The head of the government’s civil liberties protection board said Thursday that its classified review of the NSA’s collection of Americans telephone records didn’t turn up any evidence of abuses — but both he and the man who lead the National Security Agency’s program said it’s still time to end bulk collection.
Retired Air Force Gen. Michael V. Hayden, who was NSA director when the spy agency began the bulk phone-records collection program under the Bush administration, said he supports the bill winding through Congress that would end the government’s ability to collect and store phone metadata, instead leaving the information with the phone companies, which would only turn over limited data approved by court order.
Both Mr. Hayden and David Medine, the chairman of the Privacy and Civil Liberties Oversight Board, also said they support creating an independent advocate for average Americans’ interests before the secret court that oversees intelligence programs.
The two men spoke alongside Sen. Mike Lee and two top officials from the American Civil Liberties Union at a panel on privacy sponsored by The Washington Times, the ACLU and Microsoft. Times Opinion Editor David A. Keene moderated the discussion, which saw Mr. Hayden say the NSA can live within the new constraints — but the public will see a drop in security.
“Draw the box [and] we’ll play inside the smaller box,” Mr. Hayden said. “By increasing your comfort level, you’ve also almost certainly increased your danger level. But as long as you’re comfortable with that, that’s the social contract. That’s the way democracies work.”
The NSA program came to light after former government contractor Edward Snowden leaked its details last year. The government has since acknowledged it is collecting and keeping five years’ worth of telephone metadata — the times, durations and parties involved in phone calls — and searching it to try to spot terrorist links.
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Since then, questions have been raised about the extent and efficacy of that information, gathered on Americans under Section 215 of the Patriot Act, as well as information gathered on foreigners under Section 702 of the Foreign Intelligence Surveillance Act.
The House last month passed a bill that would halt bulk collection and leave the data in the hands of phone companies. The NSA could still compel the companies to turn over big chunks of data but would have to justify each request by citing specific “selector terms.”
Still, that bill was watered down from the original version at the behest of the Obama administration and with the compliance of House GOP leaders.
“I think the USA Freedom Act is an important first step,” said Laura W. Murphy, director of the ACLU’s Washington Legislative Office, who said she hopes the Senate adds back in some of the protections dropped in the House version. “It’s attacking just the tip of the iceberg when it comes to reining in mass surveillance.”
Mr. Hayden said that when the phone program began, it collected nearly 100 percent of metadata records. But lately it’s been about 25 or 30 percent.
He said the new bill will change that.
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“It’s going to be a little cumbersome. It’s going to be a little harder to hop from Verizon to AT&T to some other phone company in order to do the chaining,” he said. “But in return for the lack of agility, we will now have access to all of your phone records, and I think that is a happy compromise.”
Mr. Hayden repeatedly pushed back against what he said was a misunderstanding of the programs and the law.
He said one misconception is to say bulk data collection is an executive program. He said Section 215 of the Patriot Act was passed by Congress and reauthorized even after bulk collection was going on and said it’s done with the approval of the secret Foreign Intelligence Surveillance Court.
“In the 215 program you’ve got all three branches going check, check, check. That’s kind of the Madisonian trifecta. That’s how it’s supposed to work,” he said.
He said there have been no abuses of the bulk data collection program — and was challenged by the ACLU’s Ms. Murphy, who interjected, “That we know of.”
Mr. Hayden then pointed to Mr. Medine, who, as chairman of the oversight board, had classified access. “He’s looked at the program [and] he says there’s no abuse.”
Mr. Medine didn’t dispute that, but he said there’s reason to be “cautious” the more data the government is given and how it’s used. He cited the Census Bureau’s collection of information that the government used during World War II to round up Japanese Americans for internment.
Mr. Medine also questioned the need for the metadata bulk collection in the first place. His board’s report contradicted the intelligence community’s initial assertions that it had prevented some potential terrorist attacks through the bulk collection program.
“The phone metadata program [isn’t needed] because there are alternative ways of getting access to the program that serve the same, and maybe even better, ends,” he said.
Mr. Hayden said that’s true — for now.
“It’s better because we can afford more time. It may not have been the right answer in 2002. But now [it may be right] given what we know of al Qaeda, the degree of threat, all the other intelligence tools we have — and that’s an important point,” Mr. Hayden said.
For his part, Mr. Lee questioned the current status of court decision-making on bulk data, saying he doubted whether prior Supreme Court precedent anticipated, or is appropriate for, a 21st century level of technological exchange — and the government’s ability to monitor it.
“What might have been stored on papers and personal effects inside our physical houses in the 1790s would not necessarily be put onto a piece of tangible paper today,” said Mr. Lee, a Utah Republican. “Nonetheless, these same privacy concerns still need to be protected, and I think some of the programs we’re talking about today threaten to undermine those same privacy and security interests that are at the heart of the Fourth Amendment.”
He said the question is more complex than just a straight question of constitutionality because no final court has yet ruled the programs unconstitutional — and given various rules, it’s “difficult to conceive of the precise procedural route” that a case would take to reach the Supreme Court.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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