Obama's NSA Review Panel: We Didn't Recommend Killing Phone Dragnet

Panelists say public was confused by recommendation 'this program should be terminated.'

Former Central Intelligence Agency official Michael Morell speaks during a hearing of the Senate Judiciary Committee on Jan. 14, 2014, in Washington, D.C.

Former Central Intelligence Agency official Michael Morell speaks during a Senate Judiciary Committee hearing on Jan. 14, 2014, in Washington, D.C. "There isn’t a sharp distinction between metadata and content," he told senators.

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The five men who prepared a report advising President Barack Obama to end the National Security Agency's dragnet collection of phone metadata said Tuesday they don't actually want to end the bulk retention of phone records.

Rather, they clarified during a Senate Judiciary Committee hearing, they believe the current phone metadata program should continue, with the significant distinction being that private companies retain the information for the NSA.

"What we thought in reading the report was that the group didn't want the program to continue," said Sen. Dianne Feinstein, D-Calif.

Feinstein, a vehement supporter of the program, proceeded to gather assurances Tuesday from each panelist that they do indeed want the program to continue.

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"We shift where it stays," explained panelist Geoffrey Stone, a professor at the University of Chicago's law school. He said the program, however, would continue and described the retention of phone records as "critical to protect the national security of the United States."

One reason for widespread confusion about the panel's position is that the men wrote in their December report the NSA program had not prevented a terror plot and advised "this program should be terminated as soon as reasonably practicable."

The report suggested that phone companies instead retain the data, which would be acquired by the NSA using Foreign Intelligence Surveillance Court warrants in most, but not all, cases.

Michael Morell, acting director of the Central Intelligence Agency for two stints during the Obama administration, conceded the 7-year-old program has not prevented a terror attack, but speculated Tuesday it might have prevented the 9/11 terror attacks if it had been in place before 2001.

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The other four panel members declined to endorse that speculation when pressed by Sen. Lindsay Graham, R-S.C.

"It's impossible" to say if the phone database would have prevented 9/11, said panel member Richard Clarke, a retired counterterrorism official. "We're not specialists in the details of 9/11," said Harvard Law School professor Cass Sunstein.

Major phone carriers were contacted by the review group about storing customers' phone data for the NSA, Stone said.

"They obviously would rather not," he said.

If the phone companies are either convinced or compelled to store records for longer periods of time than they currently do, that would eliminate an important "de facto civil liberties protection," Michelle Richardson of the American Civil Liberties Union told U.S. News in December. Not only would the NSA be able to review whom you called and when, but participants in a wide range of civil and criminal disputes would be able to as well.

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The NSA stores phone metadata for five years. Verizon Wireless currently stores call records and location data for one year, AT&T stores that information for five years, Sprint Nextel does so for 18 months and T-Mobile retains call records up to 10 years and location information for 180 days.

Sen. Chuck Grassley, R-Iowa, seemed to share Richardson's skepticism. Private retention of metadata may cause "as many privacy problems as it solves," he said, saying companies seem to be "allowing their customers' information to be hacked on a regular basis."

Clarke addressed that later in the hearing, saying, "There's been a very significant information compromise at NSA: They had over 1 million documents stolen," apparently referencing whistle-blower Edward Snowden, who initiated the current surveillance debate with leaks in June.

Obama plans to announce Friday if he will adopt any of the 46 recommendations from the advisory panel.

Morell came across as the most hawkish member of the panel during the Tuesday committee hearing.

"One of the things I learned in this process," he said, "is there is quite a bit of content in metadata."