US watchdog may put final nail on surveillance

Independent federal agency calls NSA's programme illegal and of minimal benefit

An independent federal privacy watchdog has concluded that the National Security Agency’s programme to collect bulk phone call records has provided only “minimal” benefits in counterterrorism efforts, is illegal and should be shut down.

The findings are laid out in a 238-page report, scheduled for release shortly and obtained by The New York Times, that represent the first major public statement by the Privacy and Civil Liberties Oversight Board, which Congress made an independent agency in 2007 and only recently became fully
operational.

The report is likely to inject a significant new voice into the debate over surveillance, underscoring that the issue was not settled by a high-profile speech President Obama gave last week. Obama consulted with the board, along with a separate review group that last month delivered its own report about surveillance policies. But while he said in his speech that he was tightening access to the data and declared his intention to find a way to end government collection of the bulk records, he said the programme’s capabilities should be preserved.

The Obama administration has portrayed the bulk collection programme as useful and lawful while at the same time acknowledging concerns about privacy and potential abuse. But in its report, the board lays out what may be the most detailed critique of the government’s once-secret legal theory behind the programme: that a law known as Section 215 of the Patriot Act, which allows the FBI to obtain business records deemed “relevant” to an investigation, can be legitimately interpreted as authorizing the NSA to collect all calling records in the country.

The programme “lacks a viable legal foundation under Section 215, 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,” the report said. “As a result, the board recommends that the government end the programme.”

While a majority of the five-member board embraced that conclusion, two members dissented from the view that the programme was illegal. But the panel was united in 10 other recommendations, including deleting raw phone records after three years instead of five and tightening access to search results.

The report also sheds light on the history of the once-secret bulk collection programme. It contains the first official acknowledgment that the Foreign Intelligence Surveillance Court produced no judicial opinion detailing its legal rationale for the programme until last August, even though it had been issuing orders to phone companies for the records and to the NSA for how it could handle them since May 2006.

The privacy board’s legal critique of the programme was approved by David Medine, the board’s chairman and a former Federal Trade Commission official in the Clinton administration; Patricia M Wald, a retired federal appeals court judge named to the bench by President Jimmy Carter; and James X Dempsey, a civil liberties advocate who specializes in technology issues.

But the other two members — Rachel L Brand and Elisebeth Collins Cook, both of whom were Justice Department lawyers in the George W Bush administration — rejected the finding that the programme was illegal.

Reasonable reading

They wrote in separate dissents that the board should have focused exclusively on policy and left legal analysis to the courts. Last month, two Federal District Court judges reached opposite legal conclusions in separate lawsuits challenging the programme.

Ms Brand wrote that while the legal question was “difficult,” the government’s legal theory was “at least a reasonable reading, made in good faith by numerous officials in two administrations of different parties.” She also worried that declaring that counterterrorism officials “have been operating this program unlawfully for years” could damage morale and make agencies overly cautious in taking steps to protect the country.

But the privacy board was unanimous in recommending a series of immediate changes to the programme. The three in the majority wanted those changes as part of a brief wind-down period, while the two in dissent wanted them to be structural for a program that would continue.

Some of those recommendations dovetailed with the steps Obama announced last week, including limiting analysts’ access to the call records of people no further than two links removed from a suspect, instead of three, and creating a panel of outside lawyers to serve as public advocates in major cases involving secret surveillance programmes.

Other recommendations — like deleting data faster — were not mentioned in the president’s speech. And all members of the board expressed privacy concerns about requiring phone companies to retain call records longer than they normally would, which might be necessary to meet Obama’s stated goal of finding a way to preserve the programme’s ability without having the government collect the bulk data.
The programme began in late 2001 based on wartime authority claimed by President Bush. In 2006, the Bush administration persuaded the surveillance court to begin authorizing the programme based on the Patriot Act under a theory the Obama administration would later embrace. But the privacy board’s report criticized that, saying that the legal theory was a “subversion” of the law’s intent, and that the program also violated the Electronic Communications Privacy Act.

“It may have been a laudable goal for the executive branch to bring this programme under the supervision” of the court, the report says. “Ultimately, however, that effort represents an unsustainable attempt to shoehorn a pre-existing surveillance programme into the text of a statute with which it is not compatible.”

Defenders of the programme have argued that Congress acquiesced to that secret interpretation of the law by twice extending its expiration without changes. But the report rejects that idea as “both unsupported by legal precedent and unacceptable as a matter of democratic accountability.”

The report also scrutinizes in detail a handful of investigations in which the programme was used, finding “no instance in which the programme directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
Still, in her dissent, Ms Cook criticized judging the programme’s worth based only on whether it had stopped an attack to date. It also has value as a tool that can allow investigators to “triage” threats and provide “peace of mind” if it uncovers no domestic links to a newly discovered terrorism suspect, she wrote.