History > 2014 > USA > President / White House (I)

President Obama

speaking about surveillance programs

on Friday at the Justice Department.

Stephen Crowley/The New York Times

With Plan to Overhaul Spying, the Divisiveness Is in the Details

By PETER BAKER and JEREMY W. PETERS

NYT

JAN. 18, 2014

http://www.nytimes.com/2014/01/19/us/politics/with-plan-to-overhaul-spying-the-divisiveness-is-in-the-details.html

The 2014 State of the Union Address (Enhanced Version)

President Obama

delivers the 2014 State of the Union address to Congress and the nation.

January 28, 2014.

YouTube > The White House        January 28, 2014.
http://www.youtube.com/watch?v=arhBRouSmWs

Crime and Punishment and Obama

FEB. 23, 2014
The New York Times

I DOUBT any president has been as well equipped as Barack Obama to appreciate the vicious cycle of American crime and punishment. As a community organizer in Chicago in the 1980s, he would have witnessed the way a system intended to protect the public siphoned off young black men, gave them an advanced education in brutality, and then returned them to the streets unqualified for — and too often, given the barriers to employment faced by those who have done time, disqualified from — anything but a life of more crime. He would have understood that the suffering of victims and the debasing of offenders were often two sides of the same coin.

It’s hard to tell how deeply he actually absorbed this knowledge. In the Chicago chapters of his memoir, “Dreams From My Father,” Obama notes that in the low-income housing projects “prison records had been passed down from father to son for more than a generation,” but he has surprisingly little to say about the shadow cast by prisons on the families left behind, about the way incarceration became the default therapy for drug addicts and the mentally ill, about the abject failure of rehabilitation.

Still, when the former community organizer took office, advocates of reform had high expectations.

In March I will give up the glorious platform of The Times to help launch something new: a nonprofit journalistic venture called The Marshall Project (after Thurgood Marshall, the great courtroom champion of civil rights) and devoted to the vast and urgent subject of our broken criminal justice system. It seems fitting that my parting column should address the question of how this president has lived up to those high expectations so far.

I’ll begin by making his excuses. The president’s powers in this area are limited. The action (and there is a lot of it right now) is mostly at the state level. His first term was entangled in economic crisis and health care. This president has faced tireless and often petty resistance from the Republican House on almost every initiative. Historically Democrats have risked being Willie-Horton’ed if they don’t maintain a tougher-than-tough-on-crime posture. And African-American constituents — who are also disproportionately the victims of crime — are not necessarily bleeding-heart voters. In short, it was probably naïve to assume that Obama was going to be the Criminal Justice Reform President.

And yet Obama took office at a time of tidal shifts. The economics of imprisonment, the ebbing of crime rates, the horror stories of overcrowded penitentiaries and the persistent activism of reform advocates had begun to generate a public consensus that merely caging people is not a crime-fighting strategy. Fiscal conservatives alarmed at the high cost of incarceration, evangelicals shocked by the waste of lives, and libertarians who spotted another realm of government power abused have clambered onto what was once a liberal bandwagon. (How much those conservatives will be willing to invest in alternative ways of protecting the public — drug treatment, more intensive parole and probation programs, job training and so on — is another question.)

In his first term Obama did not make this a signature issue; he rarely mentioned the subject. But his proxy, Attorney General Eric Holder Jr., was outspoken from the start. Six months into the first term, he was already at the Vera Institute of Justice in New York talking about the social costs of mass incarceration and pressing for policies that would divert low-level drug offenders to treatment and ease the re-entry of former prisoners into a productive life. In the last five years, Holder has become increasingly bold, and encountered little backlash. This month he exhorted states to repeal policies that deny felons the right to vote, policies that disenfranchise 5.8 million Americans, including nearly one in 13 African-American adults. He framed it not just as an act of compassion but as a way of re-engaging prodigal souls.

“By perpetuating the stigma and isolation imposed on formerly incarcerated individuals, these laws increase the likelihood they will commit future crimes,” Holder said.

“All that sounds very good,” said Michelle Alexander, the legal scholar who wrote “The New Jim Crow,” a scorching 2010 indictment of the racialized war on drugs. ”And it is good, because for decades the rhetoric was running in the other direction. But if the rhetoric is not matched with action ... then it is fair to wonder whether the shift in rhetoric reflects significant shifts in public opinion in recent years, rather than a real commitment to these issues and a willingness to take political risks.”

In practice, the administration’s record has been more incremental than its rhetoric.

By the crudest metric, the population of our prisons, the Obama administration has been unimpressive. The famously shocking numbers of Americans behind bars (the U.S., with 5 percent of the world’s people, incarcerates nearly a quarter of all prisoners on earth) have declined three years in a row. However the overall downsizing is largely thanks to California and a handful of other states. In overstuffed federal prisons, the population continues to grow, fed in no small part by Obama’s crackdown on immigration violators.

