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The end of NSA’s bulk data collection?

The government program that collects the phone data of millions of Americans is illegal and not sanctioned by the Patriot Act, according to a ruling by a U.S. appeals court. Gwen Ifill discusses the case with former Homeland Security Department official Stewart Baker and Kate Martin of the Center for National Security Studies.

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  • GWEN IFILL:

    The debate between privacy and security returned to center stage today, after a federal appeals court ruled a National Security Agency program that allowed bulk collection of millions of U.S. phone records went too far. But where is the line?

    And, as a deadline approaches for renewing the underlying Patriot Act, what happens now?

    Joining me to discuss the value of such government surveillance are Kate Martin, director of the Center for National Security Studies, a civil liberties advocacy group, and Stewart Baker, a former general counsel at the National Security Agency and former assistant secretary of homeland security.

    Welcome to you both.

    Kate Martin, was this the dropped shoe that privacy advocates were waiting on?

  • KATE MARTIN, Center for National Security Studies:

    Yes. This is the first time that a federal appeals court has looked at what was a secret interpretation by the government that allowed it to collect massive amounts of records on Americans under a secret interpretation of the law.

    And the court said that that secret interpretation of the law wasn’t, in fact, authorized by the Congress and so held the program to be a violation of the law.

  • GWEN IFILL:

    So what does this do? Does this stop the program in its tracks, Stewart Baker?

  • STEWART BAKER, Former Homeland Security Department official:

    No, actually. It’s remarkably without consequence.

    It, at the end of the day, says Congress, in the view of this court, didn’t authorize exactly what the program is, and unless Congress says that it’s authorized, it’s not going to continue. And then they send it back to the judge, letting the judge in the district court determine whether to enjoin it.

    But really that just underlines what we already knew, which is that Congress has to act in the next three weeks, because, if it doesn’t, the program goes away automatically. If it does, it’s going to have to say, yes, we’re approving this program.

  • GWEN IFILL:

    But does it matter whether the court decided today that this was illegal or unconstitutional, or is it neither?

  • STEWART BAKER:

    It didn’t decide that it was unconstitutional. They said it wasn’t approved by Congress. It was a close call, in my view, whether it was approved by Congress. I think they’re wrong. But they said it wasn’t approved by Congress.

    Congress has a chance and really an obligation to rule on whether this case — this program will continue by the end of the month, and so they will. They will — they will have to say something. And that will put an end really to the discussion in this case.

  • GWEN IFILL:

    Kate Martin?

  • KATE MARTIN:

    So they didn’t rule on the constitutionality because of the matter of jurisprudence. You don’t get to that question if you decide the statute.

    But the opinion, which is 90-some-pages long, laid out the concerns about how the program threatens Americans’ privacy and the concerns about how these new technological tools that are available to the government might really require a re-understanding of what’s constitutional and not constitutional.

  • GWEN IFILL:

    Did it address the argument in those 94 pages about whether this was tying the hands of the intelligence community?

  • KATE MARTIN:

    No, it didn’t, but that — the intelligence community doesn’t make that argument anymore. Some politicians make that argument. Stewart might make that argument. I’m not sure.

  • STEWART BAKER:

    I’m not a politician anymore.

  • KATE MARTIN:

    No, I know. That’s why I was including you.

    Plus — but the director of the national intelligence, and the president, after extensive reviews by outsiders and insiders, which concluded that the program hadn’t resulted in stopping any terror attacks, decided that there was no intelligence value that they needed to continue the program, the essence of the program being that the NSA gets all of the telephone records of all telephone calls made or received.

    (CROSSTALK)

  • GWEN IFILL:

    And the White House has been steadily backing away from the need for that.

    So you say, you both say that by the end of this month, when the Patriot Act expires, something has to happen. What has to happen for Congress? What kind of action can Congress take to change this?

  • STEWART BAKER:

    Congress can reauthorize it, in which case the court’s opinion will be overtaken by events.

    They can modify the program, in which case the statute will be better tailored to what the program is or what new program is adopted. Or they can let it die and take the risk that both this program and a lot of other things that are done with this authority will not be available if we’re attacked by terrorists.

  • GWEN IFILL:

    And what’s the problem — what’s the problem if that happens?

  • STEWART BAKER:

    Well, there are a lot of authorities, a lot of programs that depend on the ability to ask service providers for data about their customers, targeted requests, as well as broader requests. All of them will go away if this section is not reauthorized.

  • KATE MARTIN:

    Well, the most likely outcome, I think, in Congress or what I hope to be the likely outcome is that Congress adopts a package of reforms, which it’s been considering for the past year, known as USA Freedom Act.

    The — it has the support of the administration, and basically those reforms wouldn’t reinstitute the program that the court held illegal today. They provide a different way for the government to get some of the information.

    (CROSSTALK)

  • KATE MARTIN:

    And they also — they also make reforms to other sections of the Patriot Act, that statute, that weren’t addressed by the court.

    There’s widespread bipartisan support for those reforms in both houses of Congress. The House Judiciary Committee passed it overwhelmingly last week, and the House is expected to adopt them next week.

    There has been, I think, a kind of peculiar effort to say, oh, no, we should continue the program as it is, when the intelligence community itself is not asking for that and says these reforms would be better.

  • STEWART BAKER:

    So, I think Kate was right when she said only some of the data will be available, that the data will disappear because records won’t be kept. And when we need to try to find people quickly and to find out who they are conspiring with, if there is a terrorist conspiracy in the United States that is sponsored from abroad, we won’t be able to do that.

    (CROSSTALK)

  • GWEN IFILL:

    Is there an alternative to bulk collection, however? Is there an alternative to doing it the way they have been doing it, that the court said wasn’t legal?

  • STEWART BAKER:

    What the court said was simply the statute wasn’t written to authorize that.

  • GWEN IFILL:

    Right. It’s up to Congress.

    (CROSSTALK)

  • STEWART BAKER:

    So it would be easy for Congress to say, we’re going to authorize it with certain kinds of constraints or protections, any number. They can take all of the constraints that are already part of the court orders.

  • GWEN IFILL:

    But Kate says there’s bipartisan interest in this other thing.

  • STEWART BAKER:

    Well, and there’s bipartisan doubts about this program, especially in the Senate, about USA Freedom.

    (CROSSTALK)

  • STEWART BAKER:

    And so there is genuine debate in the Senate in particular. In the House, the far left and the far right have agreed to dislike this program, and they have the majority at this point.

    So I think the House will pass the USA Freedom bill. I do not think that the Senate will do that.

    (CROSSTALK)

  • GWEN IFILL:

    Well, we’re almost out of time. Do you have a very quick comment?

  • KATE MARTIN:

    I just want to say, on the rule of law question, this interpretation was a secret interpretation adopted by the Bush administration of the law, and then the Obama — and then the Obama administration, when pushed, refused to make that interpretation public.

    (CROSSTALK)

  • GWEN IFILL:

    OK. We’re going to have to leave it there.

    Kate Martin of the Center for National Security Studies and Stewart Baker, former assistant secretary of the Department — Department of Homeland Security.

  • STEWART BAKER:

    That’s right.

  • GWEN IFILL:

    That’s it. I got it all out.

  • STEWART BAKER:

    Thank you.

  • GWEN IFILL:

    Thank you both very much.

  • KATE MARTIN:

    Thank you.

  • STEWART BAKER:

    It’s a pleasure.

  • KATE MARTIN:

    Thank you.

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