Just three days before President Obama unveils his plan to reform the National Security Agency, his advisory board laid out its recommendations Tuesday before the Senate Judiciary Committee."Maintaining the ability of the intelligence community to do what it needs to do" was a priority for the group, said Cass Sunstein, a Harvard Law School professor who served on the panel. "Not one of the 46 recommendations in our report would, in our view, compromise and jeopardize that ability in any way."
The panel urged the NSA to stop collecting the phone records of all Americans. Phone companies or a third party should instead hold that information, the report suggested, and the federal government could obtain it through an order from the Foreign Intelligence Surveillance Court. Phone companies have balked behind the scenes at this idea, which they say would be extremely expensive and swing the door wide open to hundreds of lawsuits from American citizens.
Panel member Geoffrey Stone, a constitutional law expert who teaches at the University of Chicago, admitted it would be an uphill climb but a necessary step.
"They would obviously rather not hold the data," Stone said, but letting the government hold telephone metadata means federal officials would have access to a "huge amount of personal information about Americans that could be abused in awful ways," such as digging up dirt on political rivals.
Phone metadata includes the numbers dialed, the date and time of a call and its duration - but not the content of the call or the identities of the parties on the call. Obama administration officials, including the president himself, have repeatedly stressed that "Big Brother" is not listening in to people's calls.
But Michael Morell, the president's former deputy director of the CIA, blurred those lines on Tuesday.
"There is quite a bit of content in metadata," Morell told the Senate committee. "There is not a sharp distinction between metadata and content. It's more of a continuum."
Lawmakers threw some tough questions at the panel. Sen. Lindsey Graham, R-S.C., repeatedly asked them if they understood that the U.S. was "at war with radical Islam." Sen. Ted Cruz, R-Texas, wanted to know why the vast spying program didn't prevent the Fort Hood massacre or the Boston Marathon bombings, even though the suspects in both cases had contact with known terrorists overseas.
During one particularly heated back-and-forth, lawmakers quizzed Morell about a column he wrote for the Washington Post last month that claimed the surveillance program could have stopped 9/11. Morell told the committee that the column reflected his personal opinion and said the review group never discussed the 9/11 attacks. Richard Clarke, a member of the panel who previously served as a top counter-terrorism official in the Bush administration, declined to agree with Morell's assessment.
Sen. Chuck Grassley, R-Iowa, the top Republican on the committee, questioned the panel's thoroughness.
"I don't mean to criticize the effort or intentions of the review group," he said. "But I'm concerned that the group was given such a relatively short time to do their work. As a result, for example, I understand the group spent only one day at the NSA."
The White House created the panel last year after former NSA contractor Edward Snowden unveiled widespread government surveillance programs and sparked a national debate on privacy and safety. The five-member review board issued its extensive review in December, and the 300-page report recommended major changes to the spying agency and the way the United States gathers counter-terrorism information.
Snowden, who was charged with espionage, is living in Russia where he received temporary asylum.
The review board's recommendations are only suggestions for the president, who will announce his plans for the NSA going forward in a speech at the Justice Department on Friday. Details of his proposal have not been released, but Obama has indicated a willingness to make significant changes to the secretive program that rattled the American public and soured relations with U.S. allies abroad.