The administration has some achievements to tout. Obama signed the 2010 Fair Sentencing Act, and has put some muscle behind the Smarter Sentencing Act, two measures aimed at making drug-sentencing laws less absurd. Holder has issued guidance to prosecutors to avoid routinely seeking maximum sentences for low-level offenders — though it’s not clear yet whether prosecutors are going along. The administration created an Interagency Reentry Council that uses federal guidance to whittle away at the barriers to employment, housing and education so that released prisoners have some hope of becoming productive citizens.

At the same time, long after the War on Drugs has been recognized as a failure, there has been little serious effort to cut the number of federal drug prosecutions, or to shift money from incarceration to drug treatment. Alexander cites as a significant disappointment the continued federal reluctance to decriminalize marijuana, despite Obama’s acknowledgment to David Remnick of The New Yorker that pot is less harmful than alcohol and that the laws are mostly enforced against poor minorities. Another missed opportunity: he could have pushed more aggressively to fill district and circuit court vacancies with judges who would buck the status quo.

Obama has also been the stingiest of recent presidents in using his powers of pardon and commutation to undo the damage of the crack panic and of sentencing that keeps prisoners in lockup long past the age when they represent a danger. Marc Levin, director of the Center for Effective Justice at the Texas Public Policy Foundation, a conservative think tank with a justice reform agenda, points out that in his first term Obama pardoned one in 50 applicants while Ronald Reagan pardoned one in three. Late last year Obama commuted the sentences of eight drug offenders, out of more than 8,000 federal convicts serving time under outdated crack laws.

Obama is, we know, a cautious man, leery of getting ahead of public opinion and therefore sometimes far behind it. And some reform advocates argue that it made sense for Obama to keep a low profile until a broad bipartisan consensus had gathered. That time has come. Now that Obama-scorners like Senators Rand Paul and Mike Lee and even Ted Cruz are slicing off pieces of justice reform for their issue portfolios, now that red states like Texas, Georgia, South Carolina, Missouri and Kentucky have embraced alternatives to prison, criminal justice is one of those rare areas where there is common ground to be explored and tested.

The Obama presidency has almost three years to go, and there is reason to hope that he will feel less constrained, that the eight commutations were not just a pittance but, as he put it, “a first step,” that Holder’s mounting enthusiasm for saner sentencing is not just talk, but prelude, that the president will use his great pulpit to prick our conscience.

“This is something that matters to the president,” Holder assured me last week. “This is, I think, going to be seen as a defining legacy for this administration.”

I’ll be watching, and hoping that Holder’s prediction is more than wishful thinking.

A version of this op-ed appears in print on February 24, 2014,

on page A19 of the New York edition with the headline:

Crime and Punishment and Obama.

    Crime and Punishment and Obama, NYT, 23.2.2014,
    http://www.nytimes.com/2014/02/24/opinion/
    keller-crime-and-punishment-and-obama.html

Mercy in the Justice System

 

FEB. 9, 2014
The New York Times
By THE EDITORIAL BOARD

The constitutional provision that gives the president virtually unlimited authority to grant clemency was not an afterthought. The founders understood very well that there could be miscarriages of justice even under the rule of law. By allowing the president to commute unjust sentences or pardon deserving petitioners who had served their time, they sought to ensure that the workings of the courts could be tempered with mercy.

Presidents Jefferson, Madison, Monroe, Lincoln, and Truman viewed the clemency process as a central mission of the office. But the concept of mercy went out of fashion by the 1980s, when the country embarked on a mandatory sentencing craze that barred judges from exercising leniency when it was clearly warranted and placed the justice system almost entirely in the hands of prosecutors. As a consequence, even first-time offenders were largely viewed as beyond redemption.

These laws drove up the prison population 10-fold and filled the jails with young, low-level drug offenders who were confined far longer than their offenses warranted. They also created a large and growing class of felons, who are trapped permanently at the margins of society by postprison sanctions — laws that bar them from jobs and housing, strip them of the right to vote and make it difficult for them to obtain essential documents like driver’s licenses.

The perpetual punishment model of justice has had far-reaching consequences. Politicians stayed as far away from clemency as they could, fearing that voters would view them as soft on crime. Meanwhile, at the Justice Department, the clemency process — which had been a cabinet-level responsibility — fell under the authority of prosecutors who seemed to view even reasonable lenience as a threat to the prosecutorial order. The time required to handle clemency applications went from months to years; the backlog grew; the stream of mercy that had once flowed began to dry up.

The clemency system, in other words, is in a state of collapse. The Justice Department admitted as much last month, when the deputy attorney general, James Cole, asked the criminal defense bar to help the department find suitable candidates for clemency among the many thousands of people who were casualties of the mandatory-sentencing era.

Mr. Cole specifically mentioned nonviolent, low-level drug offenders who are serving “life or near-life” sentences that are considered excessive under current law. He was clearly referring to people prosecuted under the abjectly racist 1986 federal law that punished people caught with crack cocaine far more severely than those caught with the powdered form of the drug.

In 2010, Congress reduced, but did not eliminate, the sentencing disparity, and thousands of people sentenced under the original law are still living behind bars. President Obama commuted the sentences of eight of them in December; even so, his has been one of the least merciful administrations in modern history.

