- The Washington Times - Friday, January 8, 2016

The National Security Agency’s top lawyer said Thursday that he’s “confident” of the agency’s current intelligence-gathering capabilities despite concerns that recent reforms may have hindered its ability to gather evidence against terror suspects.

Although the newly implemented USA Freedom Act has reined in the metadata collection program long used by the spy agency to gather the phone records of millions of American citizens in bulk, mechanisms implemented in its place should nonetheless satisfy the government’s needs, Glenn Gerstell, the NSA’s general counsel, said in a blog post.

“Indeed, some are concerned that the new process required under the USA FREEDOM Act for querying telephone records might be too cumbersome to be effective. NSA will in due course, as it gains experience with the new process, report to Congress about the efficiency of the new arrangement. NSA is confident, however, that it can operate the new scheme in compliance with the law, while still obtaining information necessary to help protect our country, and it believes that the country’s telephone companies will similarly fulfill their roles under the new statute,” he wrote in the post published on Lawfareblog.

Revelations concerning the NSA’s vast surveillance disclosed in 2013 by former contractor Edward Snowden prompted Congress to curb the agency’s ability to gather telephone metadata through passage last year of the USA Freedom Act.

In turn, the government stopped administering its own dragnet collection of phone records in November, and now must rely instead on telecoms to store that information and provide it to authorities only if there presented with “reasonable, articulable suspicion” that a particular number or person is associated with international terrorism.

Despite passing Congress and garnering praise from the White House, however, terror attacks in the weeks since the new program went into effect have rekindled debates concerning national security and the nation’s ability to prevent further events like the mass shooting last month in San Bernardino, California.

Sen.Marco Rubio, the Florida Republican vying for his party’s nod in this year’s presidential race, suggested last month that provisions of the USA Freedom Act that restrict the government’s access to phone records may have hurt the ability for authorities to investigate the recent rampage in California.

“The terrorist that attacked us in San Bernardino was an American citizen,” Mr. Rubio said during a presidential debate last month. “I bet you we wish we would’ve had access to five years of his records.”

On the contrary, however, Mr. Gerstell wrote in a blog post this week that the USA Freedom Act hasn’t totally curbed the government’s intelligence gathering capabilities, and actually provides investigators with more records than before, albeit with new privacy protections demanded in the wake of the Snowden disclosures.

“Largely overlooked in the debate that has ensued in the wake of recent attacks is the fact that under the new arrangement, our national security professionals will have access to a greater volume of call records subject to query in a way that is consistent with our regard for civil liberties,” he wrote.

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