Intel Agency Lawyers Urge Retention of Secret Data

Senior national security lawyers on Monday told an independent oversight board examining U.S. surveillance programs that the government needs to keep its trove of innocent Americans’ telephone records despite growing efforts in Congress to shut down the program.

The lawyers also told the Privacy and Civil Liberties Oversight Board during a hearing that a secret overseas Internet data-gathering program exposed last week was not an attempt to evade scrutiny by a federal intelligence court that supervises such operations. Top officials of Google and Yahoo have criticized the program, in which the National Security Agency reportedly tapped into fiber optic cables that funnel the data overseas. The government did not dispute that it tapped the cables overseas for Internet traffic but said it wasn’t doing so to avoid U.S. legal restrictions.

If Congress were to shut down the government’s collection of Americans’ phone records every day, which it has been secretly doing since 2006, “we wouldn’t be able to see the patterns that the NSA’s programs provide us,” said Patrick Kelley, acting general counsel of the FBI. Kelley added that the FBI would not be able to weed out significant phone data if it did not have the NSA’s massive data bank to tap into, and would lose valuable time if it had to instead seek the data from individual phone companies.

The NSA’s general counsel, Rajesh De, declined to comment about published details describing the U.S. tapping into fiber optic cables to extract Internet data about customers of Google and Yahoo without the knowledge of the technology companies. But De insisted that the program was not an attempt to avoid the supervision of the Federal Intelligence Surveillance Court.

“That is simply inaccurate,” De said. He said news accounts about the program contained inaccuracies but didn’t say what they were.

Eric Schmidt, Google’s chairman, told CNN he was shocked by the latest revelations. Schmidt described the operation as “perhaps a violation of law but certainly a violation of mission.” He added that it was “clearly an overstep.” Schmidt once famously told an interviewer, “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”

Surveillance efforts aimed at the leaders of Germany and other European governments as well as thousands of their citizens have also roiled relations between the U.S. and its allies.

The five members of the Privacy and Civil Liberties Oversight Board are appointed by President Barack Obama but report to Congress. The board has set no deadline but has been meeting for months with national security officials to scrutinize the surveillance programs and their impact on civil liberties.

In his comments, Re noted that former NSA contract employee Edward Snowden, who leaked information behind many recent disclosures, had no access to the surveillance agency’s raw metadata collected both from Americans and foreign phone and Internet users. “We don’t have any evidence that makes us believe Snowden had access to raw material,” Re said.

He said such material is so tightly guarded that only 22 federal officials are authorized to allow NSA employees to query the metadata in counter-terrorism searches.

But recent FISA court documents released by the NSA and the court have shown that despite those safeguards, the surveillance agency repeatedly allowed unsanctioned access to that material until the court ordered tightened procedures.