Transcript: Testimony of Steven Bradbury on possible reforms to the NSA surveillance programs – Oct. 29, 2013

Partial transcript of testimony of Steven G. Bradbury, Partner at Dechert LLP, on possible reforms to the NSA’s surveillance programs before the House Intelligence Committee on Oct. 29, 2013:

…The independent judges of the FISA court have repeatedly affirmed the legality of the NSA programs, and I believe this committee well knows the continued importance of the programs for protecting the United States and its allies. These tools are among the most effective we have for detecting new connections with foreign terrorist organizations. For that reason, it is my strong conviction that the major proposals for curtailing, restricting or modifying existing FISA authority should be rejected.

The most sweeping proposal would restrict the use of Section 215 to acquiring only individual business records that directly pertain to a specific person under investigation. A similar proposal would limit the NSA to conduct one-by-one queries of the phone companies call detail databases only while the data is retained by the company in the ordinary course of business. These proposals would kill the telephone metadata program by denying the NSA the broad field of data needed to conduct the link analysis and contact chaining that only the current program enables. At the same time, denying the NSA authority to acquire and retain metadata in bulk would preclude any historical analysis of connections and patterns between a terrorist phone number and other yet undiscovered numbers, which is among the most valuable capabilities of the 215 program.

Indeed, any proposal to shorten the period of data retention from the current 5 years should be approached with great care because it would degrade our ability to discover historical connections. A less sweeping but still significant restriction would require the data to be maintained under the control of the telephone companies. The current program enables the NSA to take the metadata from multiple companies in order to preserve it in a segregated and secure manner and combine it together in a form that is efficiently searchable. Ceding control of the combined database to the phone companies would presumably require the involvement of a private third-party contractor since no single company has the ability to maintain and aggregate all of the data in a searchable form. Any such arrangement would be distinctly less efficient, less secure, and less subject to effective oversight than the current program. Those are not desirable goals, both for national security and for protecting access to the database and preventing its abuse. Another proposal would require court approval for each query of the database. That would hamper the speed and flexibility of the program and if applied to second and third hops from the original seed number would destroy much of its utility.

Requiring court approval of each reasonable suspicion determination would also impose a legalistic, judicial overlay on a judgment more appropriately made by seasoned intelligence analysts. Requiring approval by the Justice Department’s National Security Division would similarly interpose a lawyer’s sensibility in place of the practical judgment of intelligence officers. One further proposal would attempt to convert FISA into an adversary process by establishing some form of public advocate, for example, as an appointee of the court with the power to review and oppose each FISA application.

These proposals would raise significant constitutional concerns both if the President is required to share the most sensitive national security secrets with an adversary and if the public advocate were given the power to appeal a decision of the FISA court over the objections of the executive branch. The public advocate would lack the Article III standing necessary to initiate an appeal. And if intended to act as an independent officer within the judicial branch empowered to challenge the rulings of the FISA judges and appear in court as an adversary to the executive, the public advocate would fall outside the three-branch framework established in the Constitution. Were the position modified to eliminate these constitutional problems, it’s doubtful it would achieve what the proponents hope for. If part of the executive branch, the advocate would be answerable to the President. If employed by the court, the advocate would be little different from the existing permanent legal advisors who already prepare separate in-depth analyses for the judges whenever an application raises significant questions.

The recently disclosed FISA opinions amply demonstrates the current court is anything but a rubber stamp. Many of these reform proposals run the risk of recreating the type of cumbersome, over-lawyered FISA regime that proved so inadequate in the wake of 9/11. If our nation were to suffer another catastrophic attack, I fear that such a constrained judicial process would break down, forcing a future President to fall back on Article II authority to conduct the surveillance necessary to protect the country. That would truly be unfortunate but it’s a stark possibility if some of the current proposals were adopted.

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