WASHINGTON — President Obama
will issue new guidelines on Friday to
curtail government surveillance, but
will not embrace the most far-
reaching proposals of his own
advisers and will ask Congress to help
decide some of the toughest issues,
according to people briefed on his
thinking.
Mr. Obama plans to increase limits
on access to bulk telephone data, call
for privacy safeguards for foreigners
and propose the creation of a public
advocate to represent privacy
concerns at a secret intelligence
court. But he will not endorse leaving
bulk data in the custody of
telecommunications firms, nor will
he require court permission for all
so-called national security letters
seeking business records.
The emerging approach, described
by current and former government
officials who insisted on anonymity in
advance of Mr. Obama’s widely
anticipated speech, suggested a
president trying to straddle a
difficult line in hopes of placating
foreign leaders and advocates of civil
liberties without a backlash from
national security agencies. The result
seems to be a speech that leaves in
place many current programs, but
embraces the spirit of reform and
keeps the door open to changes later.
The decision to provide additional
privacy protections for non-American
citizens or residents, for instance,
largely codifies existing practices but
will be followed by a 180-day study
by the director of national
intelligence about whether to go
further. Likewise, instead of taking
the storage of bulk data out of
government hands, as recommended
by a review panel he appointed, Mr.
Obama will leave it in place for now
and ask lawmakers to weigh in.
The blend of decisions, to be outlined
in a speech at the Justice Department
and in a presidential guidelines
memorandum, will be Mr. Obama’s
highest-profile response to the
disclosures about the National
Security Agency made in recent
months by Edward J. Snowden, a
former N.S.A. contractor who has
fled to Russia.
But as intelligence officials have
sorted through Mr. Obama’s evolving
position, they have been divided
about how significant his adjustments
will be.
Some officials complained that the
changes will add layers of
cumbersome procedure that will
hinder the hunt for potential
terrorists, while others expressed
relief that Mr. Obama is not going
further and confidence that they
could still work within the new
guidelines without sacrificing much.
“Is it cosmetic or is there a real
thumb on the scale in a different
direction?” asked one former
government official who worked on
intelligence issues. “That’s the
question.”
The White House said the president’s
review is incomplete and would not
comment further Tuesday.
The developments came as the
nation’s judiciary waded into the
highly charged debate. In a letter
made public on Tuesday, a judge
designated by Chief Justice John G.
Roberts Jr. to express the views of the
judicial branch warned that some
changes under consideration would
have a negative “operational impact”
on a secret foreign intelligence court.
Judge John D. Bates, a former chief
judge of the Foreign Intelligence
Surveillance Court, urged Mr. Obama
and Congress not to alter the way the
court is appointed or to create an
independent public advocate to argue
against the Justice Department in
secret proceedings. Any such
advocate, he wrote, should instead be
appointed only when the court
decided one was needed.
Judge Bates objected to the workload
of requiring that courts approve all
national security letters, which are
administrative subpoenas allowing
the F.B.I. to obtain records about
communications and financial
transactions without court approval.
And he raised concerns about greater
public disclosure of court rulings,
arguing that unclassified summaries
would be “likely to promote
confusion and misunderstanding.”
The judge’s letter , versions of which
he sent to the leaders of several
congressional committees, was
released as all five members of Mr.
Obama’s surveillance review group
testified Tuesday before the Senate
Judiciary Committee, seeking support
for their recommendations.
Illustrating the cross-pressures on
the president, the advisers argued for
the appointment of the independent
version of a public advocate, a
recommendation the president is
expected to follow, though it is not
clear how he will structure the
position.
“We admire Judge Bates and respect
his views,” said Cass R. Sunstein, of
Harvard Law School and a former
Obama White House official who
served on the review panel. “We
respectfully disagree with that one,
on the ground that the judge
sometimes is not in the ideal position
to know whether a particular view
needs representation and that in our
tradition, standardly, the judge
doesn’t decide whether one or
another view gets a lawyer.”
The judge’s objection to the proposal
on national security letters
dovetailed with that of the F.B.I.
director, James B. Comey, who
argued it would be inefficient to have
to go to a judge each time records
were sought. Mr. Obama has decided
not to require court approval in
every case, but might still require it
in some circumstances, according to
one administration official.
