JULY 9, 2013
Nation Will Gain by Discussing Surveillance, Expert Tells Privacy Board
By CHARLIE SAVAGE
WASHINGTON -- A retired federal judge, who formerly served on the secret Foreign Intelligence Surveillance Court, on Tuesday praised the growing public discussion about government surveillance fostered by the leaks of classified information by Edward J. Snowden, the former National Security Agency contractor whom the Obama administration has charged with espionage and who remains a fugitive.
"The brouhaha after the Snowden leaks and this meeting indeed establishes what I think is true -- that we need to have a more wide-open debate about this in our society, and thankfully we're beginning to have the debate and this meeting is part of it," said James Robertson, formerly of the Federal District Court for the District of Columbia. He made his remarks during an all-day "workshop" by the Privacy and Civil Liberties Oversight Board, an independent agency that is trying to scrutinize surveillance in light of Mr. Snowden's revelations.
The workshop doubled as something of a coming out for the full five-member privacy board, whose creation was recommended by the Sept. 11 commission. Although some of its members held a public organizational meeting last year, the Senate did not confirm its full-time chairman, David Medine, until May, shortly before Mr. Snowden's revelations began spilling out.
The board has an annual budget of $800,000 and by law has access to classified information. It plans eventually to issue a report and recommendations about whether the surveillance programs properly balance security and privacy, along with recommendations. On Tuesday, its members questioned specialists about the legal, technological and policy implications of government surveillance.
The discussions focused on two areas. The first was the revelation that the N.S.A. is keeping a huge database of domestic communications "metadata" -- logs of all phone calls Americans have dialed or received. The other was the new details about how the N.S.A. is carrying out authority Congress granted it in 2008 to collect the contents of phone calls and e-mails without any individualized court orders so long as the target is believed to be a noncitizen abroad.
In one panel, two former Bush administration Justice Department officials who helped develop the current legal basis for the activities -- Steven G. Bradbury, who led the Office of Legal Counsel in President George W. Bush's second term, and Kenneth L. Wainstein, who led its National Security Division -- defended the programs as both lawful and appropriate.
Their view was largely echoed on a later panel by James A. Baker, a former career Justice Department official who represented the government before the surveillance court. Mr. Baker noted that the programs were approved by elements of all three branches of government, asking, "How much more oversight do you want?"
Still, Mr. Baker also appeared to question the need for the 2008 law, saying that in his view the previous version of the Foreign Intelligence Surveillance Act -- which required individual court orders for all surveillance conducted on American soil, even if the target was overseas -- was adequate for wartime.
Other panelists, including Jameel Jaffer of the American Civil Liberties Union and Greg Nojeim of the Center for Democracy and Technology, criticized the programs. Mr. Nojeim said the domestic call log program in particular was "unlawful" and should be discontinued.
The surveillance court has ruled that the domestic call log program is legally authorized by a provision of the Patriot Act that allows the government to obtain business records deemed "relevant" to an investigation. Several panelists portrayed the court's theory as dubious, citing comments by lawmakers who said they did not intend to authorize such bulk collection in the Patriot Act.
But Mr. Wainstein said it was not uncommon for statutes enacted for one purpose to later be applied in different ways to other circumstances.
The tone of the conversation was largely sober, although there were occasional moments of muted tension.
At one point, Mr. Bradbury, who in the Bush administration signed secret legal memorandums declaring that the suffocation procedure known as waterboarding was a lawful interrogation technique, criticized as "not accurate" Mr. Jaffer's description of the call log program as "surveillance," saying that term means content collection, not metadata collection.
But Mr. Jaffer, seated next to Mr. Bradbury, replied, "I think people can decide for themselves whether it's surveillance or not, in the same way they can describe for themselves whether it's torture or not."
Several panelists argued that the government should be more open about the legal interpretations it is developing about surveillance law so that there could be greater democratic accountability -- and public trust -- in the process. Mr. Baker, for example, suggested that Congress could change the rules so that in the future, when the national security court issues a lengthy ruling interpreting surveillance law, it would be required to produce an unclassified summary of the legal issues for public release.
Judge Robertson, who served on the national security court that oversees government surveillance from 2002 until resigning in December 2005, also criticized the surveillance court system because only the government generally submits filings to it, so judges do not benefit from adversarial debate. He suggested creating an advocate with security clearance who would argue against government filings.
And Michael Davidson, a former counsel to the Senate Intelligence Committee, noted that the call log program must be reapproved by the surveillance court every 90 days and the overseas targeting program once a year. Now that their existence is known, he argued, the board should push to allow outside groups to submit briefs to the surveillance court the next time they come up for renewal.