The recent National Security Agency data collection revelations have created some surprising political bedfellows, both in support of, and in opposition to the secret surveillance programs.
Bills have been proposed calling for the programs to be curtailed or, at least, illuminated. We trust that before deciding which bills to vote for, or against, our elected representatives will thoroughly investigate the purported effectiveness of such programs versus warrant procedures.
Stories of NSA data collection first surfaced in 2005. Since then, numerous credible whistleblowers, including Edward Snowden, Thomas Drake, Russ Tice and William Binney, have all said essentially the same thing: our government has been and continues to collect our private phone and Internet content, emails and conversations, in bulk, to be reviewed only if needed. The government denies such capabilities, but 26 senators recently wrote a letter demanding to know what types of records and information the NSA is collecting. Astonishingly, some of these same senators sit on the primary oversight committee, and even they do not know the full extent of these programs.
Arguing in support of these secret programs, Sen.Dianne Feinstein and U.S. Rep. Mike Rogers, the chairs of the Senate and House Intelligence committees, quickly pointed to the arrests of Najibullah Zazi, a New York subway bomber-wannabe, and David Headley, a mastermind of the Mumbai massacre.
Just as quickly these program “successes” have been de-bunked. The critical email address that led to Zazi was not obtained from secret programs but from a laptop confiscated by British intelligence (i.e. “old fashioned” police work). Similarly, we learned that Headley was well known to the Drug Enforcement Agency, State Department and FBI Counter-Terrorism Task Force years before Indian intelligence recorded his voice ordering the Mumbai terrorist to murder 166 people and years before he participated in the plan to attack a Danish newspaper.
Yet claims of the secret programs’ effectiveness continue. NSA Director Keith Alexander told the House Intelligence Committee that the surveillance programs have disrupted no fewer than 50 terrorists plots. Even so, some senators are still skeptical, especially coming on the heels of “the least untruthful” statements by NSA officials and misleading “fact sheets” taken down from the NSA website.
Sens Ron Wyden and Mark Udall, both members of the Senate Select Committee on Intelligence, wrote to the NSA claiming that the usefulness of bulk data collection was being “conflated in a way that exaggerates the value and usefulness of” the program. Further, the program played little or no role in most of these plot disruptions. “In fact, we have yet to see any evidence that the bulk phone records collection program has provided any otherwise unobtainable intelligence.” And, “ (i)f there is additional evidence for the usefulness of the bulk phone records collection program that we have not yet seen, we would welcome the opportunity to review it.”
Sens. Wyden and Udall make a compelling Fourth Amendment argument that deserves a thorough and appropriate review. The Select Committee on Intelligence should assert the full measure of its power to obtain all evidence of any secret programs’ claimed effectiveness. But if such evidence was otherwise obtainable (i.e. through use of individual FISA warrants), the bulk data collection programs should be discontinued. There is no reason to collect information on Americans in bulk, much of it private, if there is a less obtrusive alternative. It is not as though a FISA warrant is difficult to obtain; last year, 1,856 FISA warrants were requested, and all but one were granted (the other was withdrawn). Over the 34-year history of FISA, the court has denied only nine of 33,949 warrant requests.
American democracy is at a critical juncture and it is time for our representatives to act on their oath to uphold the Constitution. By doing so, their constituents will not have to learn from whistleblowers what is happening in secret.
Curt Loub, 217 Drake Drive, is an attorney.