Mr. Obama will cut back on the
number of people whose phone
records can be examined by the
N.S.A. through its bulk data program.
Currently the agency can scrutinize
call records of people as far as three
steps, or “hops,” removed from a
suspect. Mr. Obama’s review panel
proposed limiting searches to people
just two steps removed. He is also
likely to cut down the number of
years such data can be retained;
currently it is deleted after five
years.
But the president will not, at least for
now, back the panel’s suggestion that
telecommunications firms keep such
data and that the government be
allowed to tap into those databases
only when necessary.
Intelligence officials complained it
would be inefficient to have to go to
multiple companies, so some officials
proposed creating an independent
consortium to store the data instead.
Mr. Obama has decided against
keeping the data at the private
providers because they do not want
that responsibility, officials said, and
no independent consortium currently
exists. As a result, he will ask
Congress to work with him to
determine the best way to store the
data.
He also appears likely to reject the
idea of separating code breakers and
code makers. Some critics of the
N.S.A. were disturbed that the
agency’s encryption team charged
with bolstering online security
systems against hackers was working
with the team that tries to penetrate
computer systems used by terrorists.
The letter by Judge Bates was
accompanied by 15 pages of often
specific comments about possible
surveillance reforms.
It is highly unusual for judges to
weigh in on public policy debates
involving the other two branches of
government, but Judge Bates, the
director of the Administrative Office
of the United States Court, said that
Chief Justice Roberts had designated
him to “act as a liaison” and that he
had consulted other judges.
The judge emphasized that his
comments were meant to address
smooth operation of the court and
were “not intended as expressions of
support or opposition to particular
introduced bills.”
Still, his comments went beyond
workload issues. He objected to a
proposal by Mr. Obama’s review
group to take away Chief Justice
Roberts’s sole power to appoint the
11 judges of the surveillance court
and have them picked instead by the
chief judges of the appeals courts.
Ten of the 11 current judges were
appointed by Republican presidents,
and critics have called for more
diversity. “The chief justice is
uniquely positioned to select qualified
judges,” Judge Bates argued.NYtime
will issue new guidelines on Friday to
curtail government surveillance, but
will not embrace the most far-
reaching proposals of his own
advisers and will ask Congress to help
decide some of the toughest issues,
according to people briefed on his
thinking.
Mr. Obama plans to increase limits
on access to bulk telephone data, call
for privacy safeguards for foreigners
and propose the creation of a public
advocate to represent privacy
concerns at a secret intelligence
court. But he will not endorse leaving
bulk data in the custody of
telecommunications firms, nor will
he require court permission for all
so-called national security letters
seeking business records.
The emerging approach, described
by current and former government
officials who insisted on anonymity in
advance of Mr. Obama’s widely
anticipated speech, suggested a
president trying to straddle a
difficult line in hopes of placating
foreign leaders and advocates of civil
liberties without a backlash from
national security agencies. The result
seems to be a speech that leaves in
place many current programs, but
embraces the spirit of reform and
keeps the door open to changes later.
The decision to provide additional
privacy protections for non-American
citizens or residents, for instance,
largely codifies existing practices but
will be followed by a 180-day study
by the director of national
intelligence about whether to go
further. Likewise, instead of taking
the storage of bulk data out of
government hands, as recommended
by a review panel he appointed, Mr.
Obama will leave it in place for now
and ask lawmakers to weigh in.
The blend of decisions, to be outlined
in a speech at the Justice Department
and in a presidential guidelines
memorandum, will be Mr. Obama’s
highest-profile response to the
disclosures about the National
Security Agency made in recent
months by Edward J. Snowden, a
former N.S.A. contractor who has
fled to Russia.
But as intelligence officials have
sorted through Mr. Obama’s evolving
position, they have been divided
about how significant his adjustments
will be.
Some officials complained that the
changes will add layers of
cumbersome procedure that will
hinder the hunt for potential
terrorists, while others expressed
relief that Mr. Obama is not going
further and confidence that they
could still work within the new
guidelines without sacrificing much.
“Is it cosmetic or is there a real
thumb on the scale in a different
direction?” asked one former
government official who worked on
intelligence issues. “That’s the
question.”
