Proposals in Congress to end the National Security Agency's bulk collection of U.S. telephone records would compromise the agency's ability to find and track terrorists, representatives of the intelligence community said Monday.
The USA Freedom Act, introduced last Tuesday by more than 85 U.S. lawmakers, would reduce NSA surveillance capabilities to the levels before the Sept. 11, 2011, terrorist attacks on the U.S., said Brad Wiegmann, deputy assistant attorney general of the National Security Division of the U.S. Department of Justice.
Wiegmann and other U.S. intelligence officials faced questions about alternatives to the controversial NSA phone records collection program during a hearing of the U.S. Privacy and Civil Liberties Oversight Board (PCLOB). The USA Freedom Act, sponsored by Senator Patrick Leahy, a Vermont Democrat, and Representative Jim Sensenbrenner, a Wisconsin Republican, would "essentially shut down" the phone records program, said Robert Litt, general counsel of the U.S. Office of the Director of National Intelligence.
The USA Freedom Act would require the NSA to show the records it seeks to collect are related to a foreign power, a suspected agent of a foreign power or a person in contact with a suspected agent. Among other changes, the bill would also require the NSA to get court orders to search U.S. residents' communications obtained without individualized warrants.
The bill is "flawed" because it presumes intelligence officials often have specific targets when looking for terrorist activity, said Patrick Kelley, acting general counsel of the Federal Bureau of Investigation. "That's the essence of terrorism prevention -- we don't know who we're after," he said."If we're limited to seeing numbers from a known [suspect], then we're not very effective."
The model of targeting specific suspects when trying to prevent terrorism doesn't work well, Kelley added. "We're connecting the dots here, so the fewer dots we that have, the fewer connections we'll make," he said. "You are reducing the amount of data available and therefore making it much more difficult to make the connections that we need to make."
PCLOB member Rachel Brand asked Litt if he would support a special advocate to argue for privacy issues at the U.S. Foreign Intelligence Surveillance Court, a proposal in the USA Freedom Act and advocated by several privacy advocates.
Litt said he has concerns about the special advocate assigned to the FISC. He questioned how such an advocate would have legal standing before the court. The addition of a special advocate at the FISC would also mean some terrorism suspects have more legal representation than U.S. residents have when law enforcement agencies are seeking court-ordered warrants, he said.
"Are you going to set up a process that provides more protection for a terrorist than for Americans who are subject of criminal search warrants?" he said.
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