Independent board preparing NSA recommendations

The Privacy and Civil Liberties Oversight Board has finished looking into the implications of U.S. intelligence community surveillance activities and is set to begin work on a report to the White House and Congress making recommendations about U.S. spy programs.

After a workshop held this summer and a public hearing conducted Nov. 4, both of which involved academic experts and former and current government officials, the board now will assess National Security Agency programs that collected Americans' telephone metadata, among other bulk collection activities.

"We're shifting from the mode of gathering information and conducting legal analysis to now more of testing possible recommended changes," said Chairman David Medine. "We haven't concluded what those should be. But we're looking at range of options, and we're looking at benefits, costs and unintended consequences ... to get a sense of what impact those changes might have."

At the Nov. 4 hearing, lawyers and officials from the NSA, FBI, Foreign Intelligence Surveillance Court and other entities answered questions regarding surveillance practices. Top intelligence community lawyers echoed arguments made Oct. 30 by NSA Director Gen. Keith Alexander, pushing back against proposed legislation seeking to halt the bulk collection of digital data.

"We wouldn't be able to see the patterns that the NSA's programs provide us," Patrick Kelley, FBI acting general counsel, said during the hearing. "We'd be less agile, we'd be less informed, we'd be less focused, and as a result we'd be a lot less effective in preventing the attacks."

But Kelly and others left the door open to potential changes.

"It was very useful to hear from the government panel – about both the areas where the government is amenable to some changes in how programs operate, and areas where they're not comfortable," Medine said. "For example, there's willingness to consider whether U.S. persons or foreigners have rights in surveillance programs, and also to reduce the retention of metadata from five years to three years. They're at least showing they're open to some changes. On the other hand, they're 100 percent against changes proposed by Capitol Hill to abolish the programs."

And while officials did not embrace the disclosures of classified data by former NSA contractor Edward Snowden, they did seem to acknowledge the need for a better-informed national dialogue about intelligence and surveillance capabilities.

"It's certainly possible to think that increased public discourse about intelligence programs is a good thing," said Rajesh De, NSA general counsel.

That discourse likely will be shaped, at least in part, by the independent panel's recommendations. Sources familiar with the proceedings said the board's report can be expected by the end of the year, something Medine would neither confirm nor deny.

When the report comes out, it will head for both Congress and the White House, and a version also will be made available for the public. The recommendations are just that -- but the non-binding proposals could influence forthcoming changes to NSA programs.

"The PCLOB's fundamental role isn't to recommend to Congress what law to pass," said Kate Martin, director of the Center for National Security Studies, who participated in the investigation. "I think the purpose is more to do two things. It has a role in looking at what the executive branch is doing, which is frequently being done in secret, and commenting on that. And when we do have congressional debate, what the board can do quite well is illuminate some of the underlying facts and issues as part of that public debate."