Ben Rhodes

Ben Rhodes is President Obama's deputy national security adviser for strategic communications and speechwriting. Here, he discusses the president's review of "the program" and the White House reaction to the Snowden leaks. Rhodes spoke to FRONTLINE's Jim Gilmore on Feb. 21, 2014.

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   When the president takes office, the date is February 2009, and [National Counterterrorism Center Director] Matt Olsen and Ben Powell come to brief the president and his team on the NSA program. Are you there for that? If so, describe what that's like. Describe as much as you can about what the program is. Any surprises? This is the beginning of the Obama team's taking over, inheriting the program.

   Well, I wasn't present at that particular meeting, ... but what I do remember is, when we came into office, this had been an area of focus when he was a senator, through the campaign. So we knew that we were going to be brought into these programs that had been controversial already.

   What I remember the president being focused on was getting an understanding of what are the oversight mechanisms so that we have understandings of what the NSA is doing, how the programs are implemented and what the checks are.

   That initiated a period of review where the president asked them to go back and make sure that we were providing for additional auditing of the program, additional reporting to congressional committees as relevant, so that we were putting checks in place that essentially layered the oversight to guard against abuse.

   So how does it change, and how is it different? How is what you inherit different from what the program was in the beginning of the Bush years?

   Well, I think it's really important to understand that the beginning of the Bush years and the program that was revealed to the public in 2005/2006 was one in which there was not a process to ensure that there was a warrant around wiretaps, that there were occasions where essentially the government was able to pursue individuals' information, including content, without getting a warrant.

   And that's what sparked a huge public outcry, including a lot of criticism from then-Sen. Obama. In 2008, Sen. Obama supported the law that passed to reform the program, to bring it more in line with the FISA Act [Foreign Intelligence Surveillance Act] and to ensure that there was a warrant associated with any wiretapping that was going on.

   So the program had changed a lot from the controversy that had initially been sparked by the revelations. At the same time, what we did is ensure that even with the FISA Court oversight, there was additional oversight from inspectors general, there was auditing done of the programs to make sure that we were catching abuse when it happened, and that there was a regular reporting cycle to Congress.

2. Ψ ShareSen. Obama's decision to support the 2008 FISA Amendment Act

   Talk a little about what the president did stand for back in the years when he was senator. ...

   Well, you have to remember that the president is a constitutional lawyer, and I think his attitude was that there were not appropriate checks and balances put in place on the program; that any program would have to have the oversight of all three branches of government. That means that there's a court that has to issue a warrant to access the content of any calls or emails. That means that there's congressional oversight so the executive branch is not acting independently. His objections that he voiced very strongly were to that absence of effective judicial review and oversight.

   I think he was for reforms of the program that would bring it in line. And it really was a matter of oversight, of accountability and ensuring that we were guarding against abuse. It was not an objection to the fact that there would be a tool where the government could access this information.

   Critics will say the 2008 FISA Amendment Act didn't really do much more than basically legalize the Bush program. What was the opinion of Obama about that?

   That was the biggest sticking point. I remember in 2008 when the bill came forward, there was some discussion as to whether or not he would support it. And the biggest sticking point was this notion of essentially granting some retroactive immunity for what had taken place.

   I think generally he ended up coming down on the side that this does plug some of the holes; it does fix the key problem that he had raised related to the FISA Court, and therefore, even if it's not exactly as he would have drafted it related to some of the retroactive issues, that it would fix the problem sufficiently that he could support that bill.

   Some people say it was a political decision, that he was running for president at that point and it became a necessity basically not to look weak.

   Well, I wouldn't say that, because frankly, during the course of our campaign, he was willing to stake out issues on these post-9/11 authorities that did fly in the face of the Bush administration's policy -- on closing Gitmo, on banning enhanced interrogation techniques and on challenging some of these surveillance practices.

   So he was willing to engage those debates when he felt it was necessary. Frankly, he just felt like this was an effective enough compromise that he could support it as president.

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   When he said he was going to vote for it, what he said was there would be, if he did win the election, that there would be an immediate comprehensive review of the program. Take me into what did take place after taking power. ... What was the debate? What was the review?

   I think the review got at a couple of different issues. One, he wanted to understand just why this was a valuable tool for the intelligence community. So he wanted to get an understanding of why it was necessary for them to have these capabilities.

