WASHINGTON — Almost a month after President Barack Obama called for an end to the National Security Agency’s practice of storing telephone metadata, some senators said Wednesday they feared it would not be enough and pressed for action by Congress.
The Senate Judiciary Committee heard testimony from the five members of the Privacy and Civil Liberties Oversight Board who began investigating the telephone metadata collection program in June after former NSA contractor Edward Snowden leaked classified documents revealing the controversial program. The board said in a report released in January that the government’s practice of collecting telephone metadata under Section 215 of the PATRIOT Act is illegal. It also concluded the program’s risks outweighed benefits, and it should be shut down.
In his January address on the NSA, Obama called for “a mechanism that preserves the capabilities we need without the government holding this bulk metadata.” Although the investigation board’s ruling does not have legal authority like a court ruling, it challenges the president’s assertion that the program is legal.
Judiciary Committee Chairman Sen. Pat Leahy said in a written statement that the report “underscores the need to rein in the government’s overbroad interpretation of Section 215 and provide for greater transparency.” He urged Congress to “heed the advice” of the oversight board and shut down the phone metadata surveillance program.
“Although the administration is in the process of undertaking some preliminary and positive changes to the bulk phone records collection program, these reforms are not enough,” the Vermont Democrat, who was not at Wednesday’s hearing, said.
The committee’s top Republican, Sen. Chuck Grassley, questioned the investigation board’s 3-2 vote that the metadata collection program is illegal, noting it was “adopted only by a bare majority of the board
Grassley said the president, Department of Justice and 15 Foreign Intelligence Surveillance Court judges found the bulk collection of data to be legal.
“The board’s conclusion on this point is striking, given that it is inconsistent with the opinions of so many other authorities that have evaluated the lawfulness of Section 215 program,” he said.
The panel’s two dissenters on that vote, Rachel Brandand Elisebeth Collins Cook, both of whom served in the Justice Department in the Bush administration, said the program should not be shut down. Brand said the board’s analysis of the program was flawed because it did not recognize the distinction between national security and criminal investigations.
“I think the board’s report both overstates the privacy implications and understates the [national security] benefits,” Brand said.
James Dempsey, a member of the oversight panel who also is a vice president of the Center for Democracy and Technology, defended its position that the bulk metadata collection is illegal. He said when he first learned of the program, he suspected it would pass legal muster because it was authorized by the court and that the privacy board might recommend a “few tweaks.”
“The more we looked at it, the more that I came to the conclusion and the majority of the board came to the conclusion that the program just does not fit within the statute, that it was shoehorned into this statue,” Dempsey said. “Nobody looked at this statute as carefully as we did … The words just don’t add up to this program.”
He said the Supreme Court has never ruled on a surveillance program of this scale.
“The bottom line is nobody knows what the Supreme Court would say when confronted with such an extensive program and an ongoing program of this kind,” he said.
The telephone metadata collection program as it currently exists will expire in June 2015. In October, Leahy teamed up with Rep. Jim Sensenbrenner, R-Wis., to introduce a bill in both the House and Senate that would end the bulk collection of phone records and require greater government transparency.
At a Feb. 4 House Judiciary Committee hearing, Sensenbrenner said Congress must take action soon.
“It’s going to be addressed in this year even though it’s an election year,” Sensenbrenner said.
