Justice Department, Intelligence Agency Lawyers Defend Retention of Secret Surveillance Data
By Jennifer Koons | November 4, 2013 1:56 pm

Counsel for the Justice Department’s National Security Division joined senior lawyers for the various intelligence agencies in arguing before an oversight board the need to retain the secret collection of telephone records.

Privacy and Civil Liberties Oversight Board hearing on Nov. 4, 2013

The five-member Privacy and Civil Liberties Oversight Board, whose members are appointed by President Barack Obama but report to Congress, invited the attorneys to a public hearing this morning to answer questions about Section 215 USA PATRIOT Act and Section 702 Foreign Intelligence Surveillance Act.

“If the data is retained for a shorter time, then our ability to analyze is also reduced,” said Patrick Kelley, acting general counsel for the Federal Bureau of Investigation. “In the long run, the more dots we have…..then the better we will be at connecting them.”

All of the panelists suggested they would consider increasing transparency with Director of National Intelligence General Counsel Robert Litt noting: “we are open to considering whether there is some value in formalizing or making more public the rules we do have about protecting personal information on non-U.S. persons.”

During a press briefing this afternoon at the Department of Justice, Attorney General Eric Holder today also said the administration was committed to reviewing its much scrutinized surveillance practices.

“We are in the process of conducting a review of these surveillance activities to make sure we’re striking an appropriate balance between keeping the American people safe, and our allies safe, and also regarding the civil liberties and privacy of those same people,” the Attorney General said at an event announcing a high-profile settlement against a subsidiary of Johnson & Johnson. “We’re in conversations with our partners in Europe and other parts of the world to make sure that we strike that appropriate balance.”

Tensions have been on the rise with European leaders following recent revelations that the National Security Administration monitored German Chancellor Angela Merkel’s official cellphone.

Patricia M. Wald, a retired judge and member of the oversight board, asked Deputy Assistant Attorney General for the National Security Division Brad Wiegmann how the Justice Department’s stance would change if the Supreme Court took another stab at its 1979 decision in Smith v. Maryland, Fourth Amendment because of Smith v. Maryland (1979), which the government and FISC court have used the secret phone records program.

Deputy Assistant Attorney General for the National Security Division Brad Wiegmann

“Would programs like 215 lose their legal legitimacy” if some situations are thought to have legal privacy value, Wald asked, mentioning the Supreme Court’s 2012 decision in U.S. v. Jones in which the majority held that police violated a suspect’s Fourth Amendment rights when they attached a GPS device to his car, tracking his movements for almost a month.

“I think this remains to be seen,” Wiegmann said. “The Jones case was based on physical intrusion, which we would not have in this case so we don’t think it’s controlling.”

The board has not set a deadline determining the impact of the surveillance programs on civil liberties.

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