   And the second one got at this question of oversight: What type of oversight can we provide so that there is assurance to guard against abuse? John Brennan, as his counterterrorism adviser, was deeply involved in this process, as was his national security team.

   And over a period of time, I think he was satisfied that, with some changes to the way in which the program was administered, he was comfortable that it did add value to our counterterrorism efforts and that we could be certain that there was oversight, not just from courts and not just from the Congress, but additional oversight built in from the executive branch. And frankly, NSA was able to catch some instances of abuse because of the internal procedures that they had in place.

   So an illegal program had been brought into balance, had been made legal, and it was an important asset?

   Yes, that's how I'd summarize it. ...

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   The FISA Court also had come out in 2009, 2011 with problems with this specific program. [Sen. Ron] Wyden (D-Ore.) was fighting it. Why did the phone data program continue despite concerns that were being raised?

   Well, there was a very strong view in the intelligence community that this was an important program, that it did fill an important gap, and that frankly, when we looked at some of the fast-developing plots that we were faced with, that the ability to have this tool was something that was of value to them; that there were many instances, for instance, where you have a plot where there's somebody who may be in the United States, who's in contact with somebody back in Pakistan, for instance, and the ability to have this tool that can allow you to map essentially who a terrorist is in touch with, what their pattern of communications is, is something that you would need in the moment where you're trying to disrupt a plot.

   That was the broadly held view of the intelligence community, and the president was persuaded that it was necessary.

   But of course their concerns, Wyden and the FISA Court as well, was over the domestic side of what was being sucked up. Was there concern within the White House that this was something that needed to be dealt in some way at some point?

   Yes. And you know, I think that, particularly as these questions were raised by Sen. Wyden over time, there were a number of factors that I think did change the president's calculus even before the [Edward] Snowden revelations.

   I do think you have to look at it in context, that we were dealing with a lot of these post-9/11 issues in sequence. When we came in, detention policy was a huge focus. We've made a significant push to reform detention policy, military commissions, to close Gitmo. Then when you look at 2012, 2013, drones was a significant focus, and how do we put, again, a framework around our use of drones and our use of direct action.

   What I remember was, when I was working on the president's speech that he gave at NDU [National Defense University], announcing the outcome of his drone policy review, he was very focused on ensuring that we would include a reference to the need to look at this issue of surveillance and how are we balancing privacy concerns and security concerns.

   When I talked to him about this, what he was focused on was both the fact that questions were being raised by Sen. Wyden and others, but also that there was a sense that technology was evolving. Even just in the several years we've been in office, the technology is evolving to the point that the government has extraordinary capability and that people's lives are more and more online and digitized.

   So it wasn't just the telephone metadata program that the president had in mind; it was this question of, how do we manage the fact that technology is giving us huge capabilities at the same time that people's data is moving more and more into digital space?

   It was already, I think, our inclination that after we concluded the drone review, the next set of issues we would look at would be these surveillance issues. Of course, the Snowden disclosures rapidly accelerated that process and elevated it in the public eye.

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   ... The other thing that Wyden is famous for is the questioning of [Director of National Intelligence] Gen. [James] Clapper and the statement that folks say afterward that Clapper lied to Congress about the millions of documents that were sucked up domestically. What's your take on what was going on there? ...

   Well, I think our general view is that it's a difficult balance for any intelligence official to testify in public session. Frankly, I think we were sympathetic to Gen. Clapper's predicament, that he felt like that if he answered the question fully, he could be revealing a classified program. At the same time, he indicated that he could have phrased his answer differently, essentially indicated a need to discuss that in a more sensitive and classified setting.

   So I think we understood that it was not his intent necessarily to mislead, because frankly, Sen. Wyden was already aware of the program. It was just his intent to not in the heat of the moment reveal in a public setting what was at the time a very classified program.

   The criticism, of course, is, well, it shouldn't have been classified, that this is where transparency that the president promised should have taken over. And in fact, here was a situation where a member of his team was basically lying about what existed about the records of Americans. What is the answer to that point of view?

   Looking back broadly, we'd be sympathetic to that point of view. I think that the exercise of the last several months has demonstrated that transparency has a value and that we could have found ways to describe these programs publicly in a way that protected sources, methods and those types of concerns, but that could have allowed for more public debate. ...

6. Ψ ShareHearing about the Snowden files for the first time

   So let's talk about Snowden. The White House or the NSA gets a phone call or the NSA talked to the White House about the telephone call from The Guardian, an editor from The Guardian, talking about the fact that they're about to release the Verizon story. What is the reaction? ...

