Law & the Courts

Why Should Terrorists Be Harder to Investigate than Routine Criminals?

The 9/11 attacks exposed the dangerous wall separating the intelligence and law-enforcement communities. In response, Congress developed a number of tools to eliminate those barriers so that critical information could be timely and appropriately shared to address radical Islamic terrorism. Among them was Section 215 of the USA Patriot Act.

In 2006, the National Security Agency transitioned the bulk telephone-metadata acquisition program authorized under the president’s Terrorist Surveillance Program to the business-records court-order authority of Section 215. Since shortly after 9/11, this program has been helping to keep Americans safe by acquiring non-content call records, i.e., telephone numbers and the date, time, and duration of a call. This program has yielded invaluable intelligence that has helped prevent attacks and uncovered terrorist plots. Nevertheless, the Obama administration has built up unnecessary barriers that sacrifice the fragile operational efficiency of the program without actually accomplishing anything in terms of data security.

Meanwhile, the threat level has only increased. On the heels of an ISIS-inspired attack in Texas, the administration has greatly increased security at military bases, airports, railroads, and other potential targets. Just this year, the FBI has so far arrested at least 30 Americans for planning ISIS-inspired attacks in the U.S. FBI director James Comey recently issued this chilling warning:

The siren song sits in the pockets, on the mobile phones, of the people who are followers [of ISIS] on Twitter . . . It’s almost as if there’s a devil sitting on the shoulder, saying “Kill! Kill! Kill! Kill!” all day long.

Most people would agree it should not be more difficult to investigate a terrorist plot than check fraud. As the National Academy of Sciences noted in its recent report, Section 215 of the Patriot Act simply “allow[s] the [Foreign Intelligence Surveillance Court] to require production of documents and other tangible things determined relevant to national security investigations, much like other courts do in criminal and grand jury investigations.” But unlike in the criminal context, Section 215 is subject to extraordinary oversight by the Executive and Judicial branches, as well as minimization procedures to protect Americans’ civil liberties. Moreover, information acquired under Section 215 can be accessed by only a limited number of trained intelligence professionals and only after the government has demonstrated to the court that there is a reasonable, articulable suspicion that a number or identifier is associated with a specific foreign-terrorist organization.

Compare this with how a local district attorney can obtain the same type of information in a routine criminal case. He issues a grand-jury subpoena for phone records, which requires only a showing that the records are relevant to an investigation. The subpoena could require the production of much more detailed information than is acquired under Section 215, such as names and addresses of the callers. Indeed, the U.S. Drug Enforcement Agency and Internal Revenue Service can obtain telephone call records and bank records with an administrative subpoena without even a prosecutor’s approval, much less approval by a judge. The Supreme Court has long held this process constitutional under the Fourth Amendment because such information is already in the hands of a third-party — the phone companies — and therefore, a customer has no reasonable expectation of privacy in that information.

But legislation known as the USA Freedom Act would prevent our intelligence officers from obtaining information in this manner at all. As former federal judge and attorney general Michael Mukasey said:

The bill’s imposition of the warrant requirement on the NSA would be more burdensome than what any assistant U.S. attorney must do to get metadata in a routine criminal case, which is simply to aver that the information is needed in connection with a criminal investigation — period.

The bill would also eliminate entirely the database through which the NSA is able to quickly access information to “connect the dots” in order to prevent terror attacks. This is significant because, as the National Academy of Sciences explained,

in contrast to domestic law enforcement . . . the world of intelligence analysis has many fewer tools available for investigation. In hostile foreign environments, personal interviews and observations and records review are much more limited. Accordingly, the role of bulk data as a way to understand the significance of past events is important, and the loss of this tool becomes more serious.

Instead, the USA Freedom Act relies on a nonexistent, untested system and the hope that private companies will agree to retain records long enough for the NSA to obtain data when it may be critical to preventing an imminent attack. But as the National Academy of Sciences noted, “there is no technological magic . . . that will fully substitute for bulk collection” and service providers “have no incentive to cooperate, even if paid; indeed, their customers may object to such cooperation.” Moreover, requiring the government to obtain a court order every time it seeks to search data held by private companies would significantly delay investigations, giving terrorists a substantial operational advantage.

In short, the USA Freedom Act would make it vastly more difficult for the NSA to stop a terrorist than it is to stop a tax cheat. Why make it much harder to investigate terrorists than common criminals?

— Jeff Sessions is a U.S. senator from Alabama.

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