The Justice Department’s sudden interest in the clemency problem is good news, but asking defense lawyers for help is a haphazard approach. What’s needed is wholesale reform of the department’s pardon office, which has proved itself ineffective and incompetent, partly because the current process relies on the department to evaluate its own work.

One sound idea is to create a clemency review panel outside the Justice Department, perhaps as a part of the executive office. Mr. Obama could form an advisory board, or reconfigure the pardon office to include defense lawyers, sociologists and other experts who would bring a broader perspective to the issue. The goal would be to give the president unbiased information that would enable him to exercise fully this important aspect of executive power.

A version of this editorial appears in print

on February 10, 2014, on page A20 of the New York edition

with the headline: Mercy in the Justice System.

    Mercy in the Justice System, NYT, 9.2.2014,
    http://www.nytimes.com/2014/02/10/opinion/mercy-in-the-justice-system.html

In State of the Union Address,

Obama Vows to Act Alone

on the Economy

JAN. 28, 2014
The New York Times
By PETER BAKER

WASHINGTON — After five years of fractious political combat, President Obama declared independence from Congress on Tuesday as he vowed to tackle economic disparity with a series of limited initiatives on jobs, wages and retirement that he will enact without legislative approval.

Promising “a year of action” as he tries to rejuvenate a presidency mired in low approval ratings and stymied by partisan stalemates, Mr. Obama used his annual State of the Union address to chart a new path forward relying on his own executive authority. But the defiant “with or without Congress” approach was more assertive than any of the individual policies he advanced.

“I’m eager to work with all of you,” a confident Mr. Obama told lawmakers of both parties in the 65-minute nationally televised speech in the House chamber. “But America does not stand still — and neither will I. So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do.”

In his annual address before Congress, President Obama promised to confront growing economic inequality and outlined a list of actions he would take without Congressional approval.

The president’s appearance at the Capitol, with all the traditional pomp and anticipation punctuated by partisan standing ovations, came at a critical juncture as Mr. Obama seeks to define his remaining time in office. He touched on foreign policy, asserting that “American diplomacy backed by the threat of force” had forced Syria to give up chemical weapons and that “American diplomacy backed by pressure” had brought Iran to the negotiating table. And he repeated his plan to pull troops out of Afghanistan this year and threatened again to veto sanctions on Iran that disrupt his diplomatic efforts.

The most emotional point of the evening came with the introduction of Sgt. First Class Cory Remsburg, an Army Ranger the president had met both before and after he was ravaged by a roadside bomb in Afghanistan. As Sergeant Remsburg, blind in one eye and having to learn to walk again, made it to his feet in the first lady’s box, lawmakers of both parties gave him an extended ovation.

But Mr. Obama’s message centered on the wide gap between the wealthiest and other Americans as he positioned himself as a champion of those left behind in the modern economy. “Those at the top have never done better,” he said. “But average wages have barely budged. Inequality has deepened. Upward mobility has stalled.

“The cold, hard fact is that even in the midst of recovery, too many Americans are working more than ever just to get by, let alone to get ahead,” he added. “And too many still aren’t working at all. So our job is to reverse these trends.”

To do so, the president announced an executive order raising the minimum wage to $10.10 an hour for future federal contract workers and the creation of a new Treasury savings bond for workers without access to traditional retirement options. He proposed incentives for trucks running on alternative fuels and higher efficiency standards for those running on gasoline. And he announced a meeting on working families and a review of federal job training programs.

Mr. Obama was gambling that a series of ideas that seem small-bore on their own will add up to a larger collective vision of an America with expanded opportunity. But the moderate ambitions were a stark contrast to past years when Mr. Obama proposed sweeping legislation to remake the nation’s health care system, regulate Wall Street, curb climate change and restrict access to high-powered firearms.

In her party’s official response, Ms. Rodgers offered a folksy, personal presentation, describing in moving terms her 6-year-old son, Cole, who was born with Down syndrome, even as she assailed Mr. Obama’s health care program, spending record and regulations. “Too many people are falling further and further behind because, right now, the president’s policies are making people’s lives harder,” she said. “Republicans have plans to close the gap.”

But in a sign of the continued divisions within the Republican Party, some of its conservative leaders offered separate responses. Senator Mike Lee of Utah delivered a speech on behalf of Tea Party activists, and Senator Rand Paul of Kentucky distributed his own remarks on Facebook, YouTube and other social media.

Mr. Lee echoed his party message by criticizing Mr. Obama’s policies, declaring that “Obamacare, all by itself, is an inequality Godzilla.” But he also noted, “My own party has been part of the problem, too often joining the Democrats to rig our economy to benefit the well-connected at the expense of the disconnected.”

Both the president and lawmakers brought guests intended to make political points. Among the Republican guests was Willie Robertson, a star of the reality show “Duck Dynasty,” whose father stirred controversy by condemning “homosexual offenders.”

Other guests in the first lady’s box with Michelle Obama were Americans who have benefited from the president’s health care program and, in a jab at Senator Mitch McConnell, the Republican leader, Gov. Steve Beshear, who has energetically carried out the program in their home state, Kentucky.

