Why National-Security Republicans Lost the Patriot Act Debate

By Andrew C. McCarthy

Saturday, May 23, 2015

The NSA doesn’t even know your name.

But you probably don’t know that. It is amazing how little the public has learned from the debate the national-security Right has lost — not is losing but has lost — over the National Security Agency’s “metadata” program.

The information the NSA has collected in bulk from telecommunication-service providers does not include the names of telephone subscribers. They don’t know who you are. It does not include addresses. They don’t know where you are.

Most people still do not know this, which reflects the power of the “domestic spying” canard peddled by Rand Paul’s anti-government extremists and Baby-Boom lefties who apparently still think it’s 1974. The latter camp includes a three-judge panel of the Second Circuit federal appeals court in New York, whose ruling that the NSA program is illegal begins with this astonishing claim: “In the early 1970s, in a climate not altogether unlike today’s, the intelligence-gathering and surveillance activities of the NSA, the FBI, and the CIA came under public scrutiny.”

Seriously? A program that creates a database that does not contain personal identifying information, and that can be accessed only under a statutory process overseen by a special court that Congress established precisely in response to the Seventies spy scandals, is reminiscent of the black-bag tactics that marked those scandals?

As I’ve discussed before, and as National Review’s editors have acknowledged, there is a perfectly reasonable argument that the NSA program is illegal. Not that it is unconstitutional, for the Supreme Court has long held that data about phone calls (as opposed to the content of the calls) have no Fourth Amendment protection; but that it may violate the governing statute, Section 215 of the Patriot Act. That is, one could conclude that, in permitting the NSA to collect millions of phone records, the aforementioned special court (the Foreign Intelligence Surveillance Act – or FISA — Court) unreasonably stretched the governing statute’s concept of what records count as “relevant” to terrorism investigations.

Nevertheless, the Nixon-era domestic spying was an outrage — one that padded the impeachment charges against Nixon and caused many worthy terrorism cases to be dropped — because it was targeted surveillance (including break-ins and thefts) conducted against governing law and without judicial warrant. The NSA program is anonymous surveillance sought pursuant to governing law and permitted by judicial warrant.

For what it’s worth, I think highly of Jerry Lynch, the judge who wrote the main Second Circuit opinion — he was my superior as criminal division chief at the U.S. attorney’s office in Manhattan in the early Nineties. But the analogy of the NSA program to early 1970s intelligence-gathering is a distortion, not an argument.

In point of fact, there is more personally identifying information about American citizens in the phone book than in the NSA program. Have you seen phone directories lately? It’s not like the old days when, as a prosecutor, I kept them stacked next to my desk and often flipped through them . . .  yes . . . without a search warrant. (Don’t tell Rand.) For years now, they’ve been online — see, for example, whitepages.com. (“Find neighbors, distant relatives, or anyone in the country,” the site brags, just by typing in the name or a zip code.)

It was when I was in college, if distant memory serves, that students were asked to submit exams not under their names but under Social Security numbers or student-identification numbers. The idea was that the professor could not discriminate against you because he or she did not know whose paper was being graded. To them, you were just a number and grading was a dry exercise of comparing answers to questions. Somehow, the same kind of anonymity that was impersonal and desirable in the context of exam-scoring has, in the context of impersonal surveillance, been warped into a deeply intrusive invasion of personal privacy. This can’t happen with the NSA program. It is nothing more than a bank of numbers. A huge bank, to be sure . . . just as the online telephone directories are huge databases. All the NSA program can tell the government, though, is if a number called or was called by another number, at what time, and for how long. It cannot tell them that you called another number — to figure that out, they need to take other, legally regulated steps extraneous to the program.

It is an absurd notion — but it does not seem absurd to most Americans because the “domestic spying” fiction has not been effectively rebutted. Though he often chooses to be toxic and divisive, President Obama is a gifted speaker. Think of the good that might have been done by one simple, unapologetic speech that explained the lengths to which the NSA has gone not to violate the privacy of Americans.

