Does President Barack Obama think we’re stupid?
That’s the only conclusion possible after watching Friday’s bravura performance in which the president announced a set of proposals meant to bring more transparency to the National Security Agency — and claimed he would have done it anyway, even if Edward Snowden had never decided to leak thousands of highly sensitive documents to The Guardian’s Glenn Greenwald.
But even as he grudgingly admitted that the timing, at least, of his suggestions was a consequence of Snowden’s actions, the president declared, “I don’t think Mr. Snowden was a patriot.” When you look at what has changed over the past two months, though, it’s hard not to wonder, “What could be more patriotic than what Snowden did?”
First, the results: More than a dozen bills have already been introduced to put a stop to the NSA’s mass phone record collection program and to overhaul the Foreign Intelligence Surveillance Court, which has reinterpreted the Fourth Amendment in secret, creating a body of privacy law that the public has never read. A half-dozen new privacy lawsuits have been filed against the NSA. The Pentagon is undergoing an unprecedented secrecy audit. U.S. officials have been caught deceiving or lying to Congress. The list goes on.
These actions have been accompanied by a sea change in public opinion about surveillance. Poll after poll has shown that for the first time ever, Americans think the government has gone too far in violating their privacy, with vast majorities believing the NSA scooping up a record of every phone call made in the United States invades citizens’ privacy.
While the administration certainly doesn’t believe Snowden is patriotic, Americans do. A Quinnipiac poll conducted this month found people agreed, 55 percent to 34 percent, that he is a whistleblower — a large margin that crossed party, gender and age lines. A recent Reuters poll showed only 31 percent of the public thought he should be prosecuted.
Obama claimed in his press conference that Snowden stole his thunder, that he was one who tried to initiate a surveillance debate prior to Snowden’s leaks. But, he complained, “rather than an orderly and lawful process to debate these issues and come up with appropriate reforms, repeated leaks of classified information have initiated the debate in a very passionate but not always fully informed way.” That argument just doesn’t comport with reality.
In his speech in May on national security, the president did indeed announce a review of surveillance policy. What he failed to mention, though, was that the very same speech was spurred by another leak — of the Justice Department white paper justifying drone strikes on Americans overseas. There’s been no change in transparency surrounding drone strikes since the speech, as Obama himself proved later in the press conference when he refused to confirm a drone strike took place in Yemen last week — there were several.
The fact is Obama has had years to initiate a debate about surveillance but instead has actively stifled it. Although, as he acknowledged Friday, he was a huge critic of the PATRIOT Act as a senator, his administration actively opposed privacy and oversight amendments in 2011. Similarly, in December 2012 — just eight months ago — the administration opposed all oversight fixes to the FISA Amendments Act. It passed unchanged with little debate.
The FISA Amendments Act is the law that, as The New York Times reported on its front page last week, the NSA has used to “search the contents of vast amounts of Americans’ email and text communications into and out of the country.”
Obama didn’t say a word about the Times’ bombshell story Friday, nor did he mention the Guardian story from the same day explaining how another loophole in the FISA Amendments Act allows the NSA to search its databases for Americans without a warrant.
Just how much has changed since Snowden went rogue?
Two cases tell the tale: In litigation over the administration’s secret legal interpretation of the Section 215 of the PATRIOT Act a few months ago, the government wouldn’t even give a page count of its opinion, let alone what it said. Similarly, a Freedom of Information Act lawsuit for the 2011 FISA court opinion ruling NSA activities unconstitutional led to the release of 30 pages completely redacted.
On Friday, the administration released a full white paper of its secret legal interpretation of Section 215 of the PATRIOT Act, which the NSA has used to vacuum up every domestic telephone record in the country without suspicion. The administration also announced that the 2011 FISA court opinion ruling some NSA surveillance unconstitutional will be released nine days after its Aug. 12 deadline.
Obama said that if Snowden is truly patriotic, he would come back to the United States and make his arguments in court and leave it up to a jury to decide. Unfortunately, there’s no public interest exception to the Espionage Act. The administration has managed to convince courts in recent years that issues like a leaker’s intent to inform the public, the value of the leaks or the lack of damage that the leaks have caused to national security are inadmissible in court.
Obama also boasted that he has enhanced protections for whistleblowers. But as the Center for Public Integrity reported after the speech, the president’s executive order “specifically excluded intelligence contractors like Snowden.”
As New York Times reporter James Risen — who knows a thing or two about whistleblowers — said on CNN recently, “We wouldn’t be having this discussion if it wasn’t for [Snowden]. That’s the thing I don’t understand about the climate in Washington these days is that people want to have debates on television and elsewhere, but then you want to throw the people who start the debates in jail.”
But Risen made another, less publicized appearance this week at the annual National Press Club awards dinner. What he said there is even more poignant. “I don’t think there’s any personality that’s more American than a whistleblower,” he said. “The entire personality and DNA of America [is made up] of people who wanted to have their own kind of government and be free of oppression. And I think that is the heart of what a whistleblower is. It’s somebody who believes civil liberties or freedom or corruption are important issues that they need to talk about, and their right as an American is to talk about it with the press.”
If Congress passes meaningful NSA reform, Snowden may go down in history as the most influential whistleblower in American history. What could be more patriotic than that?
Trevor Timm is executive director of Freedom of the Press Foundation, a non-profit organization dedicated to supporting and defending public-interest, transparency journalism.