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Saturday, January 18, 2014

Controlling the Narrative on Surveillance and Executive Power

At Politico, Jonathan Hafetz has a column entitled "Is Obama Failing Constitutional Law?" There, Hafetz discusses President Obama's recent speech where Obama proposed changes to the NSA's surveillance programs. Hafetz writes:

As an act of political positioning, the speech might help Obama in the public relations moment, but it’s unclear if the former constitutional law professor has actually promised enough to put his administration and the government on the right side of the Constitution.

Hafetz does not provide very much constitutional analysis of the NSA's surveillance programs and Obama's proposed changes beyond noting that some of the reforms may help bolster the administration's claims that the program is consistent with the Fourth Amendment, but that many questions still remain.

One point Hafetz makes that I find particularly interesting, however, appears near the end of his column. After noting Obama's history of addressing major concerns with notable speeches, Hafetz argues that Obama may not be able to take that same approach to the NSA surveillance issue. Hafetz writes:

Perhaps most strikingly, the administration is more powerless to shape the narrative on this issue than on other counterterrorism matters. More Snowden revelations are said to be imminent. The courts and lawmakers are being pressed to respond in their own way. Unlike, with say drones, the contours of the story will evolve beyond the president’s reach.
The specter of future Snowden revelations makes public relations a very difficult task for the President. But there may be ways for the government to deal with surveillance concerns before they come to light in an uncontrolled medium. About a week ago, Robert Chesney had a very interesting post on Lawfare where he discussed this strategy in the context of the government's revelation that it had stationed several military advisors in Somalia. Pointing out that the government released the information itself, which could have been fairly damaging if released in a different context, Chesney notes:

All of which makes me wonder whether the administration might be spending much time these days trying to determine which details of this kind might as well be revealed by it, on its own terms, rather than await the next unexpected headline. They certainly ought to be doing that, both because it is simply a smart move in the context of their ongoing public affairs problems flowing from Snowden, and because it is always worth giving serious attention to whether such details can in fact be brought into public light.
I agree with Chesney that it will be interesting to see if the government becomes more active in releasing information about potentially controversial programs. While the threat of further leaks may mean that the President lacks control over what information will be released, the President may retain some power over how that information is released.

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