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WASHINGTON — Five years into his presidency, Barack Obama presides over a national security apparatus that in many ways still resembles the one left behind by President George W. Bush. Drones are killing terrorism suspects, the U.S. military prison at Guantanamo Bay, Cuba, holds “enemy combatants” and the government secretly collects telephone records of millions of Americans.
This from a president who in 2008 ran as the anti-Bush candidate who would get the U.S. out of Iraq, put an end to torture and redefine U.S. policies abroad.
But even as he has ended the war in Iraq, changed interrogation standards and sought to build foreign alliances, the former constitutional law professor also has disappointed some allies by embracing, and in some cases expanding, the counterterrorism policies that caused Bush to run afoul of civil libertarians.
Over the past two days, news accounts have revealed that the government has collected millions of Americans’ phone records in the name of national security and has also conducted an Internet surveillance program that tracks people’s movements and contacts that the Obama administration says is aimed exclusively at non-citizens outside the U.S. Both programs rely on the Bush-era Patriot Act, which Congress has since twice reauthorized with Obama’s support.
The disclosures come two weeks after Obama declared in a major speech that when it comes to the nation’s security “America is at a crossroads” and proposed a more targeted counterterrorism strategy. But even while calling for a national debate over the appropriate balance between security and freedom, that speech, and the reports of phone and Internet surveillance by the National Security Agency, underscored that Obama, like Bush before him, has an overriding preoccupation about a terror attack on U.S. soil.
“The top priority of the president of the United States is the national security of the United States and protecting the homeland, and we have to make sure we have the tools we need to confront the threat posed by terrorists,” White House spokesman Josh Earnest said Thursday in defending the collection of phone records.
That program is a “critical tool in protecting the nation from terror threats,” Earnest added.
Obama supporters might be forgiven for thinking he would have had something else in mind.
Before becoming president, Obama unsuccessfully sought changes in the USA Patriot Act that would have placed restrictions on the very provision that his administration now uses to collect phone records.
The changes, proposed in a 2005 bill that Obama as a senator co-sponsored, would have required that “the records sought pertained to a terrorist or a spy or another agent of a foreign power,” Gregory T. Nojeim, a senior counsel at the Center for Democracy & Technology, said Thursday. “The surveillance that was revealed yesterday is of records that pertain to everyone else.”
“It’s disappointing, it’s troubling and it’s hard to justify given that alternatives that would protect both national security and civil liberties are available,” added Nojeim, a former legislative counsel at the American Civil Liberties Union.
Seeking to quell the outcry, Director of National Intelligence James Clapper issued an unusual late-night statement Thursday saying that the records obtained are subject to strict court-imposed restrictions and that only a small fraction are actually ever reviewed.
“The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization,” he said.
He called the disclosure of the Internet surveillance program “reprehensible” and said it cannot be used to “intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States.”
No doubt, Obama has been aggressive in the measures he has employed to fight terrorist threats. And while he has fruitlessly sought to close the detention facility for terrorist suspects at Guantanamo, he has broadened Bush’s drone warfare program, even approving a drone strike abroad to kill an American citizen, Anwar al-Awlaki, who was accused of having links to planned terror attacks. The Justice Department last month acknowledged that three other Americans also have been killed by drones, all unintended targets.
At the same time, the president has encouraged vigorous investigation of national security leaks. The Justice Department so far has prosecuted six government officials for sharing classified information and, in pursuing two other cases, has obtained the records of phones used by Associated Press journalists and the emails of a Fox News reporter.
“When you wake up every morning and get a PDB that outlines all the threats to the United States, it’s a daily reminder of the things we need to do to protect the United States,” Tommy Vietor, Obama’s former National Security Council spokesman, said referring to the President’s Daily Brief of intelligence data.
Politically, Obama has benefited from his counterterrorism policies, particularly the 2011 killing of Osama bin Laden. During his re-election campaign last year, Obama got high approval ratings in public opinion polls for his record on national security.
And despite the stir caused by the NSA’s acquisition of phone records, members of Congress, particularly those who serve on the House and Senate Intelligence committees, have been regularly apprised of the program in secret briefings. Many Democrats and Republicans defended the practice.
“This is a program that’s been in effect for seven years, as I recall,” Senate Majority Leader Harry Reid, D-Nev., said. “It’s a program that has worked to prevent not all terrorism but certainly the vast, vast majority. Now is the program perfect? Of course not.”
The Republican chairman of the House Intelligence Committee, Rep. Mike Rogers of Michigan, said the program within the last few years stopped a terrorist attack in the U.S. He did not elaborate, but added: “It is a very valuable thing. It’s legal. It’s been authorized by Congress, judicial oversight and review.”
Indeed, only a handful of lawmakers have raised public objections, but until now they had been couched because briefings on the matter are classified.
One of those critics, Sen. Jeff Merkley, D-Ore., said the public should know whether the Patriot Act is being interpreted narrowly or broadly by the administration and by the secret courts authorized by the Foreign Intelligence Surveillance Act.
“The document publicized yesterday certainly suggests that the secret interpretation of the law is much more like a barn door,” Merkley said in an interview.
Merkley said he asked the Justice Department in December to declassify the opinions of the FISA court so Congress could debate whether to narrow the standards used to gather information. He said he has not received a reply.
“The response is totally inadequate,” he said.