   I remember well getting the phone call. It was one of these situations where it almost took us a few minutes to get our minds around how big of a leak this was and how comprehensive the set of revelations were associated with FISA. We had very little time to react.

   I can tell you that it is our default position that sensitive and classified information should not come out in ways that, again, don't allow us to have the full understanding of where this information is coming from, what it's saying. We frankly didn't have a good understanding of what we were dealing with at the time. So our inclination is to try to get publications to hold and work with us to assure that we are protecting sources and methods.

   But I remember we were scrambling a little bit that day to determine what exactly was coming out. After the revelations did come out in The Guardian and The Washington Post, we were then flying to California for a summit with the Chinese leader, and that is when the full scope of this came out, because that's when Mr. Snowden made his statement, and it became immediately apparent to us that he had not just revealed information associated with [FISA Section] 215, but that there were likely a much more broad set of revelations that he was prepared to do.

   Obama's view of Snowden, I think he's been quoted as saying "self-important narcissist." What was the view of the man, why it was wrong for him to do what he did? ...

   Well, we talked about this when we were first dealing with this issue in California, for instance. I remember sitting with the president as he made his first statement on this from California. And frankly, he decided at that point to focus on the issues at hand and not the individual, and frankly indicated an openness to the public debate that was going to be engendered by this.

   At the same time, though, I think we believe that Mr. Snowden is someone who has broken the law and that there are a number of reasons why this is not the way to initiate a public debate. One is that the information tends to come out in a sensationalist way that is not accurate. We've seen that time and again with these disclosures. You get kind of a tip of an iceberg, but you don't see the context for what we're doing.

   Secondly, though, is, if the signal is sent that any individual who has a problem with U.S. government policy can take it into their own hands to reveal classified information, that could set a terrible precedent, whereby all of the people who are entrusted with this information in the government feel like they have free rein. If they don't go through the established channels for whistle-blowers, essentially we can't really do our business on national security.

   I think the third point is the choice of destination was peculiar: Hong Kong, part of the People's Republic of China, and then Russia, frankly our two principal intelligence adversaries. That only further puts in danger, I think, our national security as it relates to their ability to potentially exploit this information.

   So for all those reasons, again, I think we've made clear that this is not the way in which one should seek to elevate this debate; that if people have concerns, there are channels through which they can raise those concerns, but that if people can break the law with impunity, we can't really protect our country.

7. Ψ ShareWhat in Snowden's revelations surprised the president?

   The president, was he surprised by any of the revelations? ...

   There were certainly some things that came out that he was not aware of. The issues that were of most focus, you know, the big programs, 215, 702, the president certainly knew a lot about those programs.

   I think when it comes to, for instance, some of the revelations about individual heads of state, he did not know about that collection, frankly because he was not micromanaging which head of state we might collect intelligence on.

   So when that information came out, I think it did surprise him in the sense that he wasn't aware of it. It didn't surprise him that we might have the capability to do that. But the question was, what policy oversight do we have in making decisions about who we collect information on and how we conduct surveillance. And that's where our policy review led.

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   So the policy review leads to the intelligence group that is organized to take a look at it. Why the decision for the group? ...

   Well, we were essentially trying to catch up to a very rapidly developing situation last spring, and we were looking at, you know, are there specific changes we should make to 215? How do we consider some of the concerns that had been raised about 702?

   The president called a group of us in -- National Security Advisor [Susan Rice]; Lisa Monaco, who's his counterterrorism adviser and became very involved in this; [White House Chief of Staff] Denis McDonough; myself -- and what he indicated was that he wanted to make sure that we weren't just kind of looking at the different pieces of this, that we had the ability to step back and look more broadly at what are the trade-offs that we make in how we conduct intelligence, how we collect information against our foreign policy, against privacy concerns; and that he felt like you don't always have the bandwidth to do that in the government. So let's try to find people who come at this from different perspectives, who can shed light on this and who can kind of step back for several months and apply themselves to the challenge.

   He also wanted us to do that internally, so we also organized a review inside of the government. And we also knew that we had the Privacy and Civil Liberties [Oversight] Board.

   But he was very involved in standing up this review group, which became known inside the White House as the "Big Brains," because we were looking for people who had substantial experience but also the type of intellectual capacity to try to wrap their brains around a very complicated set of issues in a short period of time.

