The Corner

Politics & Policy

Cruz v. Rubio on Surveillance

I’m for Ted Cruz but there is a lot to like about Marco Rubio, so I’m of two minds about the clashes between the two that highlighted Tuesday night’s debate.

On the one hand, I’m buoyed by how good they are. We haven’t had candidates of this quality for a very long time. (On that score, while I am not a Chris Christie guy for substantive reasons, his talent cannot be denied.) On the other hand, I’m dismayed to see the exchanges between the two senators get so bitter. I think some combination of the two of them is ultimately the best chance of beating Hillary Clinton. Thus, I like it better when they disagree with vigor but without rancor. I know this ain’t beanbag, but what’s going on now may make it hard to put it back together at the end.

On surveillance, I think they are arguing over an empty bag.

It is no secret that I am an enthusiastic advocate of the NSA program. In theory, it is a valuable national security tool and it is constitutionally unobjectionable. As a practical matter, though, there are three major problems that my fellow advocates of the program (Rubio and Christie, along with Jeb Bush and some others) really have not answered.

First, the program is only of great value if it collects all of the metadata. In reality, it was probably collecting less than 70 percent of it. Worse, the missing data – from cellular and Internet service, often through more obscure providers – involve the most likely terrorist communications. On the run and marked for death, you can bet that Baghdadi, Zawahiri and their jihadist cohorts do not have much use for landlines.

This flaw intensifies the political appeal of the “domestic spying” canard. I still think that if explained properly by a good president, most innocent people would not mind a complete government database of calling activity as long as they were satisfied that: (a) it does not include their names and addresses; (b) there are good safeguards – like judicial and congressional oversight – against abuse; and (c) their phone numbers and calls will never be examined unless they came into contact with known terrorist numbers. But if the government is failing to collect records of the activity – terrorist communications – that is the only reason for having the database in the first place, people are understandably going to object, and properly so.

The second big problem program advocates fail to address is legal, albeit not constitutional. The highest federal court to review the program, the U.S. Court of Appeals for the Second Circuit, ruled that the bulk collection of metadata violates the Patriot Act statute.

As its good faith defenders have long acknowledged, the metadata program was based on a debatable, aggressive interpretation of Patriot section 215. It authorized collection of information “relevant” to a terrorism investigation. At a high level of generality, every call by every person is theoretically “relevant” – i.e., having all the data enables the running of algorithms that help identify the calling patterns of terrorists who are actually under investigation. But there has always been a strong argument that Congress, in enacting section 215, had something more narrow in mind: namely, the calling activity of only suspected terrorists and the people with whom they are in contact.

Reasonable minds can differ on how “relevant” should be construed, just as the Second Circuit came to a different conclusion than the many judges of the Foreign Intelligence Surveillance Court (FISC) who issued orders permitting the bulk collection. Still, regardless of whether one thinks the Second Circuit got it right or wrong, they’re still the Second Circuit. The ruling was a game changer. It meant the program was going to be modified, drastically, absent one of two highly unlikely developments: (a) the Supreme Court taking the case and reversing the Second Circuit, or (b) Congress amending the Patriot Act to unambiguously permit the massive metadata collection despite strong public sentiment that the program should be curtailed, if not ended.

Consequently, it is foolish for Rubio and Christie to say they would reauthorize the program. Once the Second Circuit ruled that the program violated the statute, politically reauthorizing the program was not going to solve the legal problem. The FISC was likely to stop issuing orders until the legal controversy was resolved. And the votes were not there in Congress to make the statute more aggressive. (Aside: Why is it that when it comes to stopping Obama, Republicans tell us they can’t do it because the votes aren’t there, but when it comes to the NSA program, the fact that the votes aren’t there doesn’t seem to matter?)

Finally, there is unseemly political opportunism afoot. During the debate over the program, critics claimed that there was no evidence it ever thwarted a single terrorist attack. Some program advocates countered (not very convincingly) that it had. But most of us who have spent years on this stuff argued that the critics were missing the point.

