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Opinion Op-Ed

Obama's NSA blind spot

President Obama's recent speech on government surveillance is dominating the conversation, but he won't be making the key decisions on the future of the National Security Agency's collection of domestic phone data. The statutory provision authorizing these massive sweeps expires June 1, 2015. If Congress simply does nothing, the NSA's domestic spying program will soon come to a screeching halt.

The question is whether Americans will seize this opportunity to gain critical perspective on the crisis responses of the George W. Bush years. Voters elected and reelected Obama precisely because he promised to engage in this decisive reappraisal. But his speech failed to redeem this promise.

The president simply tried to reassure America that all is well and only some fine-tuning is required. His remarkable opening lines endow the NSA with a formidable pedigree: "At the dawn of our republic, a small, secret surveillance committee … would patrol the streets, reporting back any signs that the British were preparing raids against America's early patriots." By his account, the NSA is simply carrying on this great tradition of espionage.

In contrast, Obama never mentions the 4th Amendment's demand that "no warrants shall issue, but upon probable cause ... describing the place to be searched, and the persons or things to be seized." This was the Revolutionary generation's serious contribution to America's constitutional legacy, not the precedent set by a "small, secret surveillance committee." What is more, a district court judge recently invoked the amendment to condemn the NSA's indiscriminate data-gathering, providing a vehicle for litigation that will probably reach the Supreme Court.

Obama has no right to sit on the sidelines until the high court tells him what the Constitution means. The president is under an independent obligation to determine that his actions are legitimate. And, as a former professor of constitutional law, he is in a good position to explain why the NSA isn't violating the amendment's demand that the government describe the persons and things involved in its data grabs. My point has been reinforced further by the federal Privacy and Civil Liberties Oversight Board, which issued a majority report Thursday that emphasized the seriousness of the constitutional issues.

But alas, he simply refuses to talk about the 4th Amendment, asserting that the "challenge … is getting the details right."

Worse yet, he gets the details wrong. To set the stage for his intervention, the president commissioned a blue-ribbon advisory committee of respected constitutional lawyers and former national security officials. This five-man panel conducted the most searching outside review of intelligence-gathering in 40 years, producing a remarkable 300-page report with 46 recommendations.

The president adopted only a few of them, often undermining those he did endorse. For example, he announced that the NSA must henceforth gain the approval of a judge on the secret Foreign Intelligence Surveillance Court before gaining access to an individual's telephone records. But this court has served as a notorious rubber stamp because its members are national security conservatives all appointed by Chief Justice John G. Roberts Jr. To create a more diverse panel, the president's advisory committee called for a statutory revision requiring Roberts to share his appointment power with his eight colleagues. But the president failed to endorse this proposal, transforming his initiative into a largely symbolic gesture.

The same is true on the international front. For the first time, he declared that the privacy concerns of foreigners are of fundamental importance, and this is undoubtedly important symbolically. But so long as Americans do not have serious protections, it is small consolation for foreigners to know that they will be treated equally in some, if not all, respects. Similarly, German Chancellor Angela Merkel and other allied leaders will be relieved to learn that their phones won't be tapped, except in extraordinary circumstances. But this conditional assurance doesn't apply to other members of their governments.

Obama has forfeited his claim to principled leadership on this issue, and others must take up the slack. Given the notorious impasse on Capitol Hill, Congress is unlikely to move quickly on the president's proposals. But in this case, delay is a good thing. It will allow civil libertarians in both the Democratic and Republican parties to make surveillance a key issue of the 2014 elections, forcing candidates to take clear stands on the renewal of the Patriot Act. Even today, most observers believe that a majority of House members would vote no on an extension, but serious pressure on the campaign trail would create further momentum for principled reappraisal.

Western allies should also press for a formal intergovernmental agreement on key issues. Obama's assurances are valid only until his term ends. A formal agreement, binding his successors, would transform his symbolic breakthrough into an enduring legacy.

Progress on these fronts would create a congenial environment for the Supreme Court, when appropriate cases begin to reach its docket.

It will take a lot of work from a lot of people to vindicate fundamental Western values. We can't count on Obama to do the job for us.

Bruce Ackerman, a professor of law and political science at Yale, is the author of the forthcoming book, "We the People: the Civil Rights Revolution."

Copyright © 2015, Los Angeles Times
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