The response of members at points in the speech may have offered signals of the year to come. When Mr. Obama urged Congress to “fix our broken immigration system,” Speaker John A. Boehner and other Republicans applauded, foreshadowing an effort to find a bipartisan compromise. When Mr. Obama boasted that he had “rolled parts of” Iran’s nuclear program back, there was no applause, amid bipartisan skepticism of diplomacy with Tehran.

Despite his vow to move ahead without Capitol Hill, Mr. Obama said he was not giving up on Congress altogether and recycled calls for many past legislative priorities, like extending unemployment insurance. “Let’s see where else we can make progress together,” he said.

He said “this needs to be the year” that lawmakers clear the way to closing the prison at Guantánamo Bay, Cuba. He called for an across-the-board increase in the minimum wage to $10.10 from $7.25. “Say yes,” he urged. “Give America a raise.” He called for expanding the earned-income tax credit for low-wage workers without children.

And he offered a vigorous defense of his embattled health care program. “Let’s not have another 40-something votes to repeal a law that’s already helping Americans,” he said.

But after a year in which most of his legislative priorities, like gun control, went nowhere, Mr. Obama has made it clear that he has restrained expectations about his ability to compromise with Republicans in the House. Mr. Obama’s minimum wage plan provided an example of the new approach he plans. Since he failed to push through legislation last year, he decided to issue his order covering federal contractors.

Still, the order also illustrated the limits of that approach. An increase in the minimum wage passed by Congress would mean a raise for 17 million Americans. Mr. Obama’s executive order, by contrast, will affect relatively few workers at first because it will apply only to new or renewed contracts. Eventually it might affect several hundred thousand workers at most, according to some estimates.

By the numbers, Mr. Obama has so far been restrained in his use of executive power. He has signed just 168 executive orders, and the 147 he issued in his first term were the fewest of any president over a similar period going back at least a century. In their first terms, George W. Bush signed 173 executive orders, Bill Clinton 200 and Ronald Reagan 213.

But the numbers matter less than the scope of the ones that are signed. Mr. Obama has unilaterally deferred deportation of younger illegal immigrants, delayed enforcement of his health care law and declined to defend legal challenges against the Defense of Marriage Act, a law barring federal recognition of same-sex marriages.

Perhaps the most far-reaching are regulations being developed to limit carbon emissions at the nation’s power plants.

A version of this article appears in print on January 29, 2014,

on page A1 of the New York edition with the headline:

Obama Taking Up Economic Issues on His Authority.

    In State of the Union Address,
    Obama Vows to Act Alone on the Economy,
    NYT, 28.1.2014,
    http://www.nytimes.com/2014/01/29/us/politics/obama-state-of-the-union.html

With Plan to Overhaul Spying,

the Divisiveness Is in the Details

JAN. 18, 2014
The new York Times
By PETER BAKER
and JEREMY W. PETERS

WASHINGTON — The roiling debate over security and liberty did not end with President Obama’s newly announced overhaul of surveillance practices. Rather, it now enters a volatile next phase as intelligence agencies and a divided Congress try to turn principles into policy.

In responding to months of uproar about government spying, Mr. Obama left to be decided the details that would determine just how meaningful the change he promised would be. He asked security officials to develop ways to protect the privacy of foreigners. He asked Congress to help figure out how to store bulk telephone data. He invited other proposals to restructure a secret intelligence court.

All of which means that the future shape of a surveillance apparatus whose secrets have been uncomfortably exposed remains far from certain. The assurances Mr. Obama offered his critics may be made more nebulous by exceptions written into any new policies. The question of what to do with a vast trove of data on everyday Americans may elude policy makers who cannot agree on much. And yet legislators may find their usual politics scrambled by an issue that crosses party lines.

“It’s the beginning of a long process, and the end on some of this is still unclear,” said former Representative Jane Harman, an author of the last major surveillance law and now the president of the Woodrow Wilson International Center for Scholars. “But the good news is now there’s a full debate in the Congress and in the country about our values and how to address security and liberty at the same time.”

The debate injects the touchy issue into the congressional arena as lawmakers enter an election year. Where once there was little popular demand for reining in the spy agencies, today momentum has built in some quarters after many disclosures by Edward J. Snowden, the former National Security Agency contractor.

Mr. Obama’s approach, outlined in a much-anticipated speech on Friday, leaves intact the spy programs that have stirred so much debate but modifies them in hopes of persuading the public that they will not be abused. The N.S.A. will have to get court permission to search a vast repository of telephone data and will not be able to expand the search as far as it did before.

But Mr. Obama had no answer for the biggest question involving the bulk data collection program. Although he said the government should no longer keep the data, he outlined flaws in the only two alternatives floated so far: leaving data with telecommunications providers or creating an independent consortium to store it. He assigned the attorney general, Eric H. Holder Jr., and the director of national intelligence, James R. Clapper Jr., to develop a plan and asked Congress to help.

Unlike many divisive issues to arrive on Capitol Hill, this one appears unlikely to die after a wait for a floor debate that never happens, or to be thwarted by the parliamentary maneuver of an uncompromising leader.

