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A legacy in the balance on surveillance policies

By New York Times

LAST UPDATED: 1:40 a.m. HST, Dec 20, 2013

WASHINGTON » For President Barack Obama, the proposed overhaul of the U.S. surveillance state confronts him with a fundamental choice: Will he become the commander in chief many expected in 2008 or remain the one he became in 2009? Or is there a balance in between?

At the heart of the report by a White House advisory group is a challenge to Obama's conception of his presidency. A candidate who promised to reverse what he saw as excesses in the war against terrorists wound up preserving and even amplifying many of the policies he inherited. With his last election behind him, he is being challenged to decide if that is still the right approach.

"Whether he implements these recommendations will go a long way toward determining the legacy of his presidency," said Anthony D. Romero, the executive director of the American Civil Liberties Union. "My own sense is the president is deeply conflicted about where's the right place to end up. He's still at his core a constitutional lawyer who understands the importance of these issues, but the realpolitik of the office set in rather quickly."

Developed in response to the revelations by former National Security Agency contractor Edward J. Snowden, the report urged the president to ratchet back the expansive intelligence apparatus that evolved under President George W. Bush and continued to grow under Obama. In effect, the 46 recommendations would constrain some of the autonomy the NSA has come to enjoy and force greater attention to privacy and civil liberties concerns.

But Obama must decide whether such a recalibration would unreasonably increase the risk of terrorists slipping through the surveillance net. For all of his campaign speeches, that was a risk he was not willing to take once in office. Yet in recent months, he has discussed eventually ending the war on terrorism.

The report in some ways captures Obama's internal conflicts. After Snowden began leaking information about secret programs, Obama initially seemed surprised that the public did not trust him to use them appropriately.

Over the weeks and months that followed, according to both public statements and advisers who have spoken with him privately, he seemed to pivot more toward the notion that trust had to be built into the system. The report, which he plans to take with him when he leaves Friday for vacation in Hawaii, represents "kind of who he would be if he were not in the position he was in," one adviser said.

"My sense is that on the one hand, the president's own personal instincts are reasonably civil libertarian in general and that in his heart of hearts he resonates with the call for more aggressive protection of privacy and individual liberty," said the adviser, who requested anonymity to discuss Obama's thinking. "On the other hand, my sense is that like every president, when he finds himself ultimately responsible for the safety of the nation, the stakes get raised in ways one can barely imagine."

Whether Obama will embrace the report seems uncertain. He has already rejected a recommendation to separate the leadership of the NSA and the U.S. Cyber Command. But after appointing the group and making its report public, Obama will be hard pressed not to adopt some of it.

"How does a president say, 'I disagree with my review group'?" asked Michael Allen, a former Bush aide and author of "Blinking Red," a new book on the creation of the intelligence architecture after the Sept. 11, 2001, attacks. "It needs to be seen at the very least as, 'I'm largely or in some nonsymbolic way taking most of what they're offering.'"

Allen, now managing director of Beacon Global Strategies, said such pressure may cause Obama to go too far and open the country up to more danger. "I fear they will say something like, 'We need to make a major course correction,'" he said.

Obama came into office having run against Bush's first term but inheriting his second. Before leaving office, Bush had already moderated his counterterrorism program in hopes that it would survive his presidency. He stopped waterboarding, emptied secret CIA prisons, transferred many prisoners at Guantanamo Bay, Cuba, and secured bipartisan legislation on detention, interrogation and surveillance.

So by the time he took over, Obama made further adjustments but kept much of the program intact and, when it came to drone strikes in places like Pakistan, even expanded it. Curbing the surveillance programs was not a high priority, according to advisers, since he had voted for legislation ratifying it.

"I think Obama in some ways is more authoritarian than Bush on these privacy issues," said Sen. Rand Paul of Kentucky, a Republican critic who said disclosures about NSA programs were far more alarming than he had ever anticipated.

White House officials reject such characterizations, but the momentum to revamp NSA rules comes at a time when Obama also faces other decisions on how much to shift course. Allies are pressing him to support the release of a comprehensive Senate report on the history of interrogations and torture. The president is also left to decide how much to scale back drone strikes as he signaled he planned to do in a speech this year.

Adm. Dennis C. Blair, Obama's first director of national intelligence, said the president should take a deeper look at national security policies beyond simply surveillance. "Appointing this commission on one small aspect of an important issue for American democracy is a typical small-ball play by this administration," he said. "When the administration asks for a debate, it doesn't really want it. What we need is a debate about what level of security we want traded off against what level of privacy we want to maintain."

Sen. John McCain, R-Ariz., said Obama has been too passive in explaining his rationale to the public.

"Most presidents would have now given a speech and said, 'OK, here's what the recommendations are; here's what I think we ought to do,'" McCain said. "Instead, it just came out. There's not a translation of facts and events to remedies that the president supports."

Jay Carney, the White House press secretary, said that Obama will do that in January after digesting the report. The review, Carney said, "reflects a view here that we can and should make changes that are consistent with our need to maintain security for the United States and the American people and our allies, to combat the threats that exist, but that allow for us to provide more assurance to the American people that there are safeguards against abuse and that there is oversight in place."

Where he will fall along that spectrum will be decided on the beaches of Oahu.


Peter Baker, New York Times

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