Obama’s record on surveillance is a black mark against his legacy

Barack Obama’s approach to surveillance is now regarded as one of the primary issues facing campaigners for civil liberties.

John Stephenson is a politics student at Lancaster University

In what is likely to become a self-fulfilling prophecy, the German chancellor Angela Merkel last week claimed that the spying of American intelligence agencies on US allies will make the world a “less secure place”.

But the revelations, which were leaked by Edward Snowden last year, suggest that it could be the failure of the world’s foremost power to keep up with the development of the internet that has brought about such a rift.

This failure, alongside Obama’s approach to surveillance, is now regarded as one of the primary issues facing campaigners for civil liberties.

Indeed, the hypocrisy of Obama’s approach to surveillance is widely noted – prior to his election he lambasted the Bush administration for “taking shortcuts” and targeting innocents with surveillance, yet US data requests to google almost doubled between 2009 and 2011.

But perhaps the targeting of Obama individually is unfair and it is US law that is in need of re-assessment. After all, the NSA’s collection of meta-data from US telephone calls has been ruled as legal by federal judge William Pauley and it is understandable that the President, facing an approval rating of just 43 per cent, might wish to rouse support by thwarting potential acts of terrorism.

However, there are a few problems with this. For one, those targeted are not adversaries but allies and German-US diplomacy is key to maintaining relations between Europe and America. Secondly, we just cannot afford to overlook Obama’s failure to act within the domain of surveillance.

Since taking office he has not attempted to overturn any of the powers wielded by the former government and telecommunication firms which comply with spying still remain completely immune to legal action. Perhaps more telling is the fact that when Pauley made his ruling he denied a preliminary injunction to the American Civil Liberties Union, despite Obama’s pledge to improve the Privacy and Civil Liberties Board.

It appears then that Obama is guilty of empty promises and supposing the electorate will forget his previous positions on surveillance. But still, this is the nature of job – Clinton lied about Lewinsky, Bush Snr went back on tax promises, Nixon denied Watergate. The list goes on.

Yet in light of Merkel’s claims he has made some ground, claiming that “the technology has just moved so quickly that discussions that needed to be had didn’t happen fast enough”.

This is promising in that it points to possible reform and Obama continues to hint at the possibility of “change” within surveillance. These are desperately needed – in spite of Pauley’s ruling, US surveillance policy has been ruled “unconstitutional” by another federal court and academic opinion is quickly changing.

What’s more, the last reform that stood to be of any use was the Electronic Communications Privacy Act (ECPA) which was way back in 1986.

In all likelihood, however, any reforms that the administration sees through will simply change the “cosmetics” of US surveillance policy.

For instance though Obama has asked the Director of National Intelligence, James Clapper, to formulate “safeguards” for foreign citizens, these will only restrict the length of time intelligence agencies can retain information and will not put a stop to the spying itself.

The problem lies in the precedent set by poor executive behaviour and this has by no means stopped under Obama; drone strikes have quadrupled, Guantanamo Bay is still open and US rendition policy still sees suspects sent away to face torture on foreign soil.

Yet real change could come from constitutional reform that is adapted to the rapidly expanding domain of communication technology. Much of the current debate relates to whether the Fourth Amendment applies to foreign nationals, but this kind of discourse just takes place in a vacuum.

Regardless of whether the Amendment applies, the International Covenant on Civil and Political Rights clearly states that citizens are protected from “arbitrary of unlawful interference” and any argument from the US just flies in the face of Obama’s claim that “all persons” are due respect.

In an ideal world, the US would formulate a policy whereby government surveillance is opt-in. In other words, if measures have not been legally sanctioned then they cannot be utilised by federal agencies. As of yet, however, Obama’s record on surveillance will only leave a black mark on any legacy he hopes to attain.

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