Internal divisions were on full display Wednesday as the panel of privacy experts that reviewed the National Security Agency's mass surveillance program testified before a Senate committee.At a hearing of the Senate Judiciary Committee, the five-member Privacy and Civil Liberties Oversight Board answered questions about the report they issued last month. In that 234-page document, the group unanimously called for improved transparency but was sharply split when it called on President Barack Obama to end the NSA's bulk collection of Americans' phone records and metadata.
The panel is an independent, bipartisan executive branch agency that advises the president on privacy and civil liberties. Congress formed the group in 2004 as a recommendation of the Sept. 11 Commission.
"I think the board's report both overstates the privacy implications and understates the benefits," of bulk collection, said panel member Rachel Brand, who worked for the Justice Department during the George W. Bush administration. She was prodded by Sen. Chuck Grassley, R-Iowa, the committee's top Republican.
Sen. Orrin Hatch, R-Utah, said the advisory board should have focused solely on policy questions and avoided legal analysis, especially since federal courts are already reviewing the program.
"There are a number concerns I have with the majority's legal analysis," said panel member Elisebeth Collins Cook, referring to the group's 3-2 decision that the metadata collection program was unlawful.
Democrats on the committee focused less on the panel's divisions and more on its recommendations.
Sen. Al Franken, D-Minn., noted that the report calls for greater transparency but the government still hasn't revealed how many Americans' phone calls have been collected. He tussled with panel member James Dempsey, who said private companies might not want that "sensitive information" to go public.
"First of all, the companies would like to be more transparent, they've endorsed my bill," Franken said referring to legislation he introduced last year that would force the government to annually disclose a plethora of figures about how many Americans had their phone and Internet information collected.
Other Democrats on the committee said the oversight panel did not go far enough when it suggested the FISA court appoint public advocates who could argue on behalf of the public on high-profile cases.
In its report, the panel said the FISA court should select private attorneys as advocates for the public.
"If the person is an appointee of the chief justice of the [Foreign Intelligence Surveillance] Court or the chief justice of the Supreme Court, they risk becoming the pet lawyer of that individual," said Sen. Sheldon Whitehouse, D-R.I. "If the court can call at them or not at its discretion, there is a risk that they get completely marginalized when they have something important to say."
Whitehouse and his fellow Democrats have been more critical of the NSA program than their Republican counterparts on Capitol Hill. The issue has also created some unique alliances: Liberal lawmakers have teamed up with tea partiers and libertarians to oppose government intrusion into individual's privacy.