Tech and civil liberties advocates are imploring the Obama administration to rein in the government’s massive surveillance apparatus before President-elect Donald Trump takes office, fearful he will carry out his campaign promises to register Muslims, spy on mosques and punish companies that offer Americans unbreakable encryption.
But many national security experts and former administration officials say the effort is almost certainly doomed to fail. “I don’t know how you tie the king’s hands in just the weeks going out,” said Michael McFaul, a former ambassador to Russia under President Barack Obama.
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And some civil libertarians blame Democrats for being too content to allow President Barack Obama to wield the sweeping, post-Sept. 11 surveillance powers he inherited from George W. Bush, rather than rolling them back so that no future president could use them.
“We shouldn’t be relying on the benevolence of the leaders put in power after an election to ensure that people’s privacy and civil liberties are protected,” said Neema Singh Guliani, a legislative counsel with the American Civil Liberties Union.
“You have a situation where the executive branch has control of a surveillance apparatus that is unparalleled in history,” said Trevor Timm, a surveillance critic and head of the activist group Freedom of the Press Foundation. “And because the Obama administration either retained the right to use a lot of these unprecedented powers, or expanded them, they are now in the hands of somebody who many people consider to be a madman.”
While Obama imposed some checks on executive spying powers, several of the major limits are presidential fiats that Trump could roll back unilaterally. Congress imposed other restrictions when it passed last year’s USA Freedom Act, but civil libertarians say that in practice the White House can escape some critical oversight.
That prospect is terrifying to people who fear Trump will follow through with some of his more radical promises, even if his team has wavered or backtracked on exactly what those pledges even mean. That alarm only heightened when Trump revealed that his choice for CIA director is Rep. Mike Pompeo (R-Kan.), a surveillance hawk that wants to undo recently imposed congressional constraints on digital snooping.
Hoping to head Trump off, civil liberties, digital rights and watchdog groups are pleading with Obama to take a series of actions to weaken the surveillance state. Those include releasing classified inspector general reports and the secret legal rationales behind the government’s spying efforts, which could help advocates challenge Trump in court. Some also urged Obama’s team to purge the NSA’s databases of some of the information they hoover up, wiping out reams of data that are focused on foreigners but incidentally drag in details on an unknown number of Americans.
Thirty advocacy groups banded together this week in a letter telling Obama to take action, writing: “No less than our shared legacy of a vibrant democratic government is at stake.”
Trump’s critics point to his apparent zeal for strongman tactics, noting that as a candidate he proclaimed that “torture works” and pledged to authorize tactics that are “a hell of a lot worse than waterboarding.” When asked about the alleged Russian hacking of the Democratic National Committee, Trump shot back: “Honestly, I wish I had that power. I’d love to have that power.”
Trump also called on people to boycott Apple after the company refused to help the FBI unlock an encrypted iPhone used by one of the suspects in last year’s terrorist-inspired mass shooting in San Bernardino, Calif.
“If President Trump is anything like candidate Trump, I think we all have something to be concerned about with these issues,” said Sen. Tom Carper of Delaware, the top Democrat on the Homeland Security and Governmental Affairs Committee. Still, Carper held out some hope that Trump will show a different attitude in the White House. “He’ll have an opportunity to show he’s grown and learned and approaches his role as president far differently than he did as a candidate.”
But many in the national security arena doubt that Trump will pull off such a 180-degree turn. In addition to tapping Pompeo, Trump has said his attorney general will be Sen. Jeff Sessions (R-Ala.), who has shown antipathy to tech companies like Apple that refuse help the government crack encrypted devices. And Trump’s presumptive national security adviser, retired Lt. Gen. Michael Flynn, has stirred controversy for calling Islam a “cancer” and insisting that fearing Muslims is “rational,” feeding fears that he may recommend steps like surveilling mosques.
Many intelligence specialists describe the digital spying barriers standing in the Trump administration’s way as flimsy at best.
“I don’t think [civil libertarians’] fears are overblown,” said Mieke Eoyang, a former Democratic congressional aide focused on defense and intelligence policy, who is now vice president for the national security program at the center-left think tank Third Way.
If Trump said, “Hey let’s take the gloves off,” added Eoyang, “there are very few people [in government] who can say … ‘This is a problem.’”
Trump supporters scoff at such hand-wringing. They argue that surveillance restrictions are at an all-time high following the enactment of the USA Freedom Act, which shuttered a bulk phone records collection program, restricted other types of collection and instituted new reporting requirements about the government’s requests for data from private companies.
“It’s the same old argument, just different bit players,” said House Intelligence Chairman Devin Nunes (R-Calif.), who was recently named to the Trump transition team’s 16-member “executive committee.”
“We have a new process in place,” Nunes said, citing the USA Freedom Act. “I think it’s working pretty well. It’s awfully bureaucratic.”
After the Sept. 11, 2001, terrorist attacks, the government adopted a slate of secret foreign intelligence collection programs that opened the door to the NSA’s warrantless spying on phone calls and emails between the United States and overseas, if one of the parties was thought to be linked to a terrorist group.
In Bush’s waning years, however, his administration agreed to ax the practice. Instead, it turned to a similar program overseen by a secret court that polices eavesdropping efforts allowed under the 1978 Foreign Intelligence Surveillance Act.
