Important Watchdog Review Group Says NSA Phone Call Surveillance Is Illegal, Should Stop

Today the PCLOB added its voice to a message protesters have been championing for months.

Photo by Win McNamee/Getty Images

The Privacy and Civil Liberties Oversight Board is an executive branch oversight group that was created in 2007 by the 9/11 Commission. Though the PCLOB wasn’t fully operational until recently, the group swept into town just in time to release a 238-page report condemning the NSA’s bulk phone call collection program. In fact, the board deemed the spying illegal and is calling for it to be shut down.

Well, sort of. The group is comprised of five members: Rachel L. Brand and Elisebeth Collins Cook, who both worked in the Justice Department during the George W. Bush administration; James X. Dempsey, a public policy expert with the Center for Democracy & Technology; Patricia M. Wald, who is a retired federal appeals court judge appointed by Jimmy Carter; and David Medine, a former Federal Trade Commission official under the Clinton administration. Brand and Cook dissented in the three-to-two recommendation that the NSA phone call collection program be eliminated.

Brand wrote that the legal justification for the program is “at least a reasonable reading, made in good faith by numerous officials in two administrations of different parties.” And both Brand and Cook wrote about its potential usefulness to law enforcement agencies, seeming to agree with President Obama’s speech about NSA reform from last week (Obama had access to the PCLOB report before he gave his remarks).

Thus far the NSA phone call surveillance program has been justified by at least 15 federal surveillance court judges and the Justice Department under Section 215 of the Patriot Act, which says that the FBI may review business records as they pertain to foreign intelligence investigations. The PCLOB’s report, though, is the first time a government group has admitted that the Foreign Intelligence Surveillance Court didn’t actually provide a judicial opinion about the situation until last August, in spite of issuing orders for phone companies to release records since May 2006. And the PCLOB wrote that using Section 215 as justification “boils down to the proposition that essentially all telephone records are relevant to essentially all international terrorism investigations. The Board does not believe that this approach comports with a fair reading of the statute.”

But all five did come together on some definite recommendations. The group wrote that it couldn’t find a single instance of NSA-collected telephone records making a signficant impact on the outcome of a counterterrorism investigation, stopping a terrorist attack, or helping to identify a terrorist plot that otherwise would have gone uninvestigated. The two dissenters on the big-ticket issue of legality hedged that this doesn’t preclude the records from being a helpful tool in the future, but everyone had to admit that it wasn’t an ideal track record. The report includes 10 unanimous recommendations like deleting raw phone records after three years (not five), and tightening restrictions on search result access.

In his speech about NSA reforms last week, Obama said, “On all these issues, I’m open to working with Congress to ensure that we build a broad consensus for how to move forward.” Oh, Obama, what a jokester. We already know that this Congress has an apparent lack of ability to find consensus on basically anything! So what Obama is really saying is that easy reforms will happen in the next few years, but the status quo will basically be maintained.

A major criticism of the PCLOB report is that the group does not have authority to make legal evaluations of the NSA program. The Washington Post quoted Rep. Mike Rogers, R-Mich., the chairman of the House Intelligence Committee, as saying “that the board should … not partake in unwarranted legal analysis.” But given that two federal courts have issued conflicting rulings on the matter and that it is unclear whether the Supreme Court would consider the issue even if it made its way through the appeals circuits, it seems reasonable that other people throw their voices into the mix.

Strong judicial rulings opposing the legality of the NSA program might get the president’s attention, or Congress’. But without a president committed to ending the program, it seems unlikely that anything other than minor reforms will be implemented in the foreseeable future. Nice try, Privacy and Civil Liberties Oversight Board. It was a solid effort.

Future Tense is a partnership of Slate, New America, and Arizona State University.