Senator Patrick Leahy questioned how the Constitution allows the National Security Agency's bulk collection of U.S. telephone records and repeated his calls for President Barack Obama's administration to end the program during a hearing Wednesday.
The Obama administration should heed the recent advice of the U.S. Privacy and Civil Liberties Oversight Board (PCLOB) and end the phone records collection program, said Leahy, a Vermont Democrat.
"Is there anything in the U.S. Constitution that gives authority to the Congress to pass a law that enables and empowers an executive agency such as the NSA ... to open, to listen or to seize either the mail, the phone conversations or the electronic conversations of U.S. citizens?" asked Leahy, chairman of the Senate Judiciary Committee.
Leahy called on Congress to vote to end the telephone records program. Congress should "ensure that this legal theory is not used by any administration to spy indiscriminately on its citizens," he said. The U.S. Department of Justice's current interpretation of the antiterrorism Patriot Act would allow the government "to acquire virtually any database that it might someday, down the road, for some reason, somehow find useful," Leahy added.
U.S. Attorney General Eric Holder, testifying at the DOJ oversight hearing, defended the metadata collection program, repeating the Obama administration's view that the data collection is legal, despite the PCLOB report last week saying it is not.
Fifteen judges in the U.S. Foreign Intelligence Surveillance Court, plus two district court judges, have found the NSA phone records program legal, Holder noted. "I believe they are correct; it is an appropriate use, in a constitutional sense, of the government's power," Holder said. "But the question is ... just because we can do something, should we do it?"
But Holder received mixed messages on the NSA phone records program from members of the Senate Judiciary Committee. While Leahy repeated his call for an end to the program, others defended it. Republican Senators Orrin Hatch of Utah and Jeff Sessions of Alabama both said they believe the phone records program is legal.
Several other members of the Judiciary Committee didn't question Holder on the NSA program.
Hatch suggested the PCLOB exceeded its mission by weighing in on the legality of the NSA program. The board should stick to making policy recommendations, he said. And while the board questioned whether the program is effective in fighting terrorism, Hatch questioned how critics could determine its value by finding "proof that this program alone prevented an actual attack."
"I think we've fallen into a false analysis there," Holder said. "I'm not sure that's the only way by which you can judge the validity or the value of the program. There's a mosaic of things we take into determination."
Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is email@example.com.
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