NSA Surveillance Program: Obama Can't Stop What Bush and Congress Started

Last week the debate about whether President Obama is worse at protecting civil liberties than President Bush grew more heated. The Obama administration has prosecuted more sources of unauthorized disclosures of classified information than any prior administration, continued the National Security Agency surveillance program, and has ordered the execution of an American citizen by a drone strike without legal due process. But before you judge whether President Obama and his administration is better or worse at protecting civil liberties than prior administrations we need to understand the scope of the president's power to control elements of the federal government and change the policies of federal agencies. The management of the federal government is a task managed by numerous individuals, not just the president. The White House's ability to bring about meaningful reform is directly related to the president's ability to manage such a bureaucracy.

The U.S. federal government is a bureaucracy of epic proportions. The Office of Personnel Management (OPM) does not keep records of the number of contractors (which in itself shows a true lack of accountability and government oversight). Nevertheless, Professor Paul Light of New York University compiled useful estimates using the federal government’s procurement database. When he added up all the numbers, he found that the true size of the federal government in 2005 was about 14.6 million people: 1.9 million civil servants, 770,000 postal workers, 1.44 million military personnel, 7.6 million contractors, and 2.9 million grantees. Then you have about 6,000 political appointees, or “the administration.” Political appointees take the top management and policy jobs throughout the government, and they hold significant influence over the policies and operations of departments and agencies. Yet the policies and procedures of these agencies are restricted by federal statutes that constrain political appointees' power to institute meaningful reform unless new rules are legislated from Congress.

A new president takes over an establishment of over 14 million people. Many civil servants have had careers in government spanning decades and administrations from both parties. Executive orders provide the president the ability to reform policies and procedures of federal agencies where these orders do not conflict with federal statutes or the Constitution. Contrary to the assertion of former presidential hopeful Governor Mitt Romney, he would not have been able to overturn the Affordable Care Act with a simple executive order.

President Obama is not simply able to stop the operation of congressionally legislated and funded programs hat conduct warrantless wiretapping under the PATRIOT Act. And in a move out of step with his liberal constitutional-scholar background, he has actually overseen the expansion of government acts that violate civil liberties by authorizing a drone strike on an American citizen without a modicum of due process. The attorney general claims that executive due process was applied in the decision, but due process by any legitimate legal definition includes the right to notice and the opportunity to be heard underscored by the principle of “innocent until proven guilty.” Anwar Al-Awlaki, no matter how deplorable his actions, was an American citizen with the right to notice and the opportunity to be heard in court before his government ordered his execution. Reports indicate that in 2006 he was arrested in Yemen and detained until December 2007, giving doubt to the claim that he could not have been captured and detained. President Obama has publicly asked Congress to reduce the ability of a future president to conduct such strikes by repealing the Authorization for Use of Military Force (AUMF), but that still does not negate the previous violation of due process by drone execution.

According to recent reports, the NSA surveillance program has stopped terrorist plots in 20 nations. The program arguably has significant security benefits that may outweigh concerns about personal privacy for some people. The program has been authorized and re-authorized by the Congress and the president numerous times, but it is the continuation of a program established under the Bush administration with congressional approval. President Obama would require significantly more political leverage to ask the intelligence community to not operate it.

A president can only make meaningful reform to the protections of civil liberties where he has the buy-in of Congress. President Bush initiated the NSA surveillance program with the consent of Congress, but tried to pass a guest-worker immigration legislation and was stonewalled. President Obama has supported constitutional challenges to the Defense of Marriage Act thereby supporting fundamental rights for couples in same-sex marriages, and he may sign into law legislation that increases protections of civil liberties for undocumented immigrants. Both presidents tried to protect civil liberties and national security in a way they thought was balanced. But these agency programs are largely governed by policies established by congressional legislation.

In addition, President Obama's administration has prosecuted six federal employees for leaking classified information. The argument that these prosecutions undermine civil liberties is at odds with the current judicial interpretation of federal law. Federal employees are criminally liable for the unauthorized disclosure of classified information. Whistleblowers are those who report waste, fraud, and abuse; not programs that they believe violate Americans' civil liberties. Some transparency advocates believe that the leak of the PRISM program is reporting abuse. Despite this argument the program has congressional authorization so it will be hard for Edward Snowden to argue that he thought the NSA program constituted abuse by the intelligence community. Edward Snowden, like the other leakers, should be prosecuted for his unauthorized disclosure of classified information. Journalists, however, are protected under the First Amendment, and claims that Glenn Greenwald should be prosecuted are out of line with our protections for free speech and the press. The American public shouldn't ignore the information about violations of civil liberties just because it was from an unauthorized leak. The fact that so many leaks occur is indicative of a bloated bureaucracy with an over-classification problem.

President Obama's record on the protection of civil liberties is therefore not simply better or worse than that of previous administrations.The president and Congress are making substantial progress in protecting civil liberties of minority groups. But terrorist threats have emboldened Congress and both President Bush and Obama to take significant steps towards implementing policies that violate due process rights and infringe on personal privacy in the name of national security, without providing any significant transparency.