massive security breach involving a low-level NSA computer technician — also undermined Obama’s claims to be a champion of transparency.

The White House this month has seemed to be in a particular hurry to get out from under the NSA story. Last week, officials held a hectic series of meetings with leaders of the intelligence community, lawmakers active on the issue, privacy advocates and tech companies.

And while a congressionally authorized oversight panel — the Privacy and Civil Liberties Oversight Board — is set to deliver a report on the telephone metadata program and the FISA Court in the coming weeks, Obama will make his decisions on surveillance reform before the board’s report is done. Obama met with panel members last week, but a panel official said she couldn’t explain the disconnect in the two timelines.

It’s unclear whether Obama’s speech and his endorsement of specific reform proposals can break the legislative logjam that has frozen action on the issue in Congress for months.

There is a flurry of bills proposing surveillance changes that range from added transparency to modest reforms on the retention and use of bulk data to outright repeal of the authority to collect it.

Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) favors tweaks to the current system. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) would do away with bulk collection altogether, as would other program critics like Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.). Whether they would support legislation to facilitate collecting the data as the review group has suggested is uncertain.

There are similar divisions in the House. A senior House Judiciary Committee member, Rep. Jim Sensenbrenner (R-Wis.) has signed on to Leahy’s bill to kill the program. However, House Intelligence Committee Chairman Mike Rogers (R-Mich.) is arguably the program’s staunchest and most unapologetic defender on Capitol Hill.

In July, the House narrowly defeated, 205-217, an amendment that would have blocked the NSA call tracking program. However, that was amid the shock of the initial revelations.

In other policy areas, the White House has shied away from endorsing specific legislation out of fear of a backlash among House Republicans hostile to the president. Some GOP members may have voted against the program last July because they identified it with Obama. If a reform measure is seen as having the president’s support, some in the GOP might oppose that as well.

Even proposals that don’t seem terribly controversial, like the public advocate for the intelligence court, can stir up trouble on Capitol Hill. Last week, Sen. Richard Blumenthal (D-Conn.) pressed Justice Department official John Carlin to endorse the notion that the advocate should be able to step into any case he or she thinks would benefit from a second viewpoint.

“It shouldn’t be just the court that decides the advocate [gets] involved, but the advocate as well,” the senator said.

Carlin, nominated to head DOJ’s national security division, was noncommittal. “The president and the administration are still studying a variety of ideas and inputs from different groups on that issue,” he said.

In some ways, it matters little to the White House what Congress does on the surveillance front. A legislative stalemate would essentially leave the current call-tracking program in place until June 2015, when PATRIOT Act provision used to authorize it is set to expire. And any reform bill Congress passes would provide political cover for Obama if national security hawks later fault reforms for contributing to the government missing signs of a looming terrorist attack.

Only a devastating attack that slipped through would seem to carry significant peril for Obama — and he would most likely face substantial blame then even if the current surveillance regime remained in place.

Reform advocates say one argument they’re making for Congress to act — regardless of what Obama proposes — is that legislation is the only way to make changes guaranteed to last after Obama leaves office.

“I’ve insisted on legislation because this administration or succeeding administrations can undo any changes,” Sensenbrenner said after meeting with Obama last week, “and the chances are good that no one will know about it until the next scandal happens.”

Alex Byers contributed to this report.