Panel tells Obama to curb NSA spy program

McClatchy Washington BureauDecember 18, 2013 

— A group appointed by President Barack Obama to review U.S. surveillance tactics is recommending widespread changes to the controversial National Security Agency spy programs, including ending the NSA’s dragnet collection of millions of Americans’ telephone records.

The report by the Review Group on Intelligence and Communications Technologies doesn’t call for the elimination of the spying program but proposes nearly 50 fixes, acknowledging that privacy and civil liberties “can be and at times have been eroded by excessive intelligence collection.”

Obama, who met Wednesday at the White House with members of the panel, is reviewing the recommendations with his national security staff and will announce in January which recommendations the administration will adopt.

The White House said it wouldn’t comment on the group’s recommendations while its internal review is underway. It said Obama told the group that he expects the U.S. to use its intelligence capabilities “in a way that optimally protects our national security while supporting our foreign policy, respecting privacy and civil liberties, maintaining the public trust, and reducing the risk of unauthorized disclosure.”

Obama announced the group in August amid rising public concern over the scope of surveillance following the Sept. 11, 2001, terrorist attacks. Documents obtained by former NSA contractor Edward Snowden showed the NSA was collecting the telephone records of tens of millions of Verizon customers as well as emails through nine companies including tech giants Microsoft, Yahoo, Google and Facebook.

The authors of the report said the changes – some of which require congressional approval _ would protect privacy and civil liberties without undermining national security

“We’re not saying that the struggle against terrorism is over or that is has declined to such an extent that we can dismantle the mechanisms that we have put in place to safeguard the country,” said Richard Clarke, who served as a counterterrorism and security adviser in the administrations of Presidents George H.W. Bush, Bill Clinton and George W. Bush. “What we are saying is those mechanisms can be more transparent, and that they can have more independent outside oversight and judicial oversight.”

Clarke said the fixes would give the public “a sense of trust that goes beyond what it has today.”

Of the panel’s 46 recommendations, it most notably calls for an end to the NSA’s storage of Americans’ telephone records. Despite NSA officials’ assurances that the metadata is simply unimportant, impersonal digits, board members said it should not be in the hands of the government. Instead, the recommendations call for the data to be kept by phone companies or another third party, available for the government with a specific court order akin to a warrant.

“A fundamental recommendation is that the government should not hold on to this data,” said panel member Michael Morell, the former deputy director of the CIA. “And we leave it an open question who should.”

But the concept of taking the records out of the government’s hands may be a tough sell with the NSA, which says the dragnet allows it to have the complete “haystack” of possible terror connections. By letting phone companies keep the records, NSA director Gen. Keith Alexander has said, the NSA is unable to see all of the possible connections.

“If you only go to one company, you’ll see what that phone company has. But you may not see what the other phone company has or the other,” Alexander recently told CBS’ “60 Minutes.” “So by putting those together, we can see all of that essentially at one time.”

In addition to allowing phone companies to hold the data, the panel also calls for each query to have its own specific court order. A bulk court order _ which the agency is currently using _ would no longer be permissible.

The board also urges more stringent handling of Americans’ data that is collected incidentally through targeting foreigners, or as NSA critics have called it, the “backdoor loophole.”

The revelations that the U.S. was spying on foreign allies sparked outrage abroad. The panel defines concrete standards for targeting the communications of foreign leaders and calls for Obama to create a new process that requires the “highest-level approval” of all such surveillance.

The panel also addressed the secret Foreign Intelligence Surveillance Court, which has long been pegged by NSA critics as a rubber stamp for the nation’s intelligence community. A public interest advocate to represent Americans’ interest in the government’s dealings with the court is necessary, the panel says, and more of the court’s decisions should be declassified.

It also recommends providing privacy act protections to both U.S. and non-U.S. citizens, and that the next NSA director be a civilian and be subject to Senate confirmation.

The release comes just days after a federal judge found that the program that collects massive amounts of telephone data “likely” violates the Constitution. Though that ruling is stayed pending the government’s appeal, the legal argument is expected to end up before the U.S. Supreme Court.

In his decision, U.S. District Judge Richard Leon of Washington took note of what he called the “almost Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States.”

Some civil liberties groups had expressed worries that that the panel’s members were too close to the Obama administration to provide a conclusive fix, but the American Civil Liberties Union said Wednesday that the report includes many ACLU positions, and it encouraged Obama to adopt them.

The Open Technology Institute hailed some of the findings but called on Obama to end the bulk collection program entirely. The group’s policy director, Kevin Bankston, said Obama should “consider the positive reforms contained in the review group report as the floor, not the ceiling, when it comes to reining in the NSA’s massive surveillance programs and enacting meaningful reforms.”

Obama would be “well served to take the advice of the board and restructure the program as soon as possible,” said Rep. Adam Schiff, D-Calif., a member of the House intelligence committee. Citing the recent court ruling and congressional interest in overhauling the NSA, Schiff added, “It would be better to have this undertaken in an orderly and expeditious fashion than to wait for it to be compelled by the Congress or the courts.”

The spy program began during George W. Bush’s administration and has been continued through Obama’s presidency. The program operates by having FBI agents obtain orders from the Foreign Intelligence Surveillance Court, directing telecommunications companies to turn over the information on an ongoing, daily basis.

Email: lclark@mcclatchydc.com, awatkins@mcclatchydc.com; Twitter: @lesleyclark; @alimariewatkins.

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