Fine Print: Just how open will the debate over surveillance be?

Reporter July 10, 2013

One result of former National Security Agency contract worker Edward Snowden’s recent release of highly classified NSA documents: Tuesday saw what a participant called the necessary start of a public “wide-open debate” about the government’s once-secret data-collection programs.

Just how wide-open a debate remains to be seen.

Walter Pincus reports on intelligence, defense and foreign policy for The Washingon Post. He first came to the paper in 1966 and has covered numerous subjects, including nuclear weapons and arms control, politics and congressional investigations. He was among Post reporters awarded the 2002 Pulitzer Prize for national reporting. View Archive

The forum was a “workshop” run by the Privacy and Civil Liberties Oversight Board, a five-member panel created by Congress at the suggestion of the 9/11 Commission, but moribund until President Obama revived it late last year. Congress took another five months before it approved the board’s chairman, David Medine, a former partner in the WilmerHale law firm, which specializes in privacy law.

Other members are: Elisabeth C. Cook, a former assistant attorney general at the Justice Department; Rachel L. Brand of the Chamber of Commerce and also a former U.S. assistant attorney general; retired federal judge Patricia M. Wald; and James X. Dempsey of the Center for Democracy and Technology.

The board’s activities have moved faster since June 5, when Snowden’s leaked material revealed the surveillance programs operated pursuant to Section 215 of the Patriot Act [collection of business records, including U.S. telephone toll records] and Section 702 of the Foreign Intelligence Surveillance Act [the so-called PRISM database, including e-mails and Internet activities].

During a Charlie Rose interview June 17, Obama said that through “independent citizens” on the board, he plans “a national conversation, not only about these two programs, but also about the general problem of data, these big data sets, because this is not going to be restricted to government entities.”

Board members were subsequently briefed on the NSA programs at a closed meeting June 19 for discussion of “classified information pertaining to the PRISM-related activities and the Foreign Intelligence Surveillance Act.”

Two days later, the board members met privately with Obama in the Situation Room, where aides said the members were promised full cooperation.

At Tuesday’s public morning session, the board heard from a panel made up of two former Justice Department officials who were involved with the programs; two civil liberties specialists who dealt with Congress foreign intelligence surveillance when legislation was being considered; and a former federal judge who was once on the Foreign Intelligence Surveillance Court.

Chairman Medine opened the session with a brief summary of the so-called 215 program, which involves the NSA acquiring and storing five years worth of U.S. telephone toll records. He said that a search of the data can only be made when a U.S. number is called from abroad from a phone associated with a foreign terrorist organization.

What’s then retrieved are other numbers called from that U.S. phone, and calls received by phone. The length of time of the calls is also retrieved. Medine repeated already published reports that fewer than 300 such queries were made of the phone data last year.

The panel’s former Justice officials pointed out that any querying of the data has to be approved by several NSA officials. If further analysis requires more information on the U.S. phone, the FBI must seek a warrant from a judge.

These officials also noted the system parallels the gathering of business records in criminal cases and is used to “connect the dots” in the chance it could uncover a terrorist cell within the United States.

The civil liberties advocates said the program should have had more public exposure before the leaks occurred and been subjected to public discussion before it was implemented.

They questioned the need of such a wide net and asked whether better oversight is necessary to make sure there are no abuses of the data — if not now, perhaps in the future. They also asked whether there were a less intrusive way of collecting data without hauling in all American phone records.

When discussion turned to the 702, or much broader PRISM data base, the focus again was on the amount of data collected on Americans.

Questions were raised about how the rotating set of federal judges who make up the Foreign Intelligence Surveillance Court (FISC) are equipped to decide about the government’s massive electronic collection programs. The civil liberties advocates argued judges are not really equipped to measure the effect of the complicated computer programs, nor the so-called minimization efforts that are used to protect the American privacy rights.

The former Justice officials countered that the targets are foreign terrorists operating abroad and that collection of American-based data is incidental. They said the law prohibits so-called reverse targeting, focusing on a foreign subject because that individual is connected to a U.S. person suspected of terrorist associations. Officials on the panel agreed that oversight, within NSA and Congress, are required with this program.

Panelist James Robertson, the federal judge who had served on the FISC, assured the group that the court “was not a rubber stamp.” But Robertson maintained that legislation approved in 2008 changed the FISC role and made it adjudicate surveillance program rules to be followed by intelligence collectors and “that’s not the baliwick of judges.”

He also said the entire system needs to include adversarial elements to get beyond the government simply giving its side and judges making a determination.

The current process “hears only one side,” Robertson said.

He and others said they didn’t know how injecting someone else into the process would work but one suggestion was to look at the Department of Defense’s group of lawyers set up to defend the Guantanamo detainees being prosecuted by Defense Department lawyers.

The privacy board’s opening session was an interesting start for what should be an extended public discussion. The problem is, few people in attended. It also appears to have gotten minimal media attention. I viewed the two-hour session Wednesday on C-SPAN, and it had generated only three Facebook recommendations and 52 tweets.

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