The Cable

Top Obama Lawyers: Reforming the NSA Could Hurt Americans’ Privacy

As Congress considers legislation to reform the surveillance practices of the National Security Agency, senior intelligence officials have said publicly that they’d be willing to modify key aspects of how one of the most controversial programs is run. But now, the top lawyers for the NSA and other intelligence agencies are pushing back on that ...

WASHINGTON, DC - JULY 31: General Counsel in the Office of the Director of National Intelligence Robert Litt testifies during a hearing before the Senate Judiciary Committee July 31, 2013 on Capitol Hill in Washington, DC. The hearing was to focus on oversight of the Foreign Intelligence Surveillance Act (FISA) surveillance programs. (Photo by Alex Wong/Getty Images)

As Congress considers legislation to reform the surveillance practices of the National Security Agency, senior intelligence officials have said publicly that they’d be willing to modify key aspects of how one of the most controversial programs is run. But now, the top lawyers for the NSA and other intelligence agencies are pushing back on that idea, arguing that they should be allowed to continue building a massive database of phone records on every American. It’d be better for American’s privacy rights, they claim.

Under one proposal now pending before Congress, telecommunications providers, rather than the NSA, would hold onto the phone call records of hundreds of millions of people that the agency queries to find connections between suspected terrorists and people in the United States. And a bill with bipartisan backing would further limit the NSA’s ability to collect that information in bulk. Agency officials have said the database is essential for stopping terrorist attacks. But some lawmakers want to restrict the agency’s access to it, in part because the records can reveal private contacts and associations that may have nothing to do with a criminal act.

"I think it’s no secret that the sponsors of this bill want to eliminate the bulk collection program," Robert Litt, the general counsel for the Office of the Director of National Intelligence, speaking of the bill sponsored by Sen. Patrick Leahy (D-VT) and Jim Sensenbrenner (R-WI).

Litt was joined by lawyers from the NSA, the FBI, and the Justice Department, who likewise tried to shoot down reform ideas, along with other proposals that have attracted bipartisan support in Congress. The board that heard their views was established in the wake of revelations about the bulk collection program and other NSA activities that some members of Congress believe have gone on for too long without restriction.

The NSA has previously argued that it was allowed by section 215 of the Patriot Act to store millions of phone records of Americans in order to find potential terrorists and their connections inside the United States. A court found that NSA could hold onto the data on the grounds that it was relevant to terrorism inquiries. In theory, storing the data with the companies, instead of at the NSA, would allow the telcos to serve as a kind of privacy watchdog. They’d be in a position to examine the government’s requests for information about their customers and possibly to object to them in court.

But the intelligence lawyers warned that Americans’ would be subject to even greater privacy incursions if their personal information were stripped from NSA’s control.

Patrick Kelley, the acting general counsel of the FBI, said the phone company data could be made available to "other levels of law enforcement enforcement from local, state and federal who want it for whatever law enforcement purposes they’re authorized to obtain it." He also raised a frightening prospect: "Civil litigation could also seek to obtain it for such things as relatively mundane as divorce actions," he said. "Who’s calling who with your spouse … So if the data is kept only by the companies than I think the privacy considerations certainly warrants scrutiny."

There was some irony in that idea. In September, the NSA’s inspector general revealed several cases in which NSA employees illegally spied on partners or spouses in an incident known internally as "LOVEINT" (love intelligence).

Any act of Congress modifying the phone records database could include provisions prohibiting the use of telephone metadata for purposes not related to national security. And if lawmakers wanted to keep the information out of the hands of local police or civil attorneys, they could write a provision preserving its exclusive use by the NSA and the intelligence agencies.

Still, the lawyers painted dire scenarios of what would happen if section 215 was fully scrapped rather than modified. "We wouldn’t be able to see the patterns that the NSA’s programs provide us," Kelley said. "We’d be less agile, we’d be less informed, we’d be less focused, and as a result we’d be a lot less effective in preventing the attacks."

The lawyers also pushed back against a proposal being debated in Congress to appoint a "special advocate" to argue against the government’s position in certain matters before the Foreign Intelligence Surveillance Court, which authorizes NSA surveillance. Currently, only lawyers representing the government appear. 

"There’s a precedential issue that we’re very concerned about," said Litt. "Are you going to set up a process that provides more protection for foreign terrorists than for Americans who are subject to criminal search warrants?"

The idea of a special advocate is included in the reform bill sponsored by Leahy and Sensenbrenner that already has more than 80 co-sponsors in the House and Senate. The advocate would not be present every time the government wants to get court approval for surveillance. Rather, he or she would weigh in on matters that affected interpretation of law.  A less ambitious reform effort by Sen. Dianne Feinstein (D-CA) authorizes the FISA court to designate an outside "Amicus Curiae" or "Friends of the Court" to offer an independent perspective.

Privacy advocates speaking to The Cable objected to Litt’s reluctance regarding a special advocate. "There should of course be two sides arguing major cases in front of the FISA court," said the Electronic Frontier Foundation’s Trevor Timm. "The adversarial process is a bedrock of our judicial system (and democracy), and one of the reasons we’ve seen such a secret warping of public laws in the past few years is because the [surveillance] court has never heard from anyone but the government."

In other cases, Litt opened the door to more modest reforms, such as retaining copies of Americans’ records for a period of less than five years and reducing the kinds of information that the NSA is allowed to query. The other lawyers did not explicitly support those reforms.

The independent board, called the Privacy and Civil Liberties Oversight Board, is expected to deliver its recommendations to President Obama and Congress by the end of 2013. It’s five members report to Congress but were appointed by the president.

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