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What’s behind Obama’s campaign to limit bulk data collection by the NSA

March 25, 2014 at 6:12 PM EDT
President Obama announced that he wants Congress to stop the National Security Agency from gathering bulk phone records and holding them for five years. What’s at stake in the president’s push to limit the scope of U.S. surveillance? Gwen Ifill talks to Kate Martin of the Center for National Security Studies and Gary Schmitt of the American Enterprise Institute.
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TRANSCRIPT

GWEN IFILL: We return now to the president’s proposal to limit the NSA’s ability to gather telephone information on Americans.

As intelligence agencies and Congress prepare to debate that balance between privacy and security, we turn to Gary Schmitt, staff director of the Senate Intelligence Committee and executive director of the president’s Foreign Intelligence Advisory Board under Ronald Reagan, and Kate Martin, director of the Center for National Security Studies, a civil liberties advocacy group.

How big a concession was it for the president — we are going to hear the details later this week, no doubt — Kate Martin, to decide to rein in this bulk collection program?

KATE MARTIN, Center for National Security Studies: Well, it’s a significant step.

It’s the president saying to his intelligence community, you haven’t made the case that you need this authority, and I’m going to limit it. So, it’s an important recognition. You know, he did it after two separate outside reviews which said that this particular authority wasn’t needed and hadn’t actually been effective in doing anything.

GWEN IFILL: Gary Schmitt, a significant step or going too far?

GARY SCHMITT, American Enterprise Institute: Definitely a significant step.

Remember, when the president made his speech about a month or so ago, he called the program important. He said that nobody had broken any laws and that it was an important tool for counterterrorism. But yet he has put together a proposal that will make the system for collecting this kind of information a little less flexible and we will have a little less information to go with.

GWEN IFILL: In what way?

GARY SCHMITT: It will be less flexible in the sense that the procedure now allows the court — the court gives the general information, and then these numbers that they have, the NSA is able…

GWEN IFILL: The Foreign Intelligence Surveillance Court.

GARY SCHMITT: Surveillance Court, yes.

And so the result is that the NSA can check those numbers in its database. The new system will mean that the court will approve — at least, if the president’s proposal goes forward, the court will approve each of these requests to go forward. And it means that then they will go to the different telephone companies and have to get that data. It’s just a much more — it’s not a terrible change, but it does make the system less flexible.

KATE MARTIN: Well, but it — what is important about the change is that at the moment — or what the NSA has been doing is collecting all of the call records on everyone.

And what the president has said is, we’re not going to do that anymore. Instead, the government has a phone number that it suspects is involved with a terrorist organization, and it’s going to get the phone call records of the people who were in contact with that phone number and maybe one hop out.

GWEN IFILL: But isn’t it — but doesn’t it also matter, the way it’s been proposed so far, who gets to hold this information and for how long, right?

GARY SCHMITT: Yes. The companies are going to hold this information. It’s not as though the information is not going to be retained.

Now, there is a difference. The NSA retains this data for five years. And the telephone companies typically keep it for no longer than 18 months. So, that’s one of the things I was talking about, lack of depth, which is it will be harder to pursue numbers over time.

GWEN IFILL: Does that hamstring the government’s ability to do this?

GARY SCHMITT: Yes, a bit, yes, I’m sure, because some of these numbers, people and relationships go back for a number of years. So, you want to know about those things. Is it a crippling thing? Probably not, but it’s an important change.

KATE MARTIN: But what is the important about the change, and the phone companies holding the data just means — the phone companies have data on their customers, right?

But what the review group that the president set up said was that the NSA having this massive database on Americans’ phone calls posed risks to democratic governance which were not necessary or justified by any national security benefit from that kind of database.

And so the president said we’re not going to have that database anymore.

GWEN IFILL: But, ultimately, he didn’t conceive whether this was legal or not. Was it legal, in your opinion?

GARY SCHMITT: The president said it was legal and he also said that there had been no evidence of misuse of this authority.

So, in a sense, we’re fixing a flat tire that hasn’t gone flat.

KATE MARTIN: Well, it is true that the president believes it’s legal. Its legality is under attack — under challenge.

GWEN IFILL: Do you believe it’s legal?

KATE MARTIN: No, I don’t think they have the authority. And we’re actually filing, along with lots of other groups, to say that they don’t have the authority.

What the president — the way the president describes it is, we can do it, but should we do it? I don’t think they can do it under the law.

GWEN IFILL: There’s also a suspicion standard, the line which you can cross to decide whether this is information worth getting and retaining. That’s not quite clear yet where that line is. Where should it be?

GARY SCHMITT: Yes, I think there are a couple things going on.

One is, the administration and the intelligence community couldn’t show that it was critical information. They could just show that it was important information. You have the specter of the government retaining this data and people were suspicious. And I think that’s where you are seeing the president respond, as well as the members of Congress.

But, that said, again — again, in the absence of anybody showing that somebody was being untowardly used — and, in fact, the courts have routinely said this — this — this program was constitutional — it’s kind of an odd thing that we’re going through this exercise to fix something that frankly wasn’t broken.

GWEN IFILL: Why are we going through this exercise?

KATE MARTIN: The only court — the court that looked at it from the outside said it was constitutional. The FISA court said it was constitutional.

And we’re going — we’re looking at it because when the program was brought to the light of day, the American people said to the president, why would we have the National Security Agency keep a database of every single phone call made by every single American?

GWEN IFILL: So, you are saying, legality aside, it just didn’t smell right?

KATE MARTIN: That’s right.

And then it wasn’t that it was helpful. There was no evidence that it had been helpful in stopping any terrorist attack. There’s ample historical precedent for a government misusing massive databases on its citizens. And I think that’s what the president recognized.

GWEN IFILL: Was there — go ahead. You wanted to respond.

GARY SCHMITT: Yes, I think a couple things.

On the misuse problem, the way the intelligence community is set up today, with inspector generals in the House and the Senate Oversight Committees, plus and the Justice oversight, plus court’s oversight, the idea that you could have a massive misuse of this data wrongdoing I think is just wrong. That happened in the past, but the new system under which the intelligence community operates makes it very, very unlikely you could misuse this data in that fashion.

GWEN IFILL: Briefly, briefly, going forward, Congress — is there a chance this is actually going to go anywhere? Is there a movement by Congress which is going to make this move? Is there agreement?

GARY SCHMITT: I…

KATE MARTIN: Well, the president has said that he wants a bill from Congress, which he needs to make the changes he is talking about, according to him.

There is, at the moment, bipartisan bills in both the Senate and in the House which would make these changes. There’s maybe a majority of House members who support making these changes.

GWEN IFILL: What do you think…

GARY SCHMITT: I don’t think that consensus exists. And so I think it’s very — unless the president gets really behind this bill, I think he’s going to have a hard time passing it.

GWEN IFILL: Gary Schmitt, Kate Martin, thank you both.

GARY SCHMITT: Thank you.

KATE MARTIN: Thank you.