National Security

Rice, Power, and Hope

Did Obama just change Washington from the inside?

Five years ago when Barack Obama ran for president he promised the country a foreign policy that would "change the mindset" that launched the Iraq War.

Five years later, we might just finally be getting it.

With the announcement yesterday that he is selecting Susan Rice to be his national security advisor and is nominating Samantha Power to be the U.S. ambassador to the United Nations (a decision that comes on the heels of the selection of Chuck Hagel as secretary of defense and John Kerry as secretary of state), not only is the president putting a more personal stamp on his national security team, but he appears ready to become the foreign policy president that his 2008 campaign initially promised.

It's been a rocky path to this point. Obama's first-term foreign policy -- and in particular the team he selected to manage it -- didn't look much like what candidate Obama had discussed on the campaign trail. Although Obama had long pledged to devote more resources to the war in Afghanistan, the policy he settled upon was more reminiscent of the "dumb" wars he bemoaned in 2002, during the run-up to the invasion of Iraq. Liberals hoping for a change from the Bush years got a poorly devised and unrealistic counterinsurgency strategy based on flawed assumptions and championed by the same people who had enthusiastically supported the war in Iraq. Obama ramped up the drone war (as he had promised he would during the campaign), but he was far less solicitous of congressional and constitutional prerogatives or as transparent about his counterterrorism strategy as he had led his supporters to believe he would be.

His foreign policy team didn't suggest great change either. Obama had run for the Democratic nomination by challenging Hillary Clinton's support for the war in Iraq but then gave her the top job at Foggy Bottom. He continued the depressing Democratic practice of giving top national security positions to Republicans or members of the military by keeping Bob Gates at the Pentagon and making Marine Gen. Jim Jones his national security advisor -- a pick that seemed to be driven more by the stars on Jones's shoulders than the strategic ideas in his head. While there were significant and important advances in Obama's first term (the New START treaty, the Russian reset, a successful counterterrorism effort, withdrawal from Iraq), it was hard to discern a significant break from the foreign policies of the past. If anything, Obama's first-term foreign policy appeared both defensive and overly political.

While it's far too early to say that Obama's personnel moves augur noteworthy change, the signs so far are surprisingly hopeful -- even if many of the names are familiar.

What unites Rice, Power, Hagel, and Kerry is first and foremost their connection to the president. Both Rice and Power took a leap of faith in jumping aboard the upstart Illinois senator's presidential campaign in 2007, when few thought he had a chance of upending Clinton. They've been with him as long as any of his other foreign policy aides.

The relationship between Obama and Hagel goes back to their days in the Senate, and Kerry was integral to his political rise -- he asked Obama to deliver the keynote address at the 2004 Democratic National Convention, at which Kerry was nominated for president. There is also John Brennan, who recently became CIA director, and was one of Obama's closest national security advisors during his first term.

Beyond those personal links, there are important policy connections as well -- none more significant than Iraq. Hagel and Kerry both voted in support of the war while serving in the Senate, and they share political scars from that decision. Hagel turned against the war and his party's president, which made him persona non grata in the GOP (a fact on clear display during his contentious confirmation hearing earlier this year). Kerry's support for the war ironically helped him win the Democratic primary in 2004, but his inability to stake out a clear position for it or against it -- until the general election campaign -- became, in part, his political undoing. Rice and Power were both critics of the war, and Rice has said she saw in Obama's stance on Iraq a kindred soul who stood against the tide of the Democratic foreign policy elite (even though her own opposition was decidedly opaque).

What is perhaps most important is that all four have shown not just skepticism, but also nuanced thinking about the use of U.S. military force. The elevation of Rice and Power has led many to conclude that liberal interventionists now have greater influence within the White House. But the truth is far murkier. Rice, who was President Clinton's assistant secretary of state for African affairs during the Rwandan genocide has said she is haunted by the experience. And she was one of the key proponents of intervention in Libya. But, along with Power (and the president), she has been deeply skeptical about the efficacy of intervention in Syria. Power, who wrote a Pulitzer-winning book calling for greater response to genocide, has been dubbed the "the femme fatale of the humanitarian-assistance world." But her focus on preventing human rights atrocities has not equaled a call for military interventions in response. In 2003, for example, she bristled at just such suggestions, noting that ''if you think of foreign policy as a toolbox, there are a whole range of options -- you can convene allies, impose economic sanctions, expel ambassadors, jam hate radio,'' she said. ''There is always something you can do."

