NSA Surveillance: A Second Opinion

In August of last year, the President appointed a five-member Review Group to advise him on the NSA surveillance issues.

In December, the Review Group submitted its 300 page report to the President making 46 recommendations. The President addressed several of the recommendations in a speech a week ago, and he also consulted with another group, the Privacy and Civil Liberties Oversight Board — an agency made independent by Congress in 2007.

This Board has also prepared a report — 238 pages — scheduled for release “by Thursday” and of which the New York Times has obtained a copy.

According to the Times, this “watchdog” has “concluded that theNational Security Agency’s program to collect bulk phone call records has provided only ‘minimal’ benefits in counterterrorism efforts, is illegal and should be shut down.”

The Times:

The Obama administration has portrayed the bulk collection program as useful and lawful while at the same time acknowledging concerns about privacy and potential abuse.

But in its report, the board lays out what may be the most detailed critique of the government’s once-secret legal theory behind the program: that a law known as Section 215 of the Patriot Act, which allows the F.B.I. to obtain business records deemed “relevant” to an investigation, can be legitimately interpreted as authorizing the N.S.A. to collect all calling records in the country.

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While a majority of the five-member board embraced that conclusion, two members dissented from the view that the program was illegal. But the panel was united in 10 other recommendations, including deleting raw phone records after three years instead of five and tightening access to search results.

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But the other two members — Rachel L. Brand and Elisebeth Collins Cook, both of whom were Justice Department lawyers in the George W. Bush administration — rejected the finding that the program was illegal.

They wrote in separate dissents that the board should have focused exclusively on policy and left legal analysis to the courts. Last month, two Federal District Court judges reached opposite legal conclusions in separate lawsuits challenging the program.

The Times concludes:

But the privacy board was unanimous in recommending a series of immediate changes to the program. The three in the majority wanted those changes as part of a brief wind-down period, while the two in dissent wanted them to be structural for a program that would continue.

Some of those recommendations dovetailed with the steps Mr. Obama announced last week, including limiting analysts’ access to the call records of people no further than two links removed from a suspect, instead of three, and creating a panel of outside lawyers to serve as public advocates in major cases involving secret surveillance programs.