12/12/2013 03:30 pm ET Updated Feb 11, 2014

Obama's Decision Point

Ryan Lizza has written a very useful history of the legal and political debate around NSA surveillance over the last 10 years. One of the most dramatic moments comes just after Obama is inaugurated, when he is read into the intelligence community's disastrously poor record of complying with Foreign Intelligence Surveillance Court rulings -- in this case the widespread misuse of the bulk phone records database.

Obama's briefer is Matthew Olsen, now director of the National Counterterrorism Center, who serves as something of a Zelig-like character in the narrative, popping in to clean up the NSA's messes as necessary. It is, as Wyden told Lizza, "a very, very significant moment in the debate," the point at which the president might have used skeptical court rulings as a natural excuse to end the collection of every American's phone records.

Obama doesn't.

In February of 2009, days after Obama was sworn in, Olsen and Benjamin Powell, a Bush holdover and the general counsel for the Office of the Director of National Intelligence, went to the White House to brief the new President and Eric Holder, the new Attorney General, on the N.S.A.'s programs. There was no way to know how Obama would react. During the campaign, Holder, who was serving as a top legal adviser to Obama, had said that Bush's original surveillance program operated in "direct defiance of federal law." Obama had sponsored the legislation curbing the authority of the business-records provision, which was now crucial to the N.S.A. Greg Craig, Obama's White House counsel, was also at the meeting. Because Obama had not been a member of the Intelligence Committee, much of the information was new to him. Powell, who led the briefing, and Olsen also had some news: the fisa court had just ruled that the phone-records program had so many compliance issues that the court was threatening to shut it down. The court was waiting for a response from the new Administration about how to proceed.


On February 17th, about two weeks after the White House briefing, Olsen, in a secret court filing, made the new Administration's first official statement about Bush's phone-metadata program: "The government respectfully submits that the Court should not rescind or modify the authority."


It was the first in a series of decisions by Obama to institutionalize some of the most controversial national-security policies of the Bush Administration. Faced with a long list of policies to roll back--torture, the wars in Afghanistan and Iraq, the use of the prison at Guantánamo Bay to hold suspected terrorists--reining in the N.S.A.'s surveillance programs might have seemed like a low priority. As core members of Al Qaeda were killed, the danger shifted to terrorists who were less organized and more difficult to detect, making the use of the N.S.A.'s powerful surveillance tools even more seductive. "That's why the N.S.A. tools remain crucial," Olsen told me. "Because the threat is evolving and becoming more diverse."

For me the piece left lingering the question of how big a role John Brennan played in Obama's NSA evolution. Brennan goes unmentioned, but during 2008, when he served as a counterterrorism adviser to the Obama campaign, he was months ahead of the candidate's reversal on retroactively immunizing the telecom companies for collaborating with Bush's warrantless wiretapping program.

Perhaps the high priest of drones also blessed the NSA.