“Reformers may not get all of what we want,” said Senator Richard Blumenthal, Democrat of Connecticut. “But I think there’s a very real prospect of doing better than the president has proposed, and he’s acknowledged himself that there may be a need for taking additional steps.”

Others were not so certain. “This happens all the time in Washington,” said Senator Rand Paul, Republican of Kentucky and a vocal critic of surveillance programs. “Everybody gets in an uproar — ‘Congress must act! Congress must act!’ But when they do act, they do something devious and don’t really address the problem.”

Indeed, supporters of the N.S.A. programs say they expect Congress to resist undercutting programs that protect the public. “You will see changes at the margins with significant ambiguities and exceptions that will provide the executive branch with lots of flexibility,” predicted former Representative Peter Hoekstra, Republican of Michigan, a onetime chairman of the House Intelligence Committee.

What distinguishes the surveillance issue from so many that have stymied a polarized Congress is that it does not follow easy patterns. The libertarian right, represented by Mr. Paul, has joined the liberal left, represented by lawmakers like Senator Bernard Sanders of Vermont, an independent who calls himself a socialist.

On the other side are the leaders of both parties, like Senator Dianne Feinstein, Democrat of California, and Representative Mike Rogers, Republican of Michigan, leaders of the Intelligence Committees and supporters of the surveillance programs. The two attended Mr. Obama’s speech on Friday at the Justice Department, then lingered together afterward consulting with Mr. Clapper. Within a few hours, the two issued a joint statement defending the programs.

“It’s interesting because there’s splits within both parties,” said Peter Swire, a Georgia Tech professor who served on a panel of Mr. Obama’s that reviewed the surveillance programs. “Potentially it makes it easier, because members are open to persuasion. It’s not a party-line vote.”

Senator Angus King of Maine, an independent who usually votes with Democrats, said: “Ideology is sort of confusing on this one. When you have Rand Paul and Bernie Sanders on the same side, that makes for a pretty interesting debate.”

Indeed, some Democrats seemed eager to use the issue to distance themselves from an unpopular chief executive. “I don’t believe innocent Alaskans’ personal records need to be collected and analyzed in bulk in an effort to help catch terrorists,” said Senator Mark Begich of Alaska, who faces a challenging race for reelection this year. “It’s a violation of our civil liberties and is heavy-handed — like using a shark hook to fish for a salmon.”

In the Senate, the debate sets up a possible clash among three of the most powerful and headstrong Democrats: Ms. Feinstein; Patrick J. Leahy of Vermont, chairman of the Judiciary Committee and an advocate for expansive changes; and Harry Reid of Nevada, the majority leader, who feels pinched between the White House and members of his caucus.

In the House, the issue pits Speaker John A. Boehner of Ohio against some in his Republican caucus. When the House debated a bill that would have blocked the N.S.A. from collecting bulk telephone data, the measure came within a dozen votes of passing. Although speakers rarely vote, Mr. Boehner took the unusual step of voting in opposition.

Mr. Boehner has not endorsed the legislation that seems most likely to be the vehicle for the debate over N.S.A. practices this year, which has been drafted by Mr. Leahy and Representative Jim Sensenbrenner of Wisconsin, who as an author of the Patriot Act holds considerable sway with his Republican colleagues. The bill would end bulk data collection and establish an independent counsel to argue against government requests at the Foreign Intelligence Surveillance Court.

“The bottom line is real reform cannot be done by presidential fiat,” Mr. Sensenbrenner said, bluntly making the case that Congress has to act where the White House stopped short. “The president and intelligence community have repeatedly misled Congress and the American people and lack credibility for reform.”

Representative Adam B. Schiff, Democrat of California, who also has sponsored legislation that would curb surveillance programs, said lawmakers may still not go far. “I’m not all that sanguine about Congress’s ability to step up to the plate and enact reform on its own,” he said. “Congress will do some of the easy things,” like require more transparency in surveillance.

But it may not be until next year, when the Patriot Act comes up for renewal, that more significant issues are addressed. “Unequivocal defenders know the program disappears in 18 months,” Mr. Schiff said. “That may make them more amenable to compromise.”

A version of this news analysis appears in print

on January 19, 2014,

on page A19 of the New York edition with the headline:

With Plan to Overhaul Spying,

the Divisiveness Is in the Details.

    With Plan to Overhaul Spying, the Divisiveness Is in the Details,
    NYT, 18.1.2014,
    http://www.nytimes.com/2014/01/19/us/politics/
    with-plan-to-overhaul-spying-the-divisiveness-is-in-the-details.html

The President on Mass Surveillance

JAN. 17, 2014
The New York Times
By THE EDITORIAL BOARD

In the days after Edward Snowden revealed that the United States government was collecting vast amounts of Americans’ data — phone records and other personal information — in the name of national security, President Obama defended the data sweep and said the American people should feel comfortable with its collection. On Friday, after seven months of increasingly uncomfortable revelations and growing public outcry, Mr. Obama gave a speech that was in large part an admission that he had been wrong.

