House Probes Legal Basis of NSA Surveillance Program

WASHINGTON – A House panel grilled a top government official about the legality of the National Security Agency’s bulk data collection program and warned that the Obama administration could lose its surveillance powers if major changes are not made.

Last week, the House Judiciary Committee examined recommendations to reform the Foreign Intelligence Surveillance Act (FISA) and one of the NSA’s spy programs after revelations by former NSA contractor Edward Snowden last year brought them to the public’s attention.

Members of the committee focused on the most controversial of the spy programs, the bulk collection of telephone records.

President Obama announced in January that he supports putting an end to the bulk metadata program authorized under Section 215 of the Patriot Act. The provision allows the government to collect and store telephone bulk metadata – including numbers people dial, call times and lengths of almost every U.S. phone call – without warning those whose information is being collected. The government does not collect information about the content of people’s phone calls.

The president, however, said the capability that this program provides is important and must be preserved.

“I am disappointed that the president was unable or unwilling to clearly articulate to Congress and the American people the value of this information in thwarting terror plots,” said House Judiciary Committee Chairman Bob Goodlatte (R-Va.).

Obama called for a “mechanism” that would allow the government to continue to collect this data and not store it. Specifically, he called for shifting metadata storage from the government to the telephone companies or a third party.

Goodlatte welcomed the president’s focus on where the data is stored, but said there are larger concerns.

“Transferring storage to private companies could raise more privacy concerns than it solves,” he said. “We need look no further than last month’s Target breach or last week’s Yahoo breach to know that private information held by private companies is susceptible to cyber attacks.”

Obama also asked Attorney General Eric Holder to work with national intelligence chief James R. Clapper to develop additional options for a “new approach for the program.”

Peter Swire, who served on the president’s Review Group on Intelligence and Communications Technology, said leaks were a concern whether the government or the private sector stored the data.

“The National Security Agency itself has had leaks and lack of complete security for documents, so we're not comparing perfect with perfect,” Swire said.

Despite the diverging opinion of some lawmakers on the panel, Deputy Attorney General James Cole said that everyone he has spoken with in the Justice Department is “comfortable with the legal basis” of the program.

Cole noted that despite one district court ruling, other courts have upheld the legal basis of the program.

“It is important to remember that the courts – the final arbiters of the law – have repeatedly found the program lawful, including 15 separate judges of the Foreign Intelligence Surveillance Court and two district courts,” Cole said. “There has been only one contrary district court ruling, which is now on appeal.”

Rep. Zoe Lofgren (D-Calif.) asked Cole whether lawmakers’ numbers are included in the agency’s phone-records sweeps.

Swire said he was not aware of any way that these records are “scrubbed out” of the database, but did not respond, protesting he was not a government official and could not answer the question.