White House rejects review board finding that NSA data sweep is illegal

January 17, 2013: President Barack Obama waves to the audience after he spoke about National Security Agency (NSA) surveillance, at the Justice Department in Washington. (AP/File)

The White House on Thursday disputed the findings of an independent review board that said the National Security Agency's mass data collection program is illegal and should be ended, indicating the administration would not be taking that advice.

"We simply disagree with the board's analysis on the legality of the program," White House Press Secretary Jay Carney said.

He was responding to a scathing report from The Privacy and Civil Liberties Oversight Board (PCLOB), which said the program ran afoul of the law on several fronts.

"The ... bulk telephone records program lacks a viable legal foundation," the board's report said, adding that it raises "serious threats to privacy and civil liberties" and has "only limited value." The report, further, said the NSA should "purge" the files.

The president did not go nearly as far when he called last week for ending government control of phone data collected from hundreds of millions of Americans.

Carney claimed the president, in his address last week, did "directly derive" some of his ideas from the board's draft recommendations. But he made clear that Obama does not see eye to eye with them on the legitimacy of mass phone record collection.

"The administration believes that the program is lawful," he said.

Nevertheless, the findings could be used as leverage in federal lawsuits against NSA spying. The report concluded that the NSA collection raises "constitutional concerns" with regard to U.S. citizens' rights of speech, association and privacy.

"The connections revealed by the extensive database of telephone records gathered under the program will necessarily include relationships established among individuals and groups for political, religious, and other expressive purposes," it said. "Compelled disclosure to the government of information revealing these associations can have a chilling effect on the exercise of First Amendment rights."

The panel added that the program "implicates constitutional concerns under the First and Fourth Amendments."

The recommendations are sure to meet resistance in Washington. House Intelligence Committee Chairman Mike Rogers, R-Mich., who has been a staunch defender of the NSA, voiced dismay at the report's findings.

"I am disappointed that three members of the Board decided to step well beyond their policy and oversight role and conducted a legal review of a program that has been thoroughly reviewed," he said in a statement, noting that federal judges have found the program to be legal dozens of times.

The report also rejected claims that the program was necessary to cover up a gap in intelligence arising from a failure to detect Al Qaeda members in the United States prior to the Sept. 11, 2001 terror attacks. U.S. officials had claimed that the phone data collection program would have made clear that terrorist Khalid al-Mihdhar was calling a safehouse in Yemen from a San Diego address.

"The failure to identify Mihdhar's presence in the United States stemmed primarily from a lack of information sharing among federal agencies, not of a lack of surveillance capabilities," the report said. "This was a failure to connect the dots, not a failure to connect enough dots."

The board's recommendations go well beyond the reforms ordered by Obama in a major speech last Friday, in which he said that the phone records database would no longer be held by the NSA. Obama also tightened restrictions on gathering and accessing phone data, but did not recommend the program's end.

The PCLOB recommendations also are more sweeping than reforms proposed by another panel of experts. That panel, the Review Group on Intelligence and Communications Technologies, advised Obama in December to restrict phone surveillance to limited court-ordered sweeps.

Along with its call for ending bulk phone surveillance, the oversight board report outlined 11 other recommendations on surveillance policy, calling for more government transparency and other reforms aimed at bolstering civil liberties and privacy protections. The board called for special attorneys to provide independent views in some proceedings before the secret spy court -- as opposed to Obama's plan for a panel of experts that would participate at times. The board also urged the administration to provide the public with clear explanations of the legal authority behind any surveillance affecting Americans.

Legal opinions and documents "describing the government's legal analysis should be made public so there can be a free and open debate regarding the law's scope," the board said. Both the Bush and Obama administrations have been criticized by civil liberties advocates and by tech industry officials for failing to provide clear public explanations of the decision-making behind their surveillance policies.

While the oversight board found consensus in some of its recommendations for transparency, its members were sharply divided when it came to the surveillance programs and their judicial oversight.

Two members, former Bush administration Justice Department lawyers Rachel Brand and Elisebeth Collins Cook, defended the bulk phone sweeps and said they were too valuable to shut down.

"I am concerned about the detrimental effect this superfluous second-guessing can have on our national security agencies and their staff," said Brand, who as a Justice lawyer defended USA Patriot Act legislation that provided the NSA with its authority to make the bulk phone collections.

But the oversight board's three other members -- executive director David Medine, former federal judge Patricia Wald and civil liberties advocate James Dempsey -- held firm for broad changes.

"When the government collects all of a person's telephone records, storing them for five years in a government database that is subjected to high-speed digital searching and analysis, the privacy implications go far beyond what can be revealed by the metadata of a single telephone call," the majority wrote.

The oversight board was created at the urging of the independent commission on the 9/11 attacks as a key organizational reform needed to balance counterterrorism policy with civil liberties concerns. The board functioned fitfully for several years, often short on members because of Congress' inaction. It finally won legislative approval last year for all five members and staff and took on its study of the NSA programs at the urging of Obama and congressional leaders.

The Associated Press contributed to this report.