The president announced important new restrictions on the collection of information about ordinary Americans, including the requirement of court approval before telephone records can be searched. He called for greater oversight of the intelligence community and acknowledged that intrusive forms of technology posed a growing threat to civil liberties.
Related Coverage

President Obama delivered remarks about government surveillance programs at the Department of Justice in Washington on Friday.

“Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power,” Mr. Obama said in a speech at the Justice Department. “It depends on the law to constrain those in power.”

But even as Mr. Obama spoke eloquently of the need to balance the nation’s security with personal privacy and civil liberties, many of his reforms were frustratingly short on specifics and vague on implementation.

The president’s most significant announcement was also the hardest to parse. He ordered “a transition that will end” the bulk collection of phone metadata as it currently exists, but what exactly will end? The database will still exist, even if he said he wants it held outside the government. Mr. Obama should have called for sharp reductions in the amount of data the government collects, or at least adopted his own review panel’s recommendation that telecommunications companies keep the data they create and let the National Security Agency request only what it needs. Instead, he gave the Justice Department and intelligence officials until late March to come up with alternate storage options, seeking a new answer when the best ones are already obvious.

But he added two restrictions that could significantly reduce the possibility of abuse of this information: Wherever the database resides, he said, it may be queried only “after a judicial finding or in the case of a true emergency.” (That calls for a clear definition of “emergency.”) Agency analysts will be permitted to pursue phone calls that are two “hops” removed from a number associated with a terrorist organization, instead of three. That extra hop allowed for the examination of an exponentially larger number of phone calls.

Mr. Obama did not address the bigger problem that the collection of all this data, no matter who ends up holding onto it, may not be making us any safer. That was the conclusion of the president’s review panel as well as a federal judge in Washington who ruled that the bulk-collection program was probably unconstitutional and an extensive report by the New America Foundation finding that the program “has had no discernible impact on preventing acts of terrorism and only the most marginal of impacts on preventing terrorist-related activity.”

Mr. Obama called on Congress to create a panel of independent advocates to argue in significant cases before the intelligence court, which currently hears arguments only from the government and must rely on government officials to identify and disclose their own mistakes. That would be a huge improvement to the one-sided process that often turns the court into a rubber stamp, but Congress is likely to dither over it. It would be better for the president to create the panel himself and work with the courts to find independent members. At the same time, any public advocate must be free to decide what cases to argue and not be limited to the administration’s or the court’s view of what is “significant.”

Mr. Obama wisely sought to tamp down the international furor over surveillance of foreign leaders and ordinary citizens by announcing restrictions on the collection, use and retention of that data. He said he would extend certain protections normally afforded only to Americans. “People around the world, regardless of their nationality, should know that the United States is not spying on ordinary people who don’t threaten our national security,” Mr. Obama said.

Several of the presidential review panel’s key recommendations were not addressed on Friday. The panel said a court order should be required to search through Americans’ emails or calls that are incidentally intercepted; the president called only for unspecified reforms. He rejected the recommendation that judges sign off on the subpoenas used by the F.B.I. to demand business records, known as national security letters, saying only that they should be less secret. That doesn’t go nearly far enough to curb these orders, which have been abused. Mr. Obama said nothing about the process of selecting intelligence-court judges, which now resides solely in the hands of one man, Chief Justice John Roberts Jr. He also failed to address the panel’s call for the N.S.A. to stop undermining commercial efforts to create better encryption technology.

One of his biggest lapses was his refusal to acknowledge that his entire speech, and all of the important changes he now advocates, would never have happened without the disclosures by Mr. Snowden, who continues to live in exile and under the threat of decades in prison if he returns to this country.

The president was right to acknowledge that leaders can no longer say, “Trust us, we won’t abuse the data we collect.” But to earn back that trust, he should be forthright about what led Americans to be nervous about their own intelligence agencies, and he should build stronger protections to end those fears.

A version of this editorial appears in print on January 18, 2014,

on page A22 of the New York edition with the headline:

The President on Mass Surveillance.

    The President on Mass Surveillance, NYT, 17.1.2014,
    http://www.nytimes.com/2014/01/18/opinion/the-president-on-mass-surveillance.html

A Crucial Caveat

in Obama’s Vow on Phone Data

JAN. 17, 2014
The New York Times
By PETER BAKER

WASHINGTON — In overhauling the nation’s spy programs, President Obama vowed on Friday that he “will end” the bulk telephone data program that has caused so much consternation — “as it currently exists.”

The caveat is important. Although Mr. Obama imposed some new conditions on the program, the National Security Agency, for the time being at least, will continue to maintain and tap into its vast catalog of telephone data of tens of millions of Americans until someone can think of another way to do the same thing.

The series of surveillance changes offered by Mr. Obama on Friday were intended to reassure a wary public without uprooting programs that he argued have helped protect the country. In his most extensive response to revelations by Edward J. Snowden, the former N.S.A. contractor, Mr. Obama ordered more transparency and instituted more safeguards, but he either passed over the most far-reaching recommendations of his own review panel or left them for Congress and the security agencies themselves to hash out.

