Independent watchdog group says NSA telephone surveillance program illegal

Rick Moran
An independent executive branch review board has determined that the NSA survellance program that gathers billions of phone calls every day is illegal and should be stopped.

The Privacy and Civil Liberties Oversight Board (PCLOB), an executive branch committee made up of privacy and civil liberties experts, split 3-2 on its report, which included stinging rebuke to the government's contention that the legality of the program is based on a section of the Patriot Act.

Washington Post:

The board's conclusion goes further than President Obama, who said in a speech Friday that he thought the NSA's database of records should be moved out of government hands but did not call for an outright halt to the program. The board had shared its conclusions with Obama in the days leading up to his speech.

The divided panel also concluded that the program raises serious threats to civil liberties, has shown limited value in countering terrorism and is not sustainable from a policy perspective.

"We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation," said the report, a copy of which was obtained by The Washington Post. "Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack."

The report is bound to spur further debate in an already charged environment in which many lawmakers are divided about the program's value and legality. Two federal judges have issued conflicting opinions on the program's constitutionality.

The 238-page report is arguably the most extensive analysis to date of the program's statutory and constitutional underpinnings, as well as of its practical value.

It rejects the reasoning of at least 15 federal surveillance court judges and the Justice Department in saying that the program cannot be grounded in Section 215. That statute requires that records sought by the government - in this case phone numbers dialed, call times and durations, but not call content - be relevant to an authorized investigation.

But the board found that it is impossible that all the records collected - billions daily - could be relevant to a single investigation "without redefining that word in a manner that is circular, unlimited in scope." Moreover, instead of compelling phone companies to turn over records already in their possession, the program requires them to furnish newly generated call data on a daily basis. "This is an approach lacking foundation in the statute," the report said.

The board's findings do not have the force of law, but will carry a lot of weight with congress whose own efforts at NSA reform have become bogged down.

The board also recognized the constitutional issues:

"The connections revealed by the extensive database of telephone records gathered under the program will necessarily include relationships established among individuals and groups for political, religious, and other expressive purposes,'' it said. "Compelled disclosure to the government of information revealing these associations can have a chilling effect on the exercise of First Amendment rights."

Once again, the potential for misuse is enormous - and tempting. That fact alone should give this program the deep six and send the NSA back to the drawing board to come up with a program that protects the homeland while also protecting the privacy of American citizens.

An independent executive branch review board has determined that the NSA survellance program that gathers billions of phone calls every day is illegal and should be stopped.

The Privacy and Civil Liberties Oversight Board (PCLOB), an executive branch committee made up of privacy and civil liberties experts, split 3-2 on its report, which included stinging rebuke to the government's contention that the legality of the program is based on a section of the Patriot Act.

Washington Post:

The board's conclusion goes further than President Obama, who said in a speech Friday that he thought the NSA's database of records should be moved out of government hands but did not call for an outright halt to the program. The board had shared its conclusions with Obama in the days leading up to his speech.

The divided panel also concluded that the program raises serious threats to civil liberties, has shown limited value in countering terrorism and is not sustainable from a policy perspective.

"We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation," said the report, a copy of which was obtained by The Washington Post. "Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack."

The report is bound to spur further debate in an already charged environment in which many lawmakers are divided about the program's value and legality. Two federal judges have issued conflicting opinions on the program's constitutionality.

The 238-page report is arguably the most extensive analysis to date of the program's statutory and constitutional underpinnings, as well as of its practical value.

It rejects the reasoning of at least 15 federal surveillance court judges and the Justice Department in saying that the program cannot be grounded in Section 215. That statute requires that records sought by the government - in this case phone numbers dialed, call times and durations, but not call content - be relevant to an authorized investigation.

But the board found that it is impossible that all the records collected - billions daily - could be relevant to a single investigation "without redefining that word in a manner that is circular, unlimited in scope." Moreover, instead of compelling phone companies to turn over records already in their possession, the program requires them to furnish newly generated call data on a daily basis. "This is an approach lacking foundation in the statute," the report said.

The board's findings do not have the force of law, but will carry a lot of weight with congress whose own efforts at NSA reform have become bogged down.

The board also recognized the constitutional issues:

"The connections revealed by the extensive database of telephone records gathered under the program will necessarily include relationships established among individuals and groups for political, religious, and other expressive purposes,'' it said. "Compelled disclosure to the government of information revealing these associations can have a chilling effect on the exercise of First Amendment rights."

Once again, the potential for misuse is enormous - and tempting. That fact alone should give this program the deep six and send the NSA back to the drawing board to come up with a program that protects the homeland while also protecting the privacy of American citizens.