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Experts: Vital NSA Collection of Phone Records Could Be Scrapped

Public losing faith in effectiveness

• November 18, 2013 11:53 am

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The National Security Agency’s (NSA) collection of phone records remains vital to national security but could be scrapped if the public loses faith in its effectiveness, experts said Friday.

Defenders of the NSA’s accumulation of so-called phone "metadata" argue that it is critical for counterterrorism efforts, while detractors counter that it represents a gross violation of Americans’ civil liberties.

One such program that collects the data, "Boundless Informant," culled almost 125 billion phone calls worldwide in a 30-day period earlier this year, mostly from Afghanistan and Pakistan, according to top-secret documents released by the Guardian and other news sites. That tally included about 3 billion calls from U.S. sources.

Michael Mukasey, former U.S. attorney general, said the NSA only gathers the phone numbers involved, the duration of the call, and the date—not the content. He also noted that the call database, authorized by section 215 of the Patriot Act, is reviewed and reauthorized every 90 days by the Foreign Intelligence Surveillance Act (FISA) Court.

However, lawmakers fearing a public backlash over the phone records program have proposed dueling proposals to alter it. One would essentially end the bulk collection of phone calls, while the other would preserve the program and add privacy protections.

Mukasey warned lawmakers against passing any sweeping proposals.

"It is the only outward-facing intelligence program of the U.S.—the only one," he said at The Federalist Society's 2013 National Lawyers Convention. "If we tinker with it and mess with it, we are going to be kicking ourselves."

Mukasey said phone metadata could have been used to track the communications of some of the Sept. 11 hijackers who entered the United States before the attacks for flight training. Yet the program was not initiated until after the 9/11 terrorist attacks, a measure to prevent future ones.

"Would that have stopped 9/11? We don’t know," he said. "We might have had another incident, but we might have stopped that one."

Jeremy Rabkin, George Mason University law professor and an expert on constitutional and international law, said the fact that the public is increasingly skeptical of the phone records program, regardless of its efficacy, is a cause for concern. A poll conducted earlier this year found that 70 percent of respondents believed the NSA was using its surveillance programs for purposes other than preventing terrorism.

Mukasey responded that among roughly 2,600 violations previously identified by the NSA, more than 2,000 involved approved monitoring of foreign agents who then crossed into the United States. Only six cases involved agents spying on loved ones when they traveled abroad.

Multiple events have shaken the public’s confidence in the NSA programs, Rabkin said. The most prominent is leaks of classified documents by Edward Snowden, the former NSA contractor who hid in Hong Kong before receiving asylum in Russia. Snowden has released as many as 200,000 top-secret documents to reporters, increasing the probability of a terrorist attack, NSA Chief Gen. Keith Alexander said last month.

"The really shocking thing about Snowden is how did he have access to all this material, which he has now shared with the Chinese, the Russians, the Guardian, and other enemies of ours," Rabkin said.

Director of National Intelligence James Clapper also was widely criticized earlier this year after he told the Senate Intelligence Committee that the NSA did not collect any type of data on millions of Americans, a statement he later said was the "least untruthful."

"People should be forced to resign. There should be accountability," Rabkin said. "We should take it very seriously, and if we don’t there all these proposals [to change the NSA’s programs] and it will be difficult to counter them. It could be a disaster for national security and a disaster for America."

One proposal introduced by Rep. Jim Sensenbrenner (R., Wis.), the USA Freedom Act, would virtually end the mass collection of phone data by requiring the government to prove to a court that it is only seeking records relevant to a suspected terrorist or an associate. A similar House bill failed to pass by just 12 votes in July, an outcome that has galvanized supporters to try again.

The other proposal, introduced by Sen. Dianne Feinstein (D., Calif.), would keep the NSA data collection program intact by permitting analysts to sift through the records if they have a "reasonable articulable suspicion" that an individual is a terrorist suspect. It also establishes a number of privacy safeguards, including an annual report detailing how many searches led to an FBI investigation or probable cause order and a limit on the number of NSA agents who can access the call database.

Mukasey said transparency and privacy protections are important but acknowledged that "a lot of it has got to be opaque, otherwise there ain’t no point in having it." He added that protecting the nation requires a vigorous executive acting as "the bulwark of the national security," a reference to the Federalist Papers.

"We have because of the times we live in surrendered a lot of our privacy," he said, noting there are now private companies that can monitor all of the social media emanating from an area and its intensity. "Those are the times we live in—but I do think we need an executive that is vigorous enough to protect the freedoms we have."

Published under: NSA, Terrorism