- The Washington Times - Monday, November 4, 2013

Top lawyers for U.S. intelligence agencies fought a rear-guard action Monday against plans to rein in the National Security Agency’s domestic snooping, telling a blue-ribbon panel that restricting it would hamper the government’s “agility” in pre-empting terrorist plots.

“When we try to connect the dots, the more dots that we have to connect, the better off we are in accomplishing our mission of preventing terrorist attacks,” FBI Acting General Counsel Patrick Kelly said during a daylong hearing of the Privacy and Civil Liberties Oversight Board, a congressionally mandated, presidentially appointed independent panel.

The five-member board, after nearly a decade of bureaucratic torpor since it was established on the recommendation of the 9/11 Commission, recently launched a sweeping probe of the NSA’s data-gathering, including the telephone metadata program, which collects the times, duration and numbers of every phone call in America. The content of the calls is not recorded.

“It’s not a tool that we can say is absolutely must-have,” Mr. Kelly said of the program, the existence of which was revealed this year in documents leaked by former NSA contractor Edward Snowden.

Mr. Kelly testified alongside NSA General Counsel Rajesh De; Robert Litt, the top lawyer for the director of national intelligence; and Brad Wiegmann, the head of the Justice Department’s National Security Division.

In the wake of Mr. Snowden’s revelations, some lawmakers have proposed sharply curtailing the program — and a measure to end it altogether was narrowly defeated in the House this year.

Members of the panel asked about one proposal aimed at assuaging privacy concerns by requiring telecommunications companies to keep the data and allowing the NSA to query it on a court-approved, case-by-case basis.

But officials sought to pour cold water on that idea Monday, telling the panel that it would rob the NSA of the ability to make quick connections across a tangled web of data held by different phone companies

“We wouldn’t be able to see the patterns that the NSA program provides us,” Mr. Kelly warned. “We would be able to, perhaps, go to [each] service provider … and then individually try to connect those dots. But without the ability to look at all the data in a composite way, it would be much harder, it would be much slower, much more difficult for us to do that.

“So … we’d be less agile, we’d be less informed, we’d be less focused,” he said.

Moreover, Mr. Kelly argued, if the data were held by the companies, it could be accessed by many more government agencies than at present, and even by litigants in private actions.

“If the data exists, other levels of law enforcement from local, state and federal would want it for whatever law enforcement purposes they were authorized to obtain it, and civil litigation could also seek to obtain it for such things relatively mundane as divorce actions, who’s calling who and your spouse, if it’s a contested action, for example,” he said.

Officials promised more transparency from the secretive NSA and other agencies, even about the rules that exist to protect foreigners.

“We are open to considering whether there is some value in formalizing, or making more public, the rules we [already] do have about protecting personal information on non-U.S. persons,” said Mr. Litt, noting that a recent list of about a dozen violations of NSA rules over the past decade had recorded almost none against U.S. citizens.

“The majority of these were improper queries of information about non-U.S. persons. And so it’s not only the fact that we have rules that protect non-U.S. persons, but those rules are actually enforced. These people were disciplined or resigned from NSA as a result of this,” he said.