Requiring a U.S. spy agency to get a warrant each time it wants customer records from phone companies won’t hinder terrorism probes, members of a White House advisory panel said days before President Barack Obama plans to announce changes to surveillance programs.
Panel members testifying before the Senate Judiciary Committee yesterday defended their recommendation that Obama bar the National Security Agency from collecting and storing bulk phone records, such as numbers dialed and call durations.
“I do not believe that we’re going to add a substantial burden to the government,” said Michael Morell, a former deputy CIA director and member of the panel. The government also could have emergency authority to obtain the records and then seek a court warrant at a later time, Morell said.
The group’s advice came in a Dec. 18 report to Obama, who is expected to announce Jan. 17 what could amount to the most significant changes to U.S. spy programs since the Sept. 11, 2001, terrorist attacks. A central issue is whether to listen to the review group and have phone companies or a third party retain bulk phone records rather than the NSA.
Obama and lawmakers are considering restraints on government surveillance in response to a domestic and international backlash against the extent of NSA spying exposed since June by former government contractor Edward Snowden.
Intelligence officials have argued that requiring court warrants for all metadata could consume time and prevent authorities from thwarting possible attacks, disrupting plots or apprehending suspected terrorists.
The advisory group has also recommended that a special advocate be established to represent privacy interests before the secret court that oversees NSA spying under the Foreign Intelligence Surveillance Act. While Obama has signaled that he favors having such an advocate, at least one former judge on the court is critical of the proposal.
In a letter released by Senator Dianne Feinstein yesterday, U.S. District Judge John D. Bates wrote that the participation of a public advocate in the court’s proceedings “is unnecessary” and could “prove counterproductive.”
“Advocate involvement in run-of-the-mill FISA matters would substantially hamper the work of the courts without providing any countervailing benefit in terms of privacy protection or otherwise,” wrote Bates, who was assigned by Chief Justice John Roberts to act as a liaison for the federal judiciary on the issue.
Bates’s criticism could carry weight because he was one of the judges who admonished the NSA for repeatedly misleading the court in rulings that have been declassified.
Spying programs exposed by Snowden have created a public debate over how much can be learned about individuals through metadata, such as phone records that include calls made but not the content of conversations.
Removing the NSA from collecting and storing bulk phone records would “substantially” reduce the potential for government abuse, said Geoffrey Stone, a University of Chicago law professor. Panel members testified yesterday that they didn’t find any previous abuses.
“Government can do far more harm if it abuses information it has than private entities can,” Stone said. “There’s always the possibility of someone coming along down the road seeing this as a great opportunity to get political dirt on individuals.”
The Review Group on Intelligence and Communications Technology, appointed by Obama in August, concluded the phone records program “was not essential to preventing attacks” and information needed to disrupt terrorist plots could “have been obtained in a timely manner using conventional” court orders.
Morell said bulk phone records could be valuable to stopping a future catastrophic terrorist plot inside the U.S.
The review group recommended that phone metadata be held by Verizon Communications Inc. (VZ), AT&T Inc. (T) and other carriers or another third party and accessed by the NSA only with a court warrant.
Stone said there could be privacy issues with companies holding the records, such as making them vulnerable to hacking. Even so, he said that in the group’s thinking the benefits outweigh the risks.
The panel talked to phone company executives who said they “obviously would rather not hold that data,” Stone said. He didn’t disclose which companies were interviewed.
Morell said he learned during the review that “there is quite a bit of content in metadata” and that “when you have the records of the phone calls that a particular individual made, you can learn an awful lot about that person.”
The phone records program “is not uniquely valuable enough to justify a massive intrusion on Americans’ privacy,” Patrick Leahy, a Vermont Democrat and chairman of the Senate Judiciary Committee, said during the hearing.
Feinstein, a California Democrat and chairman of the Senate intelligence committee, has vowed to kill legislation that would end the program.
Lawmakers are demanding, as part of a spending agreement reached Jan. 13, that the NSA turn over data about the collection of phone records, including how many Americans had calls intercepted by the agency.
The agency also would have to provide an unclassified report describing all spy programs that collect bulk data, including their cost, what type of records are being gathered, and what kind of data the agency plans to get. The reports would be due 90 days after the spending bill is signed into law.
Caitlin Hayden, a spokeswoman for Obama’s National Security Council, said the administration had no comment on the provision “at this point.”
White House press secretary Jay Carney and other administration officials have repeatedly declined to say before Obama’s Jan. 17 address which of the panel’s recommendations the president will accept. Obama said before a Cabinet meeting yesterday that his final decisions are “getting close.”
Officials have said Obama agrees with the review board on limiting U.S. spying on allies. The president already has rejected the panel’s recommendation that the NSA be given a civilian leader and separated from the Pentagon’s Cyber Command.
The administration has defended the phone-data gathering as valuable for discovering potential links between terrorists abroad and their collaborators in the U.S., or for determining there isn’t an active terrorist plot.
“Protecting our national security requires a range of tools that allow us to connect the dots,” Michael Birmingham, a spokesman for the Director of National Intelligence, said in an e-mail Jan. 13. “This program is one of those tools.”
The agency says it would be open to changes in the program as long as they don’t make the U.S. unsafe.
The review group has also suggested that the Foreign Intelligence Surveillance Court review and approve applications for national security orders, which are government demands for information. Currently, the government can issue the letters through an administrative process without court approval.
Bates, a former presiding judge on the secret court, said requiring the court to approve the letters could increase its work by more than 20,000 cases per year and “would fundamentally transform” the responsibilities of the body.
The government should provide the necessary resources for the court if the recommendations are adopted, Stone said.
Other panel members include Richard Clarke, a former U.S. cybersecurity adviser; Cass Sunstein, a Harvard Law School professor who once worked in the Obama administration; and Peter Swire, who served on Obama’s National Economic Council.
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