Stopping Turnkey Tyranny: What The Obama Administration Can Do About The NSA On The Way Out

Last week, I was a little unfair to our friends over at Fight for the Future in noting that it was too late for President Obama to "dismantle the NSA" as was suggested in a Time article written by FftF's awesome campaign director Evan Greer. I was focusing on why the President should have limited the NSA much more seriously earlier on (like way earlier...), but some interpreted it to mean that I was suggesting that FftF had only just jumped on the bandwagon to stop mass surveillance. That's clearly not true -- as it's been one of the leading voices in the fight to get the President to scale back mass surveillance since the group took on that issue many years ago.

My point was really just that waiting until now really limited Obama's options greatly. Even if he wanted to limit what a President Trump could do with the NSA, there's not much he can do that President Trump couldn't immediately roll back. That might be different if Obama had done a full scale surveillance reform program years ago, including much more comprehensive legislation than the USA Freedom Act.

But just because there isn't much he can do, that doesn't mean there's nothing he can do. Timothy Edgar, who served in both the Obama and George W. Bush administrations handing civil liberties/privacy issues related to the intelligence community (he was Obama's director of privacy and civil liberties for the White House's national security staff), has written a very interesting article laying out a number of things that the President can do on his way out the door that certainly won't stop the possibility (or even likelihood) of abuse of surveillance powers, but could at least make it somewhat more difficult.

Edgar picks up on a point that Ed Snowden made early on, that we've built a system that will enable "turnkey tyranny" in the wrong hands:

we delude ourselves if we think they have made the NSA tyrant-proof. In Snowden's first interview from Hong Kong, warned against "turnkey tyranny." One day, he said, "a new leader will be elected" and "they'll find the switch." With Donald Trump's election, it is important that this warning not be proved prophetic. While the United States has a robust system of intelligence oversight-the strongest in the world-it still largely depends on the good faith of Executive Branch officials.

Edgar then goes through the things that Obama can do, but notes that they "require immediate action" if they're to have any impact at all. Some of them may seem like they're unlikely to have much of an impact -- such as reaffirming to the intelligence community their oath to the Constitution, and that what they do is supposed to be above politics, or even appointing new staff (which Trump could replace, but might not given the rumored staffing troubles he's been having) -- but could actually set a tone that at least acts as a minor buffer. Some of the other suggestions, though, could be more effective: committing to real transparency including declassifying a lot more information about surveillance programs, helping the Privacy and Civil Liberties Oversight Board finally get out its long awaited report on Executive Order 12333 and dropping the various attempts to use bogus "states secrets" defenses to various legal challenges to surveillance programs. All of those could be really useful.

Edgar also recommends pardoning Snowden, commuting Chelsea Manning's sentence and dropping or wrapping up whatever other leak investigation and excessive Espionage Act cases the DOJ has going. They won't necessarily stop a President Trump from using the same tools against other people, but it will take away gift wrapped cases that could set awful precedents in using the Espionage Act go go after public interest whistleblowers and reporters.

Edgar concludes by pointing out that if Obama believes in his own oaths to "preserve, protect and defend" the Constitution -- which are obviously still in effect -- he should do whatever possible to make sure that the next administration cannot completely ignore the Constitution, as many fear (and as Trump has suggested he'd like to do concerning the 4th Amendment and surveillance).

Obama has twice sworn an oath to "preserve, protect and defend" the Constitution. Normally, this means making it possible for the new president to fulfill his promises, even if you disagree with them. Given Trump's autocratic tendencies, Obama's oath entails a countervailing obligation. Obama's last challenge is to do everything in his power to thwart Trump's promises to abuse our constitutional liberties.

Again, these are all fairly limited moves, but they're what's left that can be done. Given how little Obama did in the almost eight years he's had, I won't hold my breath that he'll do any of these things, but lots of us will be watching closely, hoping that we're wrong about what we expect to happen.

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