NSA Defenders Offer Weak Rebuttal Of The RNC's Condemnation Of Mass Surveillance Programs

from the 9/11-ad-infinitum dept

Soon after the Republican National Committee released its surprising condemnation of the NSA's spy programs, a loose confederation of NSA apologists and assorted hangers-on (but only one current legislator) fired off a response letter that claimed everything about the RNC's letter was wrong.

Stewart Baker, one of the signers, announced it at Volokh Conspiracy's new home at the Washington Post:

Almost immediately after the Republican National Committee adopted an error-filled resolution attacking the NSA and its telephone metadata program, current and former GOP officials took a strong stand against the resolution.

Well, as "strong" as a stand can be with only one current government worker signing it -- that being Mike Pompeo, one of the members of the House Intelligence Committee. Everyone else are former members of the security beltway, having maintained high-ranking positions in the CIA, DHS and DOJ. So, that particular response is hardly surprising. Michael Hayden (and his boss, Michael Chertoff) and Stewart Baker are the more recognizable names attached.

The "strong stand" reads as follows (with periodic interruptions by this writer):

Dear Chairman Priebus:

As Republicans who are familiar with the threat that terrorism still poses to this country, we are compelled to dissent from the ill-considered resolution adopted by the Republican National Committee on January 24 by voice vote.

The Republican National Committee plays a vital role in political campaigns, but it has relatively little expertise in national security. Unfortunately, that lack of expertise is on full display in the resolution. The RNC condemns “the secret surveillance program called PRISM,” and claims that it “monitors [the] searching habits of virtually every American on the internet.” In fact, there is no program that monitors the searches of all Americans. And what has become known as the PRISM program is not aimed at collecting the communications of Americans. It is targeted at the international communications of foreign persons located outside the United States and is precisely the type of foreign-targeted surveillance that Congress approved in 2008 and 2012 when it enacted and reauthorized amendments to the Foreign Intelligence Surveillance Act.

The NSA leaks have shown that programs don't need to be "aimed" at Americans to collect the data and communications of Americans. As long as something is considered "relevant," it can be collected. Not only that, but tons of "incidental" collection occurs as a nature of the untargeted dragnets. The NSA may have minimization processes in place, but they're not infallible and can be easily abused. So, for all the strong wording, this paragraphs reads like little more than the NSA party line. We don't target Americans. (We just somehow end up with a lot of their stuff.)

The errors in the resolution do not end there. The resolution falsely implies that NSA collects and has easy access to telephone metadata, when in fact every search of the data requires a reasonable and articulable suspicion and is strictly limited by the courts, with oversight by the intelligence committees of both houses of Congress.

We've discussed countless times how the intelligence committees' "oversight" has been anything but for years now. And the NSA does have easy access to the metadata. There may only be 20 or so people who can make RAS determination, but there are "up to 125 analysts" who have access to the collected metadata. Accessing the collection is no longer "strictly limited" by the courts. It was at one point, shortly after Judge Walton called a temporary halt to the program in 2009 because of wide-ranging abuse by the agency since the program's inception. These limitations are mentioned in court orders from 2009-2010, but are completely missing from the 2013 Verizon court order leaked to The Guardian back in June. The court appears to have gone back to simply approving the collection every three months and hoping that the NSA isn't backsliding to its pre-March 2009 habits.

The resolution says that the program violates the Constitution, something that will come as news to the many judges who have found to the contrary – and to the Supreme Court, which has said that such limited billing data is not protected by a constitutional expectation of privacy. The resolution’s claim that the program violates section 215 also runs counter to the rulings of practically every court to address the issue.

The "expectation of privacy" is due for a revisit, if for no other reason than the NSA's bulk record collections rely on a questionable reading of pen register/trap and trace statutes -- targeted but expansive collection methods -- that were somehow extrapolated (via FISC Judge Kollar-Kotelly) to cover untargeted and expansive collection methods. As for "many judges" finding the collections constitutional, that's not necessarily true. At this point, we have two federal judges who have issued opposing rulings on that specifically in the past few months. Prior to that, anyone seeking to challenge the NSA's programs simply wasn't granted standing, which makes it nearly impossible to build a comprehensive case history. Having no judge state outright (prior to Judge Leon) that the program is unconstitutional is not the same thing as having "many judges" finding to the contrary.

As far as we can tell, none of these facts was presented to the RNC before it adopted the resolution. It is a shame that the resolution reached the Committee without correction of its many errors.

Worse, the RNC resolution threatens to do great damage to the security of the nation. It would be foolhardy to end the program without ensuring that we remain safe from attack. This database provides a uniquely valuable capability for discovering new phone numbers associated with international terrorist organizations, including numbers that may be used by terrorist cells within the United States. Former Deputy Director of the CIA Michael Morrell has testified that having this capability might have prevented 9/11 and could help to prevent the next 9/11.

This again? "Security of the nation." "Prevented 9/11." "Prevent the next 9/11." All claims that are easily debunked. The message is still as stupid as it ever was: trust the same agencies that couldn't prevent the first attack to prevent the next one.

This is not a Democratic or a Republican program. Protecting Americans from terrorism should not be a partisan issue.

Correct, and the one caveat that cannot be completely detached from the RNC's letter.

The program was first launched under President George W. Bush. It was approved by Congressional leaders of both parties. And for good reason. It helps to keep Americans safe.

It was approved by lawmakers operating in a panic after a horrendous terrorist attack, not exactly the best climate for anyone to consider the possible negatives of handing over considerable power to national security agencies and the government itself. No one wanted to be the representative who failed to act or appear to place political partisanship above public safety. Portraying this as some sort of non-partisan "meeting of the minds" glosses over the reality of the situation: panicked legislators shoving through horrendous legislation in order to "do something" in response to the 9/11 attacks. There's nothing heroic or otherwise admirable about the passage of the PATRIOT Act.

It may be appropriate to modify the program in certain respects, if that can be done without a significant loss in effectiveness, but abolishing it without any idea how to close the intelligence gap that 9/11 exposed is not a recipe for partisan advantage. It is a recipe for partisan oblivion.

Count us out.

9/11 only exposed the fact that our nation's intelligence and investigative agencies had access to plenty of data before the attack but collectively made a series of bad decisions that allowed the attacks to occur. The "intelligence gap" was between agencies, not between agencies and their targets. Sweeping up millions of unrelated metadata records doesn't close that gap. All it does is make it harder for those sorting through the mess for actually useful intel to do their jobs.

So, the response is the sort of thing you'd expect from the signing members -- some 9/11 stuff and some "it's all legal" rhetorical flourishes. I'd like to issue this challenge to surveillance advocates -- compose a powerful statement defending the NSA's programs without using the phrase "9/11" for once and see how that goes. It's slipped past "talking point" to "crutch" at this point. This itself would be bad enough, but it's also demonstrably wrong -- and its inevitable deployment in defense of bulk records gives its users all the credibility of "doctors" who specialize in homeopathy.

Filed Under: mike pompeo, nsa, party politics, republican national committee, republicans, rnc, stewart baker, surveillance