Further on Kevin’s point, the principal reason the FBI did not locate Khalid al-Midhar and Nawaf al-Hazmi in the critical two weeks before the 9/11 attacks was the once-infamous “Wall.” During the 9/11 Commission hearings all those years ago, I recounted this monstrosity: internal regulations self-imposed by the Clinton Justice Department that prevented the intelligence community (including the FBI’s national security division—then known as the foreign counterintelligence division) from sharing information effectively with the criminal investigations side of the FBI’s house.
In “Wall Nuts”, a refreshingly candid 2003 essay for Slate, former NSA general counsel Stewart Baker told the infuriating story.
Like Steve King, one of my favorite congressmen, I have argued in favor of the bulk-data collection. In my view, the intrusion, which does not implicate the Fourth Amendment even though it certainly raises legitimate privacy concerns, is minimal and adequately covered by layers of inter-branch oversight. Nevertheless, as I’ve said a number of times, national security programs, which require unusual degrees of secrecy to be effective, thus hinge on two political considerations: (a) our level of trust in the government, and (b) our level of conviction that the program meaningfully contributes to our security. To make the legal case that the program does not violate privacy laws does not make the political case that the program is worth the trouble and the risk that it could be abused. Program proponents are still losing the political case.