Or maybe not. The “domestic spying” fears have a resonance they would not otherwise have because the Obama administration abuses its powers. It has an undeniable track record of using the IRS, the Justice Department, and other federal agencies to persecute political opponents. While serving as Obama’s secretary of state, Hillary Clinton, the Democrats’ likely presidential nominee by acclamation, even threatened to use “old fashioned techniques of peer-pressure and shaming” in order to suppress constitutionally protected speech disfavored by the administration.

The public does not trust this government to refrain from abusing its powers. If you tell people there are no known cases of the NSA using the metadata program to spy on Americans, they understandably assume that such cases simply haven’t come to light yet, not that they haven’t happened.

There is a strong counter-case to be made. Rand Paul is laughably wrong when he insists the NSA program violates the Fourth Amendment — something even the Second Circuit did not claim. Like progressives, Senator Paul likes to make up his Constitution as he goes along. Progressives claim the document is “organic,” so at least they are honest about the fact that they are changing it — not putting on “constitutionalist” airs as Paul does.

Yet the NSA program’s advocates have failed to offer a compelling defense. We have fallen into the trap of arguing the case on the opposition’s terms. They claim that the program has not stopped a single terrorist attack. Program advocates counter that it has, but this is not only hard to prove, it’s beside the point.

First, intelligence doesn’t work that way: It is a mosaic drawing on several sources, and it is rare that one piece of it completes the picture. More important, the principal purpose of the program is not to thwart individual attacks but to map terror cells and uncover their support networks. Consequently, the program could be quite valuable even if it never stopped a single terrorist attack. That is vital at a time when the jihadist threat is intensifying but gaps in our intelligence collection are widening because of wrong-headed Obama policies (e.g., the decrease in interrogations of captured terrorists and the discouragement of focus by our intelligence analysts on jihadist ideology).

Advocates have also been counterproductively guarded in explaining why they need a full dataset: namely (we can infer), so they can run algorithms against it, based on known terrorist communication patterns, and thus discover latent terrorist communications. If this were better understood, most Americans would no more object to the anonymous storage of their phone number’s records (which cannot be further accessed without judicial supervision) than they do to the government’s possession of phone books that list their names and addresses (which are regularly accessed with no judicial supervision). Almost all of us would like to help the government identify and stop terrorists, especially if there is no risk to ourselves in doing so.

The reluctance to talk openly about intelligence methods is understandable. Whatever the government tells the public it perforce tells the terrorists. But it’s not like transcontinental jihadist networks have an option to cease communicating just because they know our government is watching. What does the NSA gain by preserving the secrets of its methodology if the cost is losing the program?

With the clock running down on a June 1 deadline when the Patriot Act provision that authorizes the NSA program is set to expire, the options are not good. Congressional advocates of the metadata program want it reauthorized, but they’ve lost the debate and the prospects for a quick turnaround are nil. The compromise USA Freedom Act, overwhelmingly approved in the House, will effectively dismantle the program because it leaves the records in the possession of the telecoms and does not require that they be preserved for any length of time. But some telecoms will preserve records, which is better than nothing; and although the USA Freedom Act leaves much to be desired, accepting it would pave the way for approval of other significant Patriot Act provisions that would otherwise expire. The FBI is justifiably concerned that the authorities contained in these provisions, which are uncontroversial, could be lost in the ongoing standoff.

The best thing that could happen in this bleak scenario would be a brief extension that would enable program advocates to do better than the feeble job they’ve done to date defending the program. In the alternative, it is nearing time to hold our noses, accept the USA Freedom Act, and get cracking on a compelling political and legal argument to restore the program — one that can change minds in Congress and be signed by the next president.

The depiction of national-security agents who are trying to protect American lives as seventies-style rogues tearing the Constitution to bits is a smear. But a smear is something, and something always beats nothing. The metadata debate is not over, but this battle is. It’s time to accept defeat gracefully, get as much as we still can for national defense, and resolve to do better in the next round.