NSA operating outside the law, panelist says

The collection of phone records by the National Security Agency has no basis in the law, a member of an independent federal advisory board said Wednesday.

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“With all respect to both executive branch officials and judicial officials, nobody looked at the statute as carefully was we did,” James Dempsey, the vice president for public policy at the Center for Democracy & Technology, told members of the Senate Judiciary Committee.
 
“I came to this conclusion slowly. I came to it a little bit to my own surprise. But if you read the statute, the words just don’t add up to this program.”
 
Members of the Privacy and Civil Liberties Oversight Board (PCLOB) testified Tuesday for the first time since their 3-2 decision last month to condemn the NSA’s bulk collection of phone records as an illegal program that should be terminated.
 
The panel’s report declared that the NSA’s program “lacks a viable legal foundation ... implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value.”
 
Two of the board’s members dissented. Rachel Brand and Elisebeth Collins Cook, both of whom served in the Justice Department under President George W. Bush, said the NSA program did not violate personal privacy and can be a useful tool to fight terrorism.
 
“I think the board’s report both overstates the privacy implications and understates the benefit,” Brand said.
 
She said the program has many existing protections built in, and collects only information about phone numbers calling other phone numbers, not the names or the content of the discussions.
 
“If you take all of that, plus the additional restrictions that we proposed, I think the intrusion on privacy is very small,” she said.
 
Brand also disagreed with the conclusion that the bulk collection of phone records did not comply with the law.
 
Unlike criminal investigations, which require details only relevant to a specific case, national security investigations necessarily have to look at more information, she said.
 
“It shouldn’t be surprising that a broader volume of data would be relevant to that than to a criminal investigation,” she said.
 
Dempsey, one of the program’s critics, said that the Supreme Court has never ruled on the constitutionality of a privacy issue of this scope. Previous cases upholding surveillance programs were much more limited, he said.
 
“Bottom line is nobody knows what the Supreme Court would say when confronted with such an extensive program and ongoing program of this kind,” he said.
 
District courts in recent months have split when ruling on whether the NSA programs are illegal. PCLOB Chairman David Medine said that the Obama administration should not wait for the legal challenges to reach the Supreme Court.
 
“I think the interest would be to move forward and try to resolve those issues sooner rather than later,” he said.

The administration has started to make some changes to the programs.
 
Last month, the Justice Department reached a deal with a number of Internet companies to disclose, in broad ranges, the amount of requests for data they receive from the government for national security reasons.
 
That agreement “might provide some guidance on how to balance both important concerns on transparency and national security,” Medine said.

Obama has also ordered Attorney General Eric Holder and Director of National Intelligence James Clapper to determine additional ways to limit the NSA data collection.
 
The PCLOB is a relatively new body. Though it was officially created in 2007 after a recommendation from the 9/11 Commission, its chairman was only confirmed last May. Until that point, the board was unable to hire staff, find an office or get down to work.
 
The panel only found out about the phone records collection program “a month or several weeks before” it was revealed by leaks from former NSA contractor Edward Snowden, board member Patricia Wald said.
 
Members of the board said the problem was not that the spy agencies had withheld information but that they did not have the resources or the knowledge to get up to speed.
 
Last week, The Washington Post reported that the proliferation of cellphones had made it harder for the NSA to collect people's phone records.
 
That news “calls into question the entire rationale for the metadata collection program,” said Sen. Richard Blumenthal (D-Conn.), who has criticized the spy program.
 
“In this instance, the rationale for this program is that all of the data has to be collected so that connections can be made, algorithms can be applied, analysis can disclose whether or not there are communications that may raise national security concerns.”

Medine did not discuss classified details of the program but said the revelation would not change his opinion.
 
“Even if the reports are true, it still remains that hundreds of millions of telephone records are still being collected,” he said. “At least it’s my view that that would not change the recommendation of the board.”