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House Judiciary Committee Probes Legality of NSA Program

During a congressional hearing over the controversial Section 215 telephone metadata program, committee members grilled U.S. Deputy Attorney General James Cole about the legality of the surveillance program. The Tuesday hearing, held by the House Judiciary Committee, examined the recommendations that have been made to Section 215 and the National Security Agency�s (NSA) broader surveillance programs, which have come under scrutiny after leaks by former NSA contractor Edward Snowden brought them to the public�s attention.

Despite conflicting opinions from lawmakers, U.S. Deputy Attorney General James Cole said that everyone he�s spoken with in the Department of Justice (DOJ) is �comfortable with the legal basis� of the controversial Section 215 telephone metadata program.

Following the release of more than 40 recommendations on NSA surveillance from a Review Group on Intelligence and Communications Technology issued in December 2013, President Barack Obama spoke about the Section 215 program in January, saying that the program is legal and would continue, but that reforms would be made because of public outcry. In contrast, the Privacy and Civil Liberties Oversight Board said in a report issued in January that the program is illegal and should be discontinued, or that it be modified immediately.

As part of its oversight function, the House Judiciary Committee invited Cole, review group member Peter Swire, and Chairman of the Privacy and Civil Liberties Oversight Board David Medine to testify before the committee and to discuss their recommendations on Section 215.

Prior to the hearing, House Judiciary Committee Chairman Representative Bob Goodlatte (R-VA) said that the Section 215 bulk telephone data collection program was in need of �significant reform� to regain the trust of the American people. �We must ensure our nation�s intelligence collection programs include real protections for Americans� civil liberties, robust oversight, and additional transparency,� he said in a statement.

While Swire and Medine took active roles in the hearing, Cole was often the focus of interrogation for members of the committee who asked heated questions about whether, in his opinion as an attorney, he thought that Section 215 was legal under the Constitution. Cole affirmed that he thought the program was legal and pointed out that despite one district court ruling, other courts have upheld the legality of the program and President Obama plans to continue the program in some form.

�It is important to remember that the courts�the final arbiters of the law�have repeatedly found the program lawful, including 15 separate judges of the Foreign Intelligence Surveillance Court and two district courts,� Cole explained. �There has been only one contrary district court ruling, which is now on appeal.�

However, Representative Jim Sensenbrenner, Jr. (R-WI), who helped author the Patriot Act of which Section 215 is part of, said that when composing the act Congress never intended to allow bulk collection of telephone metadata.

Sensenbrenner said that he agreed with the privacy board�s findings and that it was time for genuine reform, possibly in the form of new legislation through his USA Freedom Act (H.R. 3361). The act, introduced in the House last November, would amend the Patriot Act and impose additional requirements for surveillance. It is currently under review in a Senate Subcommittee on Crime, Terrorism, Homeland Security, and Investigations.

Medine agreed with Sensenbrenner, saying that the Section 215 telephone metadata program �barely reflects the language� of the Section 215 statute and is not consistent with the Patriot Act. �We looked at every case sited by the government and more�and our conclusion was that the 215 program far exceeded in scope anything that had been approved before,� he said.

In addition, through the privacy board�s analysis, Medine and other members of the board determined that the program hasn�t led to any incidents where a terrorist plot was disrupted. Instead, the information that the NSA obtained under Section 215 could have been obtained through other measures, such as issuing specific targeted warrants for information instead of bulk collection.

Cole also conceded that there has been a lack of criminal cases stemming from the Section 215 program, saying he believed that only one case had originated from the program. However, he also stressed that under current law, the Fourth Amendment doesn�t protect Americans from having their metadata gathered by the federal government.

Instead, the DOJ is working with the president to make changes to the NSA�s surveillance programs and Section 215 to help regain the American people�s trust. Currently, the DOJ is looking into whether private companies, or a third party, should store telephone metadata records as Americans are particularly concerned about those records being in the government�s hands, Cole said.

�The president has given us this direction and we�re looking for all the possible alternatives,� Cole explained. He also noted that there are issues with different alternatives, such as being able to get information in a timely fashion and possible data breaches.

Today�s hearing was the third in a series that have been held by the House Judiciary Committee on NSA surveillance. The committee held a hearing in July 2013 shortly after the leaks by former NSA contractor Edward Snowden with testimonies from the DOJ, the Office of the Director of National Intelligence, the NSA, the FBI, and civil liberties groups. The committee also held another classified hearing in September of last year where members of the committee were granted the opportunity to further probe government officials from the DOJ, ODNI, the NSA, and the FBI about surveillance programs.

Additionally, the DOJ is working with the executive branch on a number of other issues, including developing additional restrictions on the government�s ability to retain, search, and use in criminal cases information on U.S. persons that was accidentally collected during the targeting of a non-U.S. person overseas.

Following up this morning�s hearing, the Senate Judiciary Committee is holding a hearing about reforms to the NSA�s surveillance programs on February 12 at 10 a.m.