The White House said the president’s
review is incomplete and would not
comment further Tuesday.
The developments came as the
nation’s judiciary waded into the
highly charged debate. In a letter
made public on Tuesday, a judge
designated by Chief Justice John G.
Roberts Jr. to express the views of the
judicial branch warned that some
changes under consideration would
have a negative “operational impact”
on a secret foreign intelligence court.
Judge John D. Bates, a former chief
judge of the Foreign Intelligence
Surveillance Court, urged Mr. Obama
and Congress not to alter the way the
court is appointed or to create an
independent public advocate to argue
against the Justice Department in
secret proceedings. Any such
advocate, he wrote, should instead be
appointed only when the court
decided one was needed.
Judge Bates objected to the workload
of requiring that courts approve all
national security letters, which are
administrative subpoenas allowing
the F.B.I. to obtain records about
communications and financial
transactions without court approval.
And he raised concerns about greater
public disclosure of court rulings,
arguing that unclassified summaries
would be “likely to promote
confusion and misunderstanding.”
The judge’s letter , versions of which
he sent to the leaders of several
congressional committees, was
released as all five members of Mr.
Obama’s surveillance review group
testified Tuesday before the Senate
Judiciary Committee, seeking support
for their recommendations.
Illustrating the cross-pressures on
the president, the advisers argued for
the appointment of the independent
version of a public advocate, a
recommendation the president is
expected to follow, though it is not
clear how he will structure the
position.
“We admire Judge Bates and respect
his views,” said Cass R. Sunstein, of
Harvard Law School and a former
Obama White House official who
served on the review panel. “We
respectfully disagree with that one,
on the ground that the judge
sometimes is not in the ideal position
to know whether a particular view
needs representation and that in our
tradition, standardly, the judge
doesn’t decide whether one or
another view gets a lawyer.”
The judge’s objection to the proposal
on national security letters
dovetailed with that of the F.B.I.
director, James B. Comey, who
argued it would be inefficient to have
to go to a judge each time records
were sought. Mr. Obama has decided
not to require court approval in
every case, but might still require it
in some circumstances, according to
one administration official.
Mr. Obama will cut back on the
number of people whose phone
records can be examined by the
N.S.A. through its bulk data program.
Currently the agency can scrutinize
call records of people as far as three
steps, or “hops,” removed from a
suspect. Mr. Obama’s review panel
proposed limiting searches to people
just two steps removed. He is also
likely to cut down the number of
years such data can be retained;
currently it is deleted after five
years.
But the president will not, at least for
now, back the panel’s suggestion that
telecommunications firms keep such
data and that the government be
allowed to tap into those databases
only when necessary.
Intelligence officials complained it
would be inefficient to have to go to
multiple companies, so some officials
proposed creating an independent
consortium to store the data instead.
Mr. Obama has decided against
keeping the data at the private
providers because they do not want
that responsibility, officials said, and
no independent consortium currently
exists. As a result, he will ask
Congress to work with him to
determine the best way to store the
data.
He also appears likely to reject the
idea of separating code breakers and
code makers. Some critics of the
N.S.A. were disturbed that the
agency’s encryption team charged
with bolstering online security
systems against hackers was working
with the team that tries to penetrate
computer systems used by terrorists.
The letter by Judge Bates was
accompanied by 15 pages of often
specific comments about possible
surveillance reforms.
It is highly unusual for judges to
weigh in on public policy debates
involving the other two branches of
government, but Judge Bates, the
director of the Administrative Office
of the United States Court, said that
Chief Justice Roberts had designated
him to “act as a liaison” and that he
had consulted other judges.
The judge emphasized that his
comments were meant to address
smooth operation of the court and
were “not intended as expressions of
support or opposition to particular
introduced bills.”
Still, his comments went beyond
workload issues. He objected to a
proposal by Mr. Obama’s review
group to take away Chief Justice
Roberts’s sole power to appoint the
11 judges of the surveillance court
and have them picked instead by the
chief judges of the appeals courts.
Ten of the 11 current judges were
appointed by Republican presidents,
and critics have called for more
diversity. “The chief justice is
uniquely positioned to select qualified
judges,” Judge Bates argued.NYtime
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