   The reaction to the recommendations. There's a meeting in December where everybody sits down and talks about it. Were they tougher on the program than was expected? We talked to Dick Clarke, [chair, President’s Review Group on Intelligence and Communications Technologies], he talked about he thought that to some extent the White House was surprised a little bit. What was the president's reaction to the recommendations, and why were many of them not accepted?

   ... I can tell you, in the first meeting the president had with them, he asked them to be ambitious and to "don't feel constrained, and to go beyond, frankly, where you think we might be comfortable." That's the purpose of having an external group.

   I think some people felt like, because there were individuals on the group who had worked in the administration, like [former administrator of the Office of Information and Regulatory Affairs] Cass Sunstein or like [former deputy director of the CIA] Michael Morell, that they might pull their punches. But the president frankly asked them to do the opposite.

   So I think we were not surprised. Frankly, we wanted them to push beyond what would be the comfort zone, for instance of the administration. That was the stated purpose of the exercise.

   Then what we did is we took a hard look at their recommendations. And the fact is, the president I think broadly agreed with not just the thrust of their report, but the huge majority of those recommendations.

   Now, some of them we could flip a switch and say, "We'll do these," but some of them frankly required processes to implement over time. And when we sat down with the review group before the president gave his speech, I think we could indicate to them that we were accepting certainly the spirit of their recommendations, and further work had to be done to determine how to implement it.

   The one issue that has gotten a lot of attention, of course, is the 215 program, the government holding this metadata. We indicated to them that we agreed with that recommendation and that we felt that we were comfortable working toward the solution where the government didn't hold the metadata.

   The challenge is, there's not a clear solution. And the review group themselves said that they couldn't say for sure whether it could be a third party, some new entity that could hold the information, or whether it could just go back to the providers. So they were open to that type of further study.

   I think what they were very clear about in our meeting with them is that the principle of judicial review was critical, that it was both who holds the information and also what is the process of judicial review.

   But they say the review suggested that the information gathered was not essential to preventing attacks. Are they wrong? That's a pretty harsh criticism of the program. ...

   Well, I think you have to look at this as a spectrum of capabilities. You know, you can't at any given time look at every individual program and say, "This program stopped X number of attacks."

   The way we look at it is, every capability is a hedge against risk and a hedge against threats and that we could see scenarios where we would want to have this capability, a rapidly evolving situation where an individual conducts an attack and where we're looking to see if he's part of a network, or a situation where we're aware that there's an individual who is a threat and we want to see who that person is connected to. You know, that's part of a spectrum of tools that we have. That doesn't mean that 215 is responsible for X number of attacks. It means it's part of a tool kit. ...

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   So where will we go forward as far as the 215 program?

   Well, the president has made clear that he does not think the government should hold the metadata. So we're currently in a process of review in terms of where does this capability rest.

   And what I can tell you for certain is that 215 in its current form is not going to continue to exist going forward. And we'll have to see whether there's a scenario where it goes back to the providers and there's some mechanism for the government to access the information, or whether there's, again, another entity.

   But the other thing that the president pushed on, which is frankly separate from even anything the review group recommended, is, how can we preserve the capability we need without this program at all?

   So he, rather late in the game, said to the intelligence community: "Well, I understand what you're saying about the risks attendant with putting this back to the providers, including risks to privacy. I understand there's no third party. Can you guys get better at your own information sharing, at your own technological capabilities such that you can give me assurance that in a rapidly evolving situation, you can map somebody's connections through their phone data without a program like 215?" ...

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    The speech -- take me into the speech. ... What were the goals? Bring us here to what the president did. Did he feel he was keeping the balance? Just define the speech for me, why it was important, what was at hand. How much emphasis, how much time had been spent on this issue? ...

    First of all, on the time issue, it's hard to overstate how much time we spent on this issue of surveillance reform broadly in the second part of 2013. I don't think there was an issue that the president spent more time on, on the national security side, with the possible exception of maybe Iran, because it cut across all these different issues: It was a privacy concern; it was a foreign policy concern; his counterparts were raising it.

    And when we initiated the review, we didn't necessarily know he would give a big speech at the end. I think in the fall, it became apparent to the president that he needed to go out and put the context around this, that there were multiple audiences that needed to hear this speech. ...

    So it's not just "Edward Snowden leaked some documents, and here's what I'm going to do about these issues"; it's, frankly, "We've been wrestling with this as a country since we initiated having an intelligence community, and after 9/11, those changes have led us to have more authorities, more capabilities."

