Privacy advisory board repudiates NSA surveillance program

Michael DoyleMcClatchy Newspapers

A divided, high-level advisory board has repudiated a controversial surveillance program.

In a much-anticipated, 238-page report, the Privacy and Civil Liberties Oversight Board concluded "there is no adequate legal basis" to support operation of the National Security Agency program that collects bulk telephone records. The program operates under Section 215 of the USA Patriot Act. The Board has been a backstage voice in the nationwide debate over the nation’s intelligence programs. It became fully functional in the weeks before former defense contractor Edward Snowden’s leaks first revealed the NSA programs’ existence.

The board formally recommended that the Obama administration end the bulk collection program, saying that it "raises serious threats to privacy and civil liberties...and has shown only limited value."

"While the board believes this program has been operated in good faith to vigorously pursue the government's anti-terrorism mission," the majority report states, "the board concludes that Section 215 does not provide an adequate legal basis to support the program."

Tellingly, the board's majority also called into question whether the program has even done any good.

"We conclude that the Section 215 program has shown minimal value in safeguarding the nation from terrorism," the majority stated, adding that "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 report was adopted by a 3-2 vote of the board, which is scheduled to make it fully available at 1 p.m.

The board's majority reasoned that the bulk telephone data collection violates Section 215 requirements in part because the telephone records collected "have no connection to any specific FBI investigation at the time of their collection." The majority further concluded that calling the records relevant to any specific investigation redefines the word relevant "in a manner that is circular, unlimited in scope and out of step with the case law."

Moreover, the board warned that the bulk collection program violates the Electronic Communications Privacy Act, which prohibits telephone companies from sharing telephone records with the government except in very limited circumstances. And, on top of all this, the board majority questioned whether the program is "constitutionally sound."

The advisory board's starkly worded conclusions run counter to opinions of the secretive Foreign Intelligence Surveillance Act court, which has upheld the collection of telephone records for the National Security Agency's use. Approximately every 90 days, the government renews its requests to the FISA court for continued collection of the calling data.

"Permitting the government to routinely collect the calling records of an entire nation fundamentally shifts the balance of power between the and its citizens," the privacy board report states, citing a "danger...that personal information collected by the government will be used to harass, blackmail or intimidate" individuals.

Authorized under a 2007 law, the privacy board includes a full-time chairman, attorney David Medine, and four part-time members who include both Republicans and Democrats.

Board member Rachel Brand dissented from the board's recommendation to end the Section 215 bulk collection program, saying the majority report "gives insufficient weight to a proactive approach to combating terrorism." Board member Elisebeth Collins Cook also dissented from the recommendation, stating the the program "fits within a permissible reading" of the law, and noting that it has been previously upheld by "no fewer than 15" federal judges serving on the secret FISA court.

Thursday’s report drew harsh criticism from the programs’ defenders, even before it was publicly released.

“I am disappointed that three members of the Board decided to step well beyond their policy and oversight role and conducted a legal review of a program that has been thoroughly reviewed,” House Intelligence Committee chairman Mike Rogers, R-Mich., said in a statement issued early Thursday. “I don’t believe the Board should go outside its expertise to opine on the effectiveness of counterterrorism programs. As those of us with law enforcement experience know, successful investigations use all available tools—there often is no “silver bullet” that alone thwarts a plot.”

Ali Watkins contributed to this report.

PDF: Report on the Telephone Records Program
Michael Doyle
McClatchy Washington Bureau