By Julian Hattem - 01/23/14 02:59 PM EST
The National Security Agency (NSA) program to collect vast quantities of information about phone calls is illegal and should be shut down, according to an independent federal civil liberties board.
In an analysis of federal surveillance efforts released Thursday, the Privacy and Civil Liberties Oversight Board (PCLOB) said that the NSA’s phone records collection “lacks a viable legal foundation” and “raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value.”
Two of the PCLOB’s five members disagreed with that conclusion. Both dissenters were lawyers in the Justice Department during former President George W. Bush’s administration.
The program to collect phone records “rests on a permissible interpretation of the statute” and “has and will allow us to connect the dots and paint a fuller picture of our adversaries,” Elisebeth Collins Cook said. She supported modifying but not shutting down the program.
The 12 recommendations contained in the 238-page report may bolster critics of the spy agency.
The board’s determinations “add to the growing chorus calling for an end to the government’s dragnet collection of Americans’ phone records,” said Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), who has criticized the surveillance program.
He said the report “reaffirms the conclusion” that the program “has not been critical to our national security, is not worth the intrusion on Americans’ privacy, and should be shut down immediately.”
Zeke Johnson, director of Amnesty International USA’s security and human rights program, said the PCLOB report “should be the final nail in the coffin” for the collection of phone records, known as metadata.
The report revealed that judges on the Foreign Intelligence Surveillance Court, who grant spy agencies the authority for their operations, only wrote a full analysis of the program last year.
“Until after the [Edward] Snowden leaks, not one of those judges had written an opinion,” Dempsey said. “What we’re saying is their legal analysis was incomplete at best.”
The panel also recommended that a public advocate be appointed to the surveillance court to argue on behalf of civil liberties and that the data should be deleted after three years instead of the current five, among other measures.
The panel released its report nearly a week after President Obama outlined a series of changes he would like to see at the country’s intelligence agencies. The president met with the board members before his speech and has been fully briefed on their thinking, according to the White House.
The board’s recommendations conflict with some of Obama’s reforms, and the White House said it disagreed with the conclusion that the phone data collection is illegal.
“We disagree with the Board’s analysis on the legality of the program,” National Security Council spokeswoman Caitlin Hayden said. “As the President has said though, he believes we can and should make changes in the program that will give the American people greater confidence in it.”
Dempsey, commenting on Obama’s proposed changes, said: “It was not clear whether he fully appreciated the need to go back to basics.”
In his speech at the Justice Department last Friday, Obama expressed support for the phone records collection program but said that it should be changed so the government does not hold the records. He also said that officials should require a court order before searching the database.
The NSA program could “prove valuable in a crisis,” he said.
“For example, if a bomb goes off in one of our cities and law enforcement is racing to determine whether a network is poised to conduct additional attacks, time is of the essence. Being able to quickly review phone connections to assess whether a network exists is critical to that effort," Obama said
All five members of the PCLOB, even those who supported the program, said that Obama's preference to have an outside party hold the records instead of the government would be as or more concerning than the current program.
Critics have asked the president for a wholesale end to the controversial program, which was revealed in documents released by Snowden, a former NSA contractor.
The USA Freedom Act, which Leahy introduced with Rep. James Sensenbrenner (R-Wis.) in the wake of Snowden’s disclosures last year, would do just that.
The bill “includes many of these common sense reforms [in the PCLOB report], and would restore appropriate legal limits on government surveillance powers,” Leahy said Thursday.
The PCLOB was established to provide a check to government surveillance after the terrorist attacks on Sept. 11, 2001, but was long neglected.
David Medine, the board’s first chairman, was only confirmed by the Senate last year. Before then, the board was unable to hire staff or set up a website.
Obama has asked for many of the larger questions about the data collection program to be finalized by the end of March, when the Foreign Intelligence Surveillance Court needs to reauthorize it.
It would be “hugely challenging” to meet that deadline, Medine said.
“These are very complex issues," he said. "It’s a challenge."