Kerry's contrarian views on the use of force of course date back to the Vietnam era, but even when voting in support of the use of force against Iraq in 2002, he did so with pronounced reservations and the argument that a yes vote from the Senate would further the larger goal of disarming Saddam Hussein. Hagel expressed similar concerns at the time. Since then, he has been a regular skeptic on the use of force and a critic of what he calls the "bloated" Pentagon budget.

In short, neither Obama nor the team he's assembled can be so easily buttonholed as realists or liberal interventionists or neo-cons. As Heather Hurlburt, head of the National Security Network (full disclosure: I serve on NSN's board) said to me, "They are all reality-based thinkers." In this regard, all four bear striking similarities to their boss, who used his Nobel Peace Prize as an opportunity to talk about the necessity of war.

A candidate who ran for president on a promise that he would not conform to "Washington groupthink" is truer to his word than one might initially realize. Second-term Obama seems disinclined to groupthink either of the Washington or non-Washington variety.

His recent speech at the National Defense University followed just such a pattern -- a professorial, introspective examination of the cross-cutting moral, legal, diplomatic, military, and security-related challenges that underpin the country's counterterrorism strategy. None of these issues offers easy answers, and Obama's words were a revealing insight into the difficult choices that policymakers face when it comes to national security (not surprisingly, it was a speech that made both liberals and conservatives unhappy). For a president who has been criticized for a lack of transparency, it was perhaps the most transparent moment of his tenure as a foreign policy president.

In a sense, this was the initial promise that Obama offered in 2008 -- not that he would approach national security with a singular and dogmatic worldview, but rather would do so with sophistication, nuance, and good judgment. Now he's surrounded himself with individuals who appear think in similar terms.

This isn't to say he will be successful or even that events won't force decisions upon him that he would prefer not to make. But so far Obama's second term foreign policy looks a bit more like the hopey-changey thing he promised in 2008.

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Why the NSA Needs Your Phone Calls…

… and why you (probably) shouldn't worry about it.

Suddenly, the national security establishment is drowning in data. On June 5, the Guardian released what appears to be a highly classified order issued by the Foreign Intelligence Surveillance Court, known as the FISA Court, to collect Verizon customers' phone records of calls made to or by Americans. On June 6, the Washington Post revealed the existence of PRISM, which allows the collection of Internet data on a massive scale. Does this mean the end of privacy, law, and the Constitution?

Nope. There are a lot of reasons to be cautious about rushing to the conclusion that these "scandals" signal a massive, lawless new intrusion into Americans' civil liberties. Despite this apparent breadth, and even if we assume that the leaked FISA order is genuine, there are a lot of reasons to be cautious about rushing to the conclusion that it signals a massive, lawless new intrusion into Americans' civil liberties.

Let's start with the order. It seems to come from the court established to oversee intelligence gathering that touches the United States. Right off the bat, that means that this is not some warrantless or extrastatutory surveillance program. The government had to convince up to a dozen life-tenured members of the federal judiciary that the order was lawful. You may not like the legal interpretation that produced this order, but you can't say it's lawless.

In fact, it's a near certainty that the legal theory behind orders of this sort has been carefully examined by all three branches of the government and by both political parties. As the Guardian story makes clear, Sen. Ron Wyden has been agitating for years about what he calls an interpretation of national security law that seems to go beyond anything the American people understand or would support. He could easily have been talking about orders like this. So it's highly likely that the law behind this order was carefully vetted by both intelligence committees, Democrat-led in the Senate and Republican-led in the House. (Indeed, today the leaders of both committees gave interviews defending the order.) And in the executive branch, any legal interpretations adopted by George W. Bush's administration would have been carefully scrubbed by President Barack Obama's Justice Department.

Ah, you say, but the scandal here isn't what has been done illegally -- it's what has been done legally. Even if it's lawful, how can the government justify spying on every American's phone calls?

