Midway through Obama’s first term, we rated both of those promises as compromises. Although no substantive changes have been made to enhance oversight of surveillance under the FISA statute or Patriot Act, the Obama administration has voluntarily enacted several measures in the executive branch. Most notably, the Justice Department implemented oversight reforms from a 2009 bill that failed to pass Congress.
Obama also targeted the Bush administration’s use of executive orders to conduct surveillance programs, saying "most of the problems that we have had in civil liberties were not done through the Patriot Act, they were done through executive order by George W. Bush. And that’s why the first thing I will do when I am president is to call in my attorney general and have he or she review every executive order to determine which of those have undermined civil liberties, which are unconstitutional, and I will reverse them with the stroke of a pen."
"I take the Constitution very seriously," he said. "The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that’s what I intend to reverse when I’m president of the United States of America."
The one clear instance of Obama reversing course on a civil liberties promise occurred not with the recent publication of the NSA scandal, but nearly five years ago. In its original incarnation, the FISA statute was designed to protect citizens’ civil liberties — leveling fines, for instance, at any telecommunications company that helped government agencies conduct surveillance on its customers without warrants. In the early stages of the Democratic Primary, then-Sen. Obama promised to filibuster any bill that would give companies immunity from those fines — essentially removing their major deterrent from complying with wiretap requests.
But in July 2008, Obama voted for a bipartisan compromise bill updating the FISA statute that granted telecommunications companies legal immunity in these cases. Though this prompted a backlash among his more liberal supporters, Obama defended his decision at the time, calling the bill a "marked improvement over last year’s Protect America Act" and saying it provided "effective intelligence collection tools with appropriate safeguards."
Meanwhile, on a topic related to the recent leak about surveillance, Obama promised in 2008 to increase protections for whistleblowers. Obama has improved conditions for some whistleblowers, such as government workers who report fraud, waste and abuse within federal agencies. But he has not succeeded in enacting any structural reforms, so we rated this promise as a Compromise last year. The notable exceptions to these improved conditions, however, are whistleblowers from the national security apparatus — whistleblowers like Edward Snowden. As noted in the Obameter ruling, individuals who have leaked information from the intelligence or national security communities have generally been prosecuted under the Espionage Act and enjoy none of the protections other whistleblowers do.