    And he really wanted to introduce this concept that technology is evolving and that this is going to impact all aspects of our lives, not just our surveillance, but just how we have data online.

    So I think it was a process of telling that story and then saying, "So here's what I'm going to do about it. Here are the clear reforms at home; here are the clear reforms abroad," and sketching that out for people in a very concrete way.

    And the answer to critics that say, all cosmetic changes, nothing enough to make dramatic changes in a program that needs dramatic changes?

    Well, first of all, I think these are very significant changes for the intelligence community. They are changing a lot of how they do business. Again, the 215 program is not going to exist as it did before. We're reforming the FISA Court in lots of ways that privacy advocates have looked for for many years.

    But I think more broadly, we are speaking publicly about what the U.S. intelligence community does and doesn't do in ways that are pretty unprecedented for any country. If you look at what we did in terms of foreign intelligence, we said we're going to extend protections for foreign persons that we have for American citizens in terms of how long their data is held, in terms of how it can be disseminated in the government.

    We've listed literally: here are the categories of information that we seek through our intelligence, like counterproliferation, weapons of mass destruction, and here's what we don't gather foreign intelligence for. We were able to say we're not going to collect intelligence and conduct surveillance on the heads of state and government of our friends and allies. Making these kind of statements publicly is a new thing for a superpower.

    Frankly, hopefully that can both move us in a new direction, but as this technology evolves, we want to draw other countries into this conversation because there are other countries with the capability to collect metadata. There are other countries with the capability to conduct surveillance beyond their borders.

    Hopefully you can look back years from now and say this was the beginning of an effort to have an international discussion, as well as a discussion in the United States about how we protect privacy in a digital age. ...

11. Ψ ShareWhy has the administration aggressively pursued whistleblowers?

    The issue of whistleblowers and the aggressive pursuit of investigations and prosecutions against whistleblowers, starting with Thomas Drake, which was inherited from the Bush years: Critics will say there was a look-forward-not-backward sort of attitude against illegalities of the Bush administration, but when it came to whistleblowers, that didn't exist. Why the aggressive nature? ...

    Yeah. Well, first of all, I think whistleblowers have a place in our system, and we've provided a new executive order to try to provide avenues for whistleblowers. If people do see abuse, they should be able to bring that to light. ...

    But I'd make a couple points on the broader issue. First is on the harm of unauthorized disclosure; for instance, Chelsea Manning's disclosures, the WikiLeaks disclosures. I've traveled to embassies around the world where people have told me that their civil society contacts don't talk to the United States anymore because they were revealed in those cables. There are some people that we are very concerned were put at risk, because if you live in X authoritarian regime, and suddenly you're listed as having meetings with the U.S. Embassy, you're under grave danger.

    So people really need to understand. Look, I'm a young person, or was at least when I went to work for Barack Obama; I would be sympathetic to a lot of the more progressive voices who support the concept of whistle-blowers. But people have to understand that it cuts both ways. And if this information comes out as casually as WikiLeaks or Snowden disclosures have, there's no control over who is using that information and for what purpose.

    So the first point is that these types of mass unauthorized disclosures can harm even the people that I think whistle-blowers would be sympathetic to -- human rights activists in other countries, allies of the United States and other places.

    On the leak investigations, it's very important for people to understand that this is not a situation where the president of the United States says, "I want to initiate a leak investigation into X article." The Department of Justice makes determinations about which leak investigations to pursue.

    Where I would push back on some of the criticism is, a lot of the prosecutions that people point to are cases that were initiated under the previous administration. There's a constancy to the Justice Department that frankly people wouldn't want the president of the United States to meddle in, to say, "Don't investigate that leak, but investigate that leak." That would be very dangerous for our democracy.

    So the fact is, a lot of this is the rhythm of how the Justice Department operates and not something that has been directed by the president.

    Now, if people want to put greater protections in place for the media and others, that's a policy question, and I think that that's a worthwhile debate. But it's not a case, again, where the president has directed that there be some new focus on pursuing this line of effort.

    And in fact, some of the leak investigations were very much supported by members of Congress, too. So there are a range of actors here who would have to be brought into a discussion about what the policies that allow us to ensure that there are not these types of mass unauthorized disclosures that pose great harm, but that there is protection for a free and independent media that has to hold our feet to the fire and make sure that the American people have an understanding of what their government is doing.