The president, in response to months of debate set off by the disclosures of Edward J. Snowden, highlighted changes to the National Security Administration’s practices.

“The reforms I’m proposing today should give the American people greater confidence that their rights are being protected, even as our intelligence and law enforcement agencies maintain the tools they need to keep us safe,” Mr. Obama said in his speech in the cavernous Great Hall of the Justice Department. “And I recognize that there are additional issues that require further debate.”

Mr. Obama argued that the programs that have become so disputed had not been abused and yet needed reform to avoid the perception of abuse. And as he tried to satisfy critics by embracing their concerns, Mr. Obama also seemed determined to avoid alienating many of the major players involved in the country’s intelligence programs.

He deferred to James B. Comey, the F.B.I. director, by rejecting a proposal by his review panel to require court approval of administrative subpoenas known as national security letters. He avoided offending Chief Justice John G. Roberts Jr. by declining to accept a recommendation to take away his unilateral power to appoint every member of the Foreign Intelligence Surveillance Court, which oversees secret spying programs.

Mr. Obama agreed with telecommunications providers and did not back a proposal to have them keep the bulk data now housed at the N.S.A. He did not take on the N.S.A. military establishment by permitting a civilian to head the agency or by making the director’s position subject to Senate confirmation, two other recommendations of his advisers. And he acceded to Judge John D. Bates, the former surveillance court chief judge who had told Congress that any new privacy advocate appointed to argue before the court should not be an independent figure allowed to participate across the board.

Civil liberties advocates who had pressed Mr. Obama to do more reacted with a mix of optimism and disappointment. “While I appreciate the president’s effort to strike a better balance between the twin imperatives of protecting Americans from harm and ensuring their civil liberties, the steps he announced today fall short of reining in the N.S.A.,” said Representative Peter Welch, Democrat of Vermont.

Supporters of the intelligence programs, on the other hand, were skeptical, worrying that the immediate changes ordered by Mr. Obama may produce more procedural hurdles, and that the larger changes still possible down the road would hinder the search for terrorists.

Michael Allen, a national security aide in the Bush administration who also worked for the House Intelligence Committee, said that if nothing else, the changes may inspire confusion and risk aversion. Referring to the bulk data collection, Mr. Allen said, “The president says it is important, could have helped us prevent 9/11, it has worked, there are no instances of abuse, but we should change it anyway.”

The bulk data program seemed to cause the most difficulty for the president as he pondered what to do about it. His review panel suggested taking the data out of the N.S.A.'s hands and leaving it with telecommunications companies or a newly created independent entity. The N.S.A. could then tap it only in certain instances while investigating terrorist links.

Mr. Obama deemed both of those ideas unworkable and so put off a decision by saying he supported the goal of removing the data from the N.S.A. but would ask Attorney General Eric H. Holder Jr. and James Clapper Jr., the director of national intelligence, to come up with a way of doing that. He also sought ideas from Congress, which would have to pass legislation to change the program.

In the meantime, he set out a new rule that “the database can be queried” only with permission from the surveillance court, but allowed an exception “in the case of a true emergency.” He did not define what would constitute such an emergency or who would determine whether a situation qualified. Nor did he clarify whether the court would have to approve each time a new telephone number was searched or each time a new target was searched. But some program supporters expressed concern that it could take too long.

He also limited the scope of searches, allowing analysts to study data two layers removed from the target, instead of three. Intelligence officials have accepted such a change because the amount of data expands so vastly three layers out that it becomes less useful.

The details matter, and may become clearer in coming days. But for a president who came to office promising to end what he considered the excesses of the new security state, Mr. Obama’s speech on Friday was as much about the larger question of faith. Rather than throw out the programs at issue, he hoped to convince the public that they are being run appropriately.

That reflected an evolution for the president’s attitude toward the dispute. When the first of Mr. Snowden’s revelations came out last year, Mr. Obama seemed surprised at the public reaction.

“If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here,” he said last June.

By Friday, he had come to agree that Americans had every reason to be skeptical. “Given the unique power of the state,” Mr. Obama said, “it is not enough for leaders to say ‘trust us, we won’t abuse the data we collect,’ for history has too many examples when that trust has been breached. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends on the law to constrain those in power.”

    A Crucial Caveat in Obama’s Vow on Phone Data, NYT, 17.1.2014,
    http://www.nytimes.com/2014/01/18/us/
    a-crucial-caveat-in-obamas-vow-on-phone-data.html

Obama Seeks Balance in Plan

for Spy Programs

JAN. 9, 2014
The New York Times
By PETER BAKER
and CHARLIE SAVAGE

WASHINGTON — As he assembles a plan to overhaul the nation’s surveillance programs, President Obama is trying to navigate what advisers call a middle course that will satisfy protesting national security agencies while tamping down criticism by civil liberties advocates.

Mr. Obama has not tipped his hand much during the meetings he has held with intelligence officials and lawmakers before he unveils his plan as early as next Friday. But some of the proposals under consideration are forcing him to decide just how much he is willing to curtail government spying in the interest of reassuring a wary public.