It can't. No one has repealed the laws that prohibit the National Security Agency (NSA) from targeting Americans unless it has probable cause to believe that they are spies or terrorists. So under the law, the NSA remains prohibited from collecting information on Americans.

On top of that, national security law also requires that the government "minimize" its collection and use of information about Americans -- a requirement that has spawned elaborate rules that strictly limit what the agency can do with information it has already collected. Thus, one effect of "post-collection minimization" is that the NSA may find itself prohibited from looking at or using data that it has lawfully collected.

I would not be surprised to discover that minimization is the key to this peculiarly two-party, three-branch "scandal." That is, while the order calls for the collection of an enormous amount of data, much of it probably cannot actually be searched or used except under heavy restrictions. (If I'm right, the administration is likely to find itself forced quite quickly to start talking about minimization, perhaps in considerable detail.)

But why, you ask, would the government collect all these records, even subject to minimization, especially when Wyden was kicking up such a fuss about it? And, really, what's the justification for turning the data over to the government, no matter how strong the post-collection rules are?

To understand why that might seem necessary, consider this entirely hypothetical example. Imagine that the United States is intercepting al Qaeda communications in Yemen. Its leader there calls his weapons expert and says, "Our agent in the U.S. needs technical assistance constructing a weapon for an imminent operation. I've told him to use a throwaway cell phone to call you tomorrow at 11 a.m. on your throwaway phone. When you answer, he'll give you nothing other than the number of a second phone. You will buy another phone in the bazaar and call him back on the second number at 2 p.m."

Now, this is pretty good improvised tradecraft, and it would leave the government with no idea where or who the U.S.-based operative was or what phone numbers to monitor. It doesn't have probable cause to investigate any particular American. But it surely does have probable cause to investigate any American who makes a call to Yemen at 11 a.m., Sanaa time, hangs up after a few seconds, and then gets a call from a different Yemeni number three hours later. Finding that person, however, wouldn't be easy, because the government could only identify the suspect by his calling patterns, not by name.

So how would the NSA go about finding the one person in the United States whose calling pattern matched the terrorists' plan? Well, it could ask every carrier to develop the capability to store all calls and search them for patterns like this one. But that would be very expensive, and its effectiveness would really only be as good as the weakest, least cooperative carrier. And even then it wouldn't work without massive, real-time information sharing -- any reasonably intelligent U.S.-based terrorist would just buy his first throwaway phone from one carrier and his second phone from a different carrier.

The only way to make the system work, and the only way to identify and monitor the one American who was plotting with al Qaeda's operatives in Yemen, would be to pool all the carriers' data on U.S. calls to and from Yemen and to search it all together -- and for the costs to be borne by all of us, not by the carriers.

In short, the government would have to do it.

To repeat, this really is hypothetical; while I've had clearances both as the NSA's top lawyer and in the top policy job at the Department of Homeland Security, I have not been briefed on this program. (If I had, I wouldn't be writing about it.) But the example shows that it's not that hard to imagine circumstances in which the government needs to obtain massive amounts of information about Americans yet also needs to remain bound by the general rule that it may only monitors those whom it legitimately suspects of being terrorists or spies.

The technique that squares that circle is minimization. As long as the minimization rules require that all searches of the collected data must be justified in advance by probable cause, Americans are protected from arbitrary searches. In the standard law enforcement model that we're all familiar with, privacy is protected because the government doesn't get access to the information until it presents evidence to the court sufficient to identify the suspects. In the alternative model, the government gets possession of the data but is prohibited by the court and the minimization rules from searching it until it has enough evidence to identify terror suspects based on their patterns of behavior.

That's a real difference. Plenty of people will say that they don't trust the government with such a large amount of data -- that there's too much risk that it will break the rules -- even rules enforced by a two-party, three-branch system of checks and balances. When I first read the order, even I had a moment of chagrin and disbelief at its sweep.

But for those who don't like the alternative model, the real question is "compared to what"? Those who want to push the government back into the standard law enforcement approach of identifying terrorists only by name and not by conduct will have to explain how it will allow us to catch terrorists who use halfway decent tradecraft -- or why sticking with that model is so fundamentally important that we should do so even if it means more acts of terrorism at home.

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