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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.

California Republican Rep. Darrell Issa asked specifically whether the program was scooping up information from congressional offices.

“Without going specifically, probably we do, congressman,” Cole said.

“We’re not allowed to look at any of those [numbers], however, unless we make a reasonable articulable suspicion finding that that number is associated with a terrorist organization,” Cole added.

Both the Senate and the House have pending legislation that would scrap the NSA surveillance program altogether.

Rep. Jim Sensenbrenner (R-Wis.), one of the main authors of the Patriot Act and its two reauthorizations, said it was a “shock” to learn how Section 215 was being used to justify the metadata collection program.

“If the bulk collection program was debated by the Congress… it never would have been approved,” Sensenbrenner said.

Section 215 expires in June 2015 and with bipartisan congressional opposition to bulk data collection, Sensenbrenner and other lawmakers suggested that Congress would not approve the program again.

“Unless Section 215 is fixed, Mr. Cole, the intelligence community will end up getting nothing because I am absolutely confident that there are not enough votes in this Congress to re-authorize Section 215,” Sensenbrenner said.

Sensenbrenner has introduced legislation that would end bulk data collection and create an Office of the Special Advocate to protect privacy rights in the court’s closed proceedings and with the authority to appeal court decisions. The bill would amend the Patriot Act and require the government to disclose the total numbers of individuals subjected to FISA orders.

Rep. John Conyers (Mich.), the panel’s top Democrat, seemed to agree with Sensenbrenner, saying consensus is growing that the program “is largely ineffective…and inconsistent with the statute as this committee wrote it.”

But he warned that allowing all of Section 215 to expire would “lose valuable counter-terrorism tools along with the surveillance programs many of us find objectionable.”

Conyers said the panel needs recommendations from the administration in order to act.

Clapper announced on Thursday that the Foreign Intelligence Surveillance Court had approved two limits on how the government can use the data it collects about Americans’ phone use.

Under the first change, phone records can be searched only after a court finds that there is “reasonable, articulate” suspicion of international terrorism. He said that limitation will be in place “absent a true emergency,” without elaborating further.

The second change requires that the data query results “be limited within two hops of the selection term instead of three.”

That means that government investigators can trace a suspicious call only through one intermediary number instead of through two numbers. Currently, the NSA is allowed to look at numbers that are three steps away from the target.