The Bush administration also received criticism for its use of “national security letters,” which allowed the government to gather “non-content” information from telecommunications and internet companies without a warrant. That information included telephone logs, but not actual conversations, and email histories without the bodies of the messages.
Obama came into office vowing to “revisit” many of these powers, but privacy advocates believe he has largely failed to do so. While the president has regularly spoken about the need for greater checks and public oversight of the system, he has defended the powers themselves.
“This may go down in history as President Obama’s most consequential mistake,” Timm said.
In a 2014 speech announcing a slate of changes to spying powers, Obama said he entered the Oval Office with “a healthy skepticism toward our surveillance program.”
A subsequent investigation, Obama said, led to “increased oversight and auditing.”
But “what I did not do is stop these programs wholesale — not only because I felt that they made us more secure, but also because nothing in that initial review, and nothing that I have learned since, indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens,” Obama said.
Two days after Trump won the White House, exiled NSA leaker Edward Snowden said the Obama administration may come to regret those words.
“Because our last presidential administration had been saying that these powers were so valuable and so necessary and didn’t hurt anybody, now suddenly they can’t criticize other governments for doing the same thing,” he said in a livestreamed question-and-answer session.
The executive edict publicly laid out the intelligence community’s procedures for collecting and safeguarding personal information, which legal scholars said was a virtually unparalleled move among countries around the world. The administration also drew up new transparency measures for the use of national security letters, and intelligence agencies introduced privacy protections for data collected under some of the more controversial programs Snowden had exposed.
But Trump could sweep away these measures rather effortlessly, given that they were not enshrined in law.
The administration also stumped for the more permanent changes in the USA Freedom Act, which even privacy advocates lauded as an important first step to reining in the country’s digital snooping.
But privacy activists also believed that lawmakers — particularly those on the left — may have held back from pushing more aggressive restrictions post-Snowden, “because they implicitly trusted President Obama to make the right decision,” Timm said.
Not all civil liberties advocates believe that, however, noting that Capitol Hill’s surveillance-limits coalition tends to bring together left-leaning Democrats and libertarian Republicans.
“Democrats certainly bear at least some of the responsibility, but … there’s really a broader institutional failure here that I fear is going to be exposed in the context of a president who takes actions less consistent with the wishes of mainstream members of Congress,” said Steve Vladeck, a national security-focused law professor at the University of Texas School of Law.
Regardless, reformers may have missed their moment. All agree that the road to reform is considerably steeper after the horrific terror attacks during the past year in Paris, Nice, Brussels, Istanbul, Orlando and San Bernardino collectively left more than 300 people dead.
The incidents — which the Islamic State apparently either helped plan or inspire — led to calls from congressional hawks to delay or reverse the USA Freedom Act’s restrictions. It also sparked an ongoing legislative push to bar companies from using encryption that locks out law enforcement.
The attacks will also loom large over an upcoming fight over the renewal of critical digital surveillance powers used to collect data on non-U.S. citizens believed to be outside the country. The legislative provision authorizing those programs — including the so-called PRISM program that collects digital activity history from major internet companies — expires at the end of 2017, forcing Congress to act or lose the powers.
“Meaningful reforms are going to be a struggle in the next few years,” Vladeck said.
In fact, the government’s powers may only grow.
“What you might see,” said Jamil Jaffer, director of the Homeland and National Security Law Program at George Mason University’s Antonin Scalia Law School, is “the increase or strengthen[ing] of authorities, perhaps with more congressional or other oversight of them.”
This likelihood is worrisome to those nervous that Trump will be able to focus the government’s powerful digital eye where he pleases.
“The surveillance apparatus is going to be turned disproportionately against Muslims,” said Nate Cardozo, a senior staff attorney with the Electronic Frontier Foundation, a digital rights advocate. “It’s going to be turned disproportionately against people of color of all kinds, against immigrants.”
Critics point to an executive order from 1981 that guides much of the government’s foreign intelligence gathering. Even regular surveillance defenders, such as Senate Intelligence Committee ranking member Dianne Feinstein (D-Calif.), have expressed concern about the lack of checks on spying done under the directive, known as Executive Order 12333.
In 2013, Feinstein said her committee could not “sufficiently” oversee 12333 activities. “Twelve-triple-three programs are under the executive branch entirely,” she told McClatchy newspapers. “I don’t think privacy protections are built into it. It’s an executive policy. The executive controls intelligence in the country.”
Critics say little has changed.
“There’s no controls, there’s no transparency, so there’s no way of ever really knowing whether something has been abused,” said Faiza Patel, co-director of the Liberty and National Security Program at the Brennan Center for Justice. “In essence, you’re left with a ‘trust me, we’re doing this to catch the bad guys, not to spy on you’ system.”
Trump allies and a strong cohort of national security lawmakers on Capitol Hill strongly reject these assertions.
“The most amount of time we spend is oversight over surveillance,” Nunes said of the Intelligence Committee he chairs.
“As long as the legislative branch is doing their job, and now there’s all of these different requirements at each one of the agencies,” Nunes added. “Those can’t change by a president.”
Eric Geller, Martin Matishak and Tim Starks contributed to this report.