A new report has been released by the Privacy and Civil Liberties Oversight Board that was created by Congress in 2004 to serve as “an independent, bipartisan agency within the executive branch” to “review and analyze actions the executive branch takes to protect the Nation from terrorism, ensuring the need for such actions is balanced with the need to protect privacy and civil liberties” and to “ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism.”
This body has been largely dormant up to now but was suddenly awakened from its slumber in the light of the Snowden revelations, when back in June 2013 thirteen US senators asked it to do a review and issue an unclassified report. This recommendation was then supported by president Obama.
Its report (approved by a 3-2 majority of the board) released on Thursday looked at the telephone records program run by the NSA supposedly under authorization of Section 215 of the USA Patriot Act and concludes that “Section 215 does not provide an adequate legal basis to support the program” (p. 10). In other words, the program is illegal, countering all the assertions from Obama down that they have acted within the law.
As to its constitutionality, the board clearly has doubts.
The NSA’s telephone records program also raises concerns under both the First and Fourth Amendments to the United States Constitution. We explore these concerns and explain that while government officials are entitled to rely on existing Supreme Court doctrine in formulating policy, the existing doctrine does not fully answer whether the Section 215 telephone records program is constitutionally sound. In particular, the scope and duration of the program are beyond anything ever before confronted by the courts, and as a result of technological developments, the government possesses capabilities to collect, store, and analyze data not available when existing Supreme Court doctrine was developed. Without seeking to predict the direction of changes in Supreme Court doctrine, the Board urges as a policy matter that the government consider how to preserve underlying constitutional guarantees in the face of modern communications technology and surveillance capabilities.
As to the usefulness of this illegal program, the report is quite scathing.
Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. [My italics-MS] 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. And we believe that in only one instance over the past seven years has the program arguably contributed to the identification of an unknown terrorism suspect. Even in that case, the suspect was not involved in planning a terrorist attack and there is reason to believe that the FBI may have discovered him without the contribution of the NSA’s program. (p. 11)
The chairman of the board has called for the program to be ended.
The assertion by a group of political insiders that the NSA telephone spying program is illegal, maybe unconstitutional, not even useful, and should be terminated should be devastating. The president will very likely ignore the report.