Senate Judiciary Unconvinced NSA Phone Record Program Is Warranted
Senate Judiciary Committee members weren’t swayed by intelligence officials Wednesday to reauthorize a controversial Patriot Act-related phone records program (see 1908160057). “I’m torn,” Chairman Lindsey Graham, R-S.C., told us after a hearing on USA Patriot Act Section 215 and other surveillance authorities set to expire in December. Graham generally agrees with ranking member Dianne Feinstein, D-Calif., that tools should be “taken off the table,” unless there’s good reason to reauthorize.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The intelligence community (IC) requested permanent, clean reauthorization of USA Freedom, even though NSA suspended the call detail records (CDR) program after authorities discovered officials were inadvertently sweeping up unauthorized data from Americans. Officials decided they couldn’t justify the low intelligence value versus the program’s technical challenges. But NSA’s Susan Morgan repeatedly testified terrorism is an evolving threat, and it’s possible CDR could be useful in the future.
Sens. John Cornyn, R-Texas; Mike Lee, R-Utah; and several Democrats weren’t convinced. “I’m on the fence," Cornyn told us. "The intelligence community should be congratulated for shutting down a program that they believe doesn’t work, but it’s hard to justify reauthorization of a program that they don’t have a present need for.” The argument it could be useful “may be wishful thinking," he said. "Maybe it’s possible, but nobody knows.”
Without adequate justification, the committee shouldn’t re-up, Feinstein said. “It’s really not clear to me why a program with limited intelligence value and clear compliance problems should be reauthorized.” It’s odd officials want to reauthorize CDR when it was shut because drawbacks outweighed the intelligence, said Graham.
Lawmakers from both parties repeatedly pressed Morgan to provide instances in which the CDR program has returned intelligence value in investigations. She said she could describe specifics only in a classified setting. Graham said he will hold a classified briefing, even though Lee suggested the committee move to a sensitive compartmented information facility (SCIF) and question officials in a closed setting Wednesday.
Sen. Patrick Leahy, D-Vt., noted that then-NSA Deputy Director Chris Inglis claimed in an open setting about four years ago that the CDR program was materially valuable to a counterterrorism investigation once. Morgan said preventing a terror attack is only one factor in determining a tool’s value.
Leahy and Lee wrote the IC in December, demanding answers about the program, but it wasn't answered. DOJ Deputy Assistant Attorney General-National Security Division Brad Wiegmann said to expect a response this week, saying the delay was because the administration was formulating a position. Lee was livid, suggesting the committee should hold monthly hearings with officials to get answers faster. “We’re not messing around,” he said, noting U.S. citizen rights are at stake. “This isn’t a political, partisan issue,” Leahy told us after the hearing.
Sens. Chuck Grassley, R-Iowa, and Richard Blumenthal, D-Conn., told us they will review testimony and other materials before making a judgment on the CDR program. Sen. Sheldon Whitehouse, D-R.I., was more opinionated: “If they shut the program down themselves on grounds that it wasn’t producing information that was valuable enough to justify the cost, that’s a pretty weak argument for reauthorization.” Sens. Ron Wyden, D-Ore., and Martin Heinrich, D-N.M., called for open hearings on Section 215.
USA Freedom struck a proper balance for privacy and security, Wiegmann testified. DOJ doesn’t think any changes are needed. Cornyn noted it appears the program's oversight structure worked, saying the IC identified issues with the CDR program independently. Because the program is suspended entirely, the technical challenges haven’t been resolved, Morgan said.
The Privacy and Civil Liberties Oversight Board concluded there was no “malfeasance or abuse” of CDR authority and officials didn’t intentionally seek unauthorized records, Chairman Adam Klein told the panel. Citing data concerns that partially led NSA to suspend the CDR program and delete the data, Klein said PCLOB’s review determined those challenges were “inadvertent and not willful.” A draft report of the findings is under review by the IC for accuracy, he said. Whether the CDR program should be reauthorized is a “predictive judgment,” he told Graham.
It would be dangerous to take the CDR tool off the table, given the ongoing terror threats from groups like ISIS, testified George Mason University assistant professor of law Jamil Jaffer. Privacy concerns have largely been addressed, and remaining issues can be resolved through oversight, he said. New York University School of Law Liberty & National Security Program Director Elizabeth Goitein cited “significant gaps” in USA Freedom protections, and Congress should fill those gaps, notably by ending the CDR program.
Other authorities up for reauthorization are roving wiretap authority, business records authority and lone wolf authority. Wiegmann noted the IC hasn’t once exercised the lone wolf authority but said it fills an important gap where individual actors are concerned. That authority is critical to combating homegrown violent extremists, testified FBI Deputy Assistant Director Michael Orlando.