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The USA Freedom Act Is a Mistake
I worry that the representatives who voted to pass the USA Freedom Act in the House do not understand its full import in terms of our national security. The bill practically repeals Section 215 of the Patriot Act, but makes it appear as if those who voted for the bill advanced security in some way. The result of the legislation’s enactment, however, would not be significantly different than if Section 215 were simply allowed to expire. Even before the Patriot Act, the government could get a warrant from a judge to get call metadata from a phone company. The Freedom Act requires phone companies to keep the calling records, but they do that already in order to bill customers. Thus, the Freedom Act eliminates the advantages of Section 215 and practically restores the system that existed before. It is politically superficial but also substantively destructive.
As we saw on 9/11, the previous system failed. The reason why is that it slowed everything down (as would the Freedom Act). If our intelligence agencies have a lead — say they capture a terrorist leader or intercept his calls — they will have to act quickly to see what other phone numbers and e-mail addresses the leader contacted to discover his broader network. The other terrorists, of course, will be switching to other numbers and addresses as soon as they suspect that one of their number has been compromised. Taking the time to (a) prepare a request for a warrant; (b) get it approved by a judge; and then (c) search through multiple phone company databases, will give the terrorists time to hide and cover their tracks. Speed is of the greatest essence exactly when we are trying to find the links in the U.S., where the terrorists will be closest to their targets and where our defenses are at their weakest.
If the program under Section 215 had been in effect before 9/11, the government could have quickly searched the databases to discover the links between the two hijackers that the CIA knew had entered the U.S. That could have quickly led the government to the rest of the hijackers (just as those calling, e-mail, and financial records allowed the FBI to reconstruct the 9/11 terror cells within a day or so after the attacks). Another problem is that having the database dispersed among the different phone companies means our government cannot be sure that it has searched thoroughly for all of the possible links. The value of these metadata searches is reduced if the database is not as complete as possible. The databases will also be in private hands, where they might easily be open to invasions of privacy and penetration by foreign intelligence services. Section 215 addressed those problems. The USA Freedom Act doesn’t. This is a step backwards.
Published in Foreign Policy
To be clear, are you saying that we should simply let section 215 expire, rather than pass this Freedom Act? If so, then I agree. If you think we should be keeping 215, then you disagree with the recent appellate court’s decision. Do I have this right?
Or they could have just enforced immigration law and rounded up those here on student visas when those visas expired. Or, even better, they could have begun their investigations of the hijackers who were taking flying lessons with the exception of taking off and landing that tipped off to the instructors that something was fishy. Or they could have done any number of things that would negate the need for the federal government to establish a metadata collection scheme that views Americans as targets for simply owning a cell phone, having an email, or sending text messages. Read the 9/11 Commission report and tell me that the attack could only have been stopped by the unchecked collection of metadata.
Yes, but my understanding is that it likely would have failed with Section 215 in place as well. As with most subsequent attacks, these guys were quite conspicuous about their activities (“Thanks, but I’m only interested in learning to fly a 757… can we skip the landing part?”) some of which were reported to law enforcement but inadequately followed up on.
Unless I missed something, it wasn’t a failure to collect and search through information that led to 9/11, but a failure to imagine such a plot in the first place.
I’m unclear as to why we’d wait until after the capture to seek such information.
This is one of those rare instances where no one is entirely wrong — and everyone is a little bit right. John Yoo’s explanation of why the USA Freedom Act would make things more difficult for our intelligence agencies is dead-on. But it’s also true, as Tom points out, that back in 2001 our intelligence agencies would have blown it even with Section 215 because they didn’t really know what they were looking for. And the first rule of intelligence is: You must know what you’re looking for to find it.
My guess is that now — for all their faults — our intelligence agencies at least have a better idea of what to be looking for to stop terrorist acts. This is no time for Congress to do anything that might inhibit their work.
Assuming that we are only talking about metadata such as phone numbers and call times, I agree. If the House and Senators Cruz and Paul were serious about this issue, they would have helped craft a more thoughtful reform. Congress could require that the NSA restrict access to the databases to searches with a warrant, thereby preserving speedy access and adding judicial oversight. This appears to be a show put on for the growing block of libertarian-leaning voters that will add very little privacy since the phone companies have all this data sitting on their servers anyway.
The problem is trust. I have none when it comes to government over-reach and accountability. Too many agencies doing far more (and some far less) than their charter and constitutional privilege allows.
You tell me that the collection of information is strictly for intelligence and security purposes so we will all be safe and that checks and balances are in place to prohibit wrong-doing. But, again the problem of trust arises, since we know that these agencies generally adopt the “it’s easier to ask for forgiveness than for permission” mantra.
I feel like we are burning a freedom bridge that we will never be able to rebuild again.
I am with HeartofAmerica, I have been in enough federal offices to know that these federal officers that we entrust ourselves to are no more virtuous, or even competent, as a group than the people in any other human enterprise. Lois Lerner and her ilk have taught us an important lesson in the corruptibility of government. NSA proponents like to paint the issue as one between perfect safety or a marginal threat of isolated bad behavior impacting few if any people. In practice, with an abstract construct of civil liberties on the one side and a POTUS that holds one’s career and pension in a tight grip on the other side, abuses are all too common.
The problem is very much trust. Not that we feel that people in the NSA or IRS are far worse than the rest of us, but that we know absolutely that they are no better. When we join the Founders in treating men as men, not angels, we come closer to the liberty they sought for us.
The federal governments militarization of civilian agencies is another example of gross overreach. It used to be that if the EPA wanted to come shoot my dogs and submit my family to a perp walk they needed the cooperation of judges and law enforcement professionals.
The FBI labs spent the 50’s and 60’s knowingly and systematically overstating the significance of hair follicle analysis to assure convictions. They were considered a bastion of integrity, then.
Wasn’t the lack of sharing data between agencies also a contributing factor. DHS was supposed to fix that, but my understanding is that it largely hasn’t.
John Yoo, you are willing to throw away the freedoms handed down to us, for the imagined safety of the moment. A greater man that you had something to say about that.
?Then why is the NSA also collecting this info. ?Wouldn’t a warrant to a judge be sufficient to allow such inspections. And no FISA secret court that rubber stamps all warrants but a real court with real judges.
The argument that 9/11 happened because of lack of tools to find it is beyond real comment. The FBI agent who was hollering about the one jihadi training in MN was denigrated and pushed to the side by colleagues and higher-ups. The vaunted TSA in 14+ years has never caught a single terrorist, even when having the ideal opportunity (in NYC). Yet we are subjected to illegal searches and seizures by them regularly, not to mention the overall indignity of submitting to such invasions of our persons and property.
The operating maxim appears to be that the government’s ability to perform is inversely related to the power it is granted.
That is a great point Dev. Why is it that we must submit to the state as though we are suspects because we merely hold a plane ticket? These kinds of measures do nothing to stop terrorists and they will only serve to hem up innocent people for petty violations.