The purpose of the program was not, by itself, to detect and prevent specific attacks – although we could certainly hope to get lucky now and then. The purpose of collecting metadata is to map terrorist networks by identifying players and patterns of communication; that, in conjunction with an array of other intelligence tools (informants, eavesdropping, physical surveillance, bank records, etc.), would enable us to disrupt cells before they could attack.

This is still the purpose of the program and, in my view, it is still why we should reconstitute it (in a way that captures all the data). But it is absurd to claim that, if only we had had the program, we could have stopped the San Bernardino attack. The meaningful intelligence failures in San Bernardino involve the collapse of visa safeguards and the politically-correct resistance to surveillance of Islamists and mosques known to be radical. Metadata is beside the point. Indeed, if the bulk collection were still in effect when San Bernardino happened (as it was, for example, when Fort Hood happened), Rubio and Christie would be the first ones out there cogently explaining that the point of the program is not to stop specific attacks.

To be fair to Rubio, Christie, Bush and my other fellow defenders of the program, they have been on the receiving end of baseless arguments that the program violated the Constitution and amounted to “domestic spying.” I thus understand the temptation to respond in kind, and San Bernardino provides the opening for that. But it’s still wrong.

Finally, Cruz’s argument that the USA Freedom Act actually strengthens the government’s ability to target and disrupt terrorists fares no better. As noted above, he is right that the old program missed most of the metadata. And, as he says, we now have an approach that is designed to probe all of the data – by using search terms (which, unlike the old program, include names, addresses and other identifying data). There are, however, two big holes in this contention.

First, the USA Freedom Act does not allow us to do anything we weren’t already doing – a point Rubio made last night. Back when the bulk database was operational, it was not our exclusive investigative tool. When agents got information about specific terrorist phone numbers, they could both run them against the database and use subpoenas or court orders to get other relevant information directly from the telecoms. So the ability to do this now, under the USA Freedom Act, is not a change.

Second, what has changed is that the database is being phased out. Stipulating, again, that the database was woefully incomplete, it was a far more efficient way to maintain information. The government collected the information from various telecoms, conformed it into a readily searchable format, and could access it instantaneously when the need arose. Now, the data will be maintained by the telecoms. So each time a lead must be investigated, agents will have to make separate requests to each relevant telecom. Worse, while the old program kept data for five years before purging it, the USA Freedom Act does not require the telecoms to maintain their data for any length of time.

As a former prosecutor who conducted many long-term investigations of criminal and terrorist enterprises, I can attest that this is a very frustrating set-up. It often takes many days, sometimes weeks, for telecoms to amass and turn over subpoenaed records. If you are dealing with different companies, the record formats are different – so the FBI has to spend precious hours and days conforming them into something usefully searchable. And often, if you need to probe who was calling whom more than 18 months ago (which happens a lot, especially if you are trying to map a terror network), you are out of luck: the company will have purged the data.

From a counterterrorism standpoint, it would be infinitely better to have a system in which all telecoms provided the metadata to the government (again, without identifying information), preferably in a single format that was easy to enter into a database. That database, in turn, would be readily searchable but with strong safeguards in place to ensure that it was only used for counterterrorism purposes and within strict guidelines. And of course, the government should be forthright about what is being done: All telecoms should be required to participate and the public should be told that a complete database is being assembled – the program should not rely on a dubious interpretation of the word “relevant.”

That ideal is not the NSA metadata program as it used to exist, nor is it the watered-down USA Freedom Act framework in which we operate now. It doesn’t help to say, “I’d reauthorize the program,” without explaining how you’d get around the practical, legal and political obstacles. It doesn’t help to say, “The USA Freedom Act is an improvement” when it is not. Consequently, I don’t think the surveillance debate among the candidates is very useful. And since I think both Cruz and Rubio (and, for that matter, Christie and Bush) would be very strong when it comes to giving our agents the tools and the berth they need to investigate terrorists and protect the homeland, any differences suggested by last night’s surveillance discussion are more apparent than real.

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