A government oversight board’s finding that the National Security Agency’s massive collection of cellphone data is illegal and should never have been approved by the federal court created to deal with sensitive intelligence issues set off a furor in Washington on Thursday that presages the bitter battle likely to come in Congress over how to change the country’s intelligence operations.
Even before the Privacy and Civil Liberties Oversight Board released its report, members of Congress were lining up to either praise it or denounce it in a preview of what will surely be the debate as the nation’s lawmakers take up issues that President Barack Obama left unresolved in his announcement of NSA changes last week.
The statements showed that the NSA controversy has done what so many other issues have not – brought together Republicans and Democrats on the same side, for and against.
Rep. Mike Rogers, the Michigan Republican who is chairman of the House Intelligence Committee, pronounced himself “disappointed” in the report, particularly in the decision of three members of the five-member board to declare the program illegal. He said that move went “well beyond their policy and oversight role.”
But the report was heartily endorsed by Rogers’ fellow Republican, Rep. James Sensenbrenner of Wisconsin, who wrote the USA Patriot Act, under which the NSA collection was authorized. Sensenbrenner in a statement said the privacy board’s report confirmed his belief that the Patriot Act had been misinterpreted to justify the NSA surveillance program.
“This report adds to the growing momentum behind genuine, legislative reform,” he said, adding, in a slap at Obama, that “the president has failed to deliver on his promises of transparency and the protection of our civil liberties. It is up to Congress to rein in abuse and restore trust in our intelligence community.”
Sensenbrenner’s comments were echoed by a senior Senate Democrat, Sen. Patrick Leahy of Vermont, who chairs the Senate Judiciary Committee. “The report reaffirms the conclusion of many that the . . . bulk phone records program has not been critical to our national security, is not worth the intrusion on Americans’ privacy, and should be shut down immediately,” he said.
Sen. Dianne Feinstein, the California Democrat who heads the Senate Intelligence Committee, offered no public comment on the report. But she has been a staunch defender of the NSA collection of cellphone data. Last week, when Obama announced his version of what he thought should be done about the program, Republican Rogers and Democrat Feinstein issued a joint statement in which they praised the collection program and Obama for saying that the program had been critical to terrorism investigation and must be preserved.
The privacy board did not agree. Created by Congress and appointed by Obama, the board said that it had found no instance in which the massive collection of Americans’ cellphone records, including the numbers dialed and the time and duration of calls, had contributed to thwarting any terrorist operation or to the prosecution of anyone who’d engaged in an act of violence.
Referring to the section of law under which the NSA program was authorized, the board said, “Our review suggests that the Section 215 program offers little unique value but largely duplicates the FBI’s own information gathering efforts.” It also noted, “Based on the information provided to the board including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation.”
The board also took a dim view of the Obama administration’s position that the program had helped government investigators prove that there was no threat in some cases. “We question whether the American public should accept the government’s routine collection of all of its telephone records because it helps in cases where there is no threat to the United States.”
But the board’s most controversial finding came in its discussion of the original authorization of the telephone data collection by the Foreign Intelligence Surveillance Court, the secretive judicial body that is tasked with vetting government requests to collect information. That authorization under Section 215 of the Patriot Act was simply wrong, the board said.
“The board concludes that Section 215 does not provide an adequate legal basis to support the program,” the board said. It said the legal provision under which NSA operated its program applies only to the use of the collected metadata by the FBI. Panel members suggested that even the FBI may be overstepping legal bounds through its own data collection programs.
The board also revealed that the Foreign Intelligence Surveillance Court did not issue a full legal and constitutional analysis of the program until August 2013, despite having approved the operation since 2006.
While previous assessments of the NSA program have suggested changes in the way the FISA court operates and is picked, none has so directly questioned its judgment and actions.
The panel’s legal findings were approved by three of the board’s five members. They included a former District of Columbia appeals court judge, Patricia Wald, as well as the board’s chairman, David Medine, a former Federal Trade Commission official, and James Dempsey, the vice president for public policy at the Center for Democracy & Technology, a group that promotes an open, innovative and free Internet.
The panel’s other two members – Rachel Brand, chief regulatory counsel for the U.S. Chamber of Commerce, and Elisabeth Collins Cook, a former assistant U.S. attorney general – did not sign on to the legal findings, saying that the analysis fell outside the panel’s jurisdiction.
Last week, Obama suggested one change in the way the court operated – the appointment of a public advocate in serious cases who would challenge the government’s requests to the court, which currently hears only from a government attorney in deciding a case.
But he rejected changing the way the court is selected – currently, all members are appointed by the chief justice, which some critics say doesn’t provide enough ideological diversity.
The White House defended both the legality and utility of the program in its comments Thursday.
“We simply disagree with the board’s analysis on the legality of the program,” Press Secretary Jay Carney said. “I can tell you that as the president said, there’s no question in his mind that this is a useful tool, one of a number of tools that we are able to employ to help protect the United States against terrorist attacks.”