Does Panel Report Sound the Death Knell for the NSA’s Metadata Program?

by Andrew C. McCarthy

At the Lawfare blog, Ben Wittes offers some characteristically smart early thoughts on Liberty and Security in a Changing World, the report just released by President Obama’s “Review Group on Intelligence and Communications Technologies.” Ben’s early diagnosis is: very awkward.

The report was produced by a small group: academics Cass Sunstein, Geoffrey Stone and Peter Swire, as well as former Clinton counterterrorism czar Richard Clarke and Obama’s former acting CIA director Michael Morell. (Yes, that would be the Michael Morell who purged references to al Qaeda from the CIA’s infamous Benghazi “talking points.”) The report is awkward because it undercuts a number of positions previously taken by the Obama administration, including the president’s defense of the NSA’s controversial telephony metadata program, which collects records of telephone usage by hundreds of millions of Americans.

In what will undoubtedly be the most prominently covered aspect of the panel’s analysis, the report concludes that the metadata program “was not essential to preventing terrorist attacks.” It elaborates that the same information collected under the program “could readily have been obtained in a timely manner” by using less controversial means.

I’ve supported the metadata program and explained – both here and elsewhere – why federal district judge Richard Leon’s recent ruling that the program violates the Fourth Amendment is hogwash. Nevertheless, I’ve also argued that the program cannot survive politically unless a compelling case is made that it materially improves our safety from terrorist attacks – a case that can only be made by government officials with access to the highly classified information on what the program has accomplished.

To this point, the president has clearly failed to make that case. Given the make-up of the panel, I expected to disagree with several of its recommendations. Still, whether right or wrong (and I cannot offer an opinion without studying the report further), the panel’s skepticism about the metadata program’s effectiveness could be the last nail in the program’s coffin.