The challenge was brought into stark relief on Thursday when James B. Comey, who is the director of the Federal Bureau of Investigation and was recently appointed by Mr. Obama, went public with his objections to a recommendation of a presidential review group. The panel suggested requiring court review of so-called national security letters compelling businesses, under a gag order, to turn over records about customer communications and financial transactions.

“What worries me about their suggestion that we impose a judicial procedure on N.S.L.’s is that it would actually make it harder for us to do national security investigations than bank fraud investigations,” Mr. Comey said. He added, “I just don’t know why you would make it harder to get an N.S.L. than a grand jury subpoena,” calling the letters “a very important tool that is essential to the work we do.”

Such letters have long been used in bank fraud and other cases, but their use exploded over the past decade as they were expanded to terrorism investigations, with the agency now issuing tens of thousands a year since Congress lowered the legal standard. The review panel urged Mr. Obama to require a judge to find “reasonable grounds” that the information sought “is relevant” to terrorism activities.

Mr. Obama has run into resistance from national security officials to other proposals. They oppose checks on government subversion of commercial encryption software, and they argue that further limits on another program intercepting communications would create legal, political and bureaucratic uncertainties.

But Mr. Obama has met more acquiescence on two proposals he seems likely to adopt. One would have telecommunications firms or a private consortium, rather than the government, store vast troves of telephone metadata. Another would establish a public advocate to argue against the government before a secret intelligence court that oversees surveillance.

A departing N.S.A. official said in an interview to be aired on NPR on Friday that the agency would accept a public advocate. “I would welcome that advocacy in the room,” said John Inglis, who is retiring as deputy N.S.A. director on Friday. “The question is how operationally efficient can you make it.”

Yet such moves may not satisfy vocal critics of the N.S.A. after revelations by its onetime contractor Edward J. Snowden. A committee of former N.S.A. officials released 21 recommendations on Thursday that go much further, like outlawing national security letters and revoking 2008 legislation authorizing expansive surveillance.

The debate came as lawmakers digested a report by the Defense Intelligence Agency concluding that Mr. Snowden’s revelations probably made American forces overseas more vulnerable. “Snowden’s actions are likely to have lethal consequences for our troops in the field,” said Representative Mike Rogers, Republican of Michigan and chairman of the House Intelligence Committee.

Documents leaked by Mr. Snowden revealed military techniques to secure, and interfere with, telephone and computer network communications. But the D.I.A. report remained classified and it was difficult, officials acknowledged, to quantify any damage. Ben Wizner, an American Civil Liberties Union lawyer who advises Mr. Snowden, criticized the lawmakers’ description of the account as “exaggerated national security claims.”

Mr. Obama spent 90 minutes on Thursday talking with lawmakers from both parties about the proposed policy changes, a day after meeting with Mr. Comey and other national security officials, and separately, a privacy advisory board. White House officials will also meet on Friday with technology company executives.

One adviser, who spoke about the president’s deliberations on condition of anonymity, said Mr. Obama was seeking a middle ground that probably would draw complaints from both security and privacy advocates. “Whatever he does next week will be an attempt to reach that balance, and on both sides there will be some element of dissatisfaction,” the adviser said.

Some of the 16 lawmakers who attended the meeting in the Roosevelt Room said Mr. Obama was still sorting through the complex issues. “The president is thinking through this in a very correct way, and I think he’s asking the right questions and still making up his mind,” said Senator Saxby Chambliss of Georgia, the top Republican on the Intelligence Committee.

Senator Richard Blumenthal, Democrat of Connecticut, said Mr. Obama seemed likely to support a public advocate as well as a change in the method of appointing members of the secret intelligence court. “He’s clearly given it a lot of thought — very penetrating and searching thought,” Mr. Blumenthal said.

Much of the discussion centered on the metadata program. “The critical question at the end of the day is if the program has some value, how is that weighed against the cost of collecting millions and millions of domestic call records of the American people?” asked Representative Adam Schiff, Democrat of California and a member of the Intelligence Committee. Even if Mr. Obama shifts storage of such data, officials have debated whether each telecommunications company should keep its own or a single consortium should be created to house all of it. Some officials complained it would be inefficient if the N.S.A. had to go to individual companies each time it wanted to search for a number, while critics like Mr. Schiff said creating a consortium would be pointless because it would be seen as a de facto arm of the N.S.A.

Senator Ron Wyden, Democrat of Oregon and a critic of the surveillance programs, said he objected during the meeting to the assertion that the bulk records program thwarted attacks. He said he read aloud a sentence from Mr. Obama’s review group report declaring that information gleaned by the program “was not essential to preventing attacks and could readily have been obtained in a timely manner” using conventional means.

Michael S. Schmidt, David E. Sanger

and Jeremy W. Peters contributed reporting.

A version of this article appears in print on January 10, 2014,

on page A12 of the New York edition with the headline:

Obama Seeks Balance In Plan for Spy Programs.

    Obama Seeks Balance in Plan for Spy Programs, NYT, 9.1.2014,
    http://www.nytimes.com/2014/01/10/us/
    obama-seeks-balance-in-plan-for-spy-programs.html