An independent federal privacy watchdog has concluded that the National 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 board's five members split 3-2 on whether the program is illegal, with two members who served as Justice Department lawyers in the Bush administration—Rachel L. Brand and Elisebeth Collins Cook—dissenting. But the five were unanimous in their recommendations for change.
The findings are laid out in a 238-page report, scheduled for release by Thursday and obtained by The New York Times, that represent the first major public statement by the Privacy and Civil Liberties Oversight Board, which Congress made an independent agency in 2007 and only recently became fully operational. [...]
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.
The program “lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value,” the report said. “As a result, the board recommends that the government end the program.”
To see all the details, we'll obviously have to wait until the public release of the board's report. But this release will surely turn up the heat on a program that, since it was first exposed by leaks of classified material from Edward Snowden, has encountered ever-more criticism and disgust, as it should. The board's critique is going to be harder to gainsay than Snowden's or Glenn Greenwald's.
According to Savage, the report "contains the first official acknowledgment that the Foreign Intelligence Surveillance Court produced no judicial opinion detailing its legal rationale for the program until last August, even though it had been issuing orders to phone companies for the records and to the N.S.A. for how it could handle them since May 2006."
Ellen Nakashima at the Washington Post wrote:
The divided panel also concluded that the program raises serious threats to civil liberties, has shown limited value in countering terrorism and is not sustainable from a policy perspective.We've heard that before and now it's official—the demolishing of the very reason we're all supposed to kowtow to the program's existence.
“We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation.” [...] “Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”