Obama expected to turn to Congress to help decide fate of NSA phone data collection

By Ellen Nakashima and David Nakamura, Published: January 15

President Obama on Friday is expected to announce some new limits on the National Security Agency program that collects billions of Americans’ phone records, but he will call on Congress to help determine the program’s future, according to current and former officials familiar with the administration’s plans.

Obama has concluded that the program has value as a counterterrorism tool, the officials said, but is also confronting difficult political realities. The program’s sweeping nature has prompted serious privacy concerns, and a divided Congress is unlikely to renew it when the law underpinning the program expires next year.

“Congress has a responsibility to establish limits on government surveillance, so it’s entirely appropriate that Congress weigh in on the phone records program,’’ said Jeremy Bash, a former CIA and Pentagon chief of staff who said he was not briefed on Obama’s remarks.

Officials have said Obama’s speech is part of an effort to restore confidence at home and abroad in the government’s surveillance policies. While the NSA program has perhaps raised the most significant concerns about privacy, a series of disclosures over the past eight months has generated controversy over U.S. intelligence activities.

White House officials said Obama’s speech is still being crafted and declined to comment. He will deliver the address at the Justice Department in his first appearance there — a symbolic choice to signal the administration’s commitment to the rule of law even in the secret world of surveillance.

One former official familiar with the internal deliberations said presidential aides considered sending Obama to Maryland’s Fort Meade, where the NSA is headquartered, for what would have been his first visit to the spy agency. But advisers decided against it.

Two people familiar with the deliberations said the president is likely to emphasize that the NSA’s bulk collection of phone data — which includes numbers dialed but not call content — is not something that the government should rely on except in limited circumstances related to the agency’s mission.

The program was begun after the Sept. 11, 2001, terrorist attacks and was placed under court supervision in 2006. Analysts are supposed to access the data only for the purpose of seeking leads in counterterrorism investigations.

The White House has opted not to shift the job of holding the phone records for the NSA to phone companies, which a presidential advisory group recommended in a report last month. The idea provoked opposition from company executives, who met with White House officials and said it was unworkable, given that the companies hold data in different formats and for different lengths of time.

“My guess is the more they looked at this the more complicated it got and they realized this isn’t the silver bullet,” said one company executive who was not authorized to speak on the record.

Current and former officials had mixed views on the likely effect of any new limits on the program. “There’s going to be substantive changes,” said one U.S. official briefed on the deliberations who was not authorized to speak on the record. Other officials have said that the constraints would not be that significant.

“It’s hard for the administration to totally disavow these intelligence collection programs, because it has always been for these programs prior to them being exposed in the press,” said Bash, who is managing director at Beacon Global Strategies, a consulting firm. “The Justice Department claimed strongly to the Senate Intelligence Committee that this program was lawful, effective and important.”

The House probably will have the votes to block the program’s renewal next year — absent a major attack or other event that changes the political climate. That has colored the White House’s thinking about how to proceed, officials said.

The decision to turn to Congress for guidance, first reported in the New York Times, has already drawn fire from disparate audiences, underscoring the challenge Obama faces in reconciling competing interests in his speech.

Some former senior intelligence officials are drawing parallels to Obama’s decision in the fall to ask Congress to approve a military strike on Syria for its use of chemical weapons, even after he had said such use would be a “red line.” If the president turns to Congress to decide the fate of the NSA program, said one former senior official, “he’ll get criticized, historically, for ceding executive power.” This former official and others interviewed for this article spoke on the condition of anonymity to be candid in their assessments.

Anthony D. Romero, the executive director of the American Civil Liberties Union, said: “President Obama’s speech will determine not only the direction of national security policy but his fundamental civil liberties legacy. If the president doesn’t put an end to the government’s bulk data collection, he will retain one of George W. Bush’s most controversial surveillance programs. The idea that you would pass the buck to Congress to fix a problem of this importance begs credibility.”

Those in Congress who want to institute new limits on the program say they feel the last eight months or so have created an unprecedented opportunity, as Sen. Ron Wyden (D-Ore.) said in a recent interview, “to produce reforms that show that security and liberty are not mutually exclusive.”

In his speech, Obama also is expected to support greater privacy protections for non-U.S. citizens, a move geared toward restoring trust among Europeans, in particular, after news reports last year about the NSA’s collection of data from U.S. carriers overseas and about NSA eavesdropping on foreign leaders.

That idea has stirred criticism in national-security circles.

“The entire mission of our intelligence agencies is to collect foreign intelligence without regard to the civil liberties of the targets against whom we’re collecting,” said a second former senior intelligence official. “It’s a dangerous road to go down to start worrying about the civil liberties and constitutional rights of people like the president of Pakistan or the senior military commander in Libya.”

Obama’s challenge is to satisfy several vastly different stakeholders at once: European audiences, tech companies with global markets that are feeling pressured because of their compliance with the NSA, a Democratic base that includes privacy and civil liberties groups, and the intelligence community and its supporters in Congress.

“He’s got to be the educator in chief on this and start with why intelligence collection programs are important,” said Ben Chang, a former National Security Council official in the George W. Bush and Obama administrations. “That is a start to restoring confidence. From there, you can then move forward on reforms in a partnership with groups, inside and outside of government, that sometimes have competing interests.”

A major portion of Obama’s speech is expected to address the privacy of foreigners and businesses overseas, which are worried about how well their data are protected by U.S. companies that cooperate with the government.

“Addressing a lot of those concerns is going to be key to the speech,” one official said.

In the past few weeks, Obama and senior White House advisers have met with lawmakers, tech and phone company executives, and privacy advocates to hear their views. Obama has spoken by phone with German Chancellor Angela Merkel, whose cellphone calls had been tapped, a revelation that triggered an outcry in Berlin.

At the same time, intelligence and defense officials have pushed back hard against sweeping changes, arguing that the bulk collection of telephone data is necessary to keep the country safe from terrorism, even though the White House advisory group concluded in its report that the data had not been “essential” to preventing terrorist attacks.

Sari Horwitz contributed to this report.