The Corner

National Security & Defense

Patriot Act Opponents Are Misrepresenting an FBI Report about the Metadata Program

As a strong supporter of the NSA metadata program, I was dismayed when a Department of Justice Inspector General report suddenly was released on Friday, May 22, just as the U.S. Senate was about to vote on extending this program.

Opponents of the metadata program (also known as Section 215) and the media seized on the DOJ IG report as a huge blow for its defenders, noting this quote: “The agents we interviewed did not identify any major case developments that resulted from use of the records obtained in response to Section 215 orders.” 

Senator Rand Paul cited the report in a Breitbart op-ed, writing that “the Investigator General reported that the FBI has not cracked a single terrorist plot thanks to the invasive spying powers implanted under the PATRIOT Act. Let me reiterate that: even the most vocal defenders of the spying program have failed to identify a single thwarted plot.” And Alex Abdo, a staff attorney at the American Civil Liberties Union, told the Associated Press that DOJ IG report is “an indictment of the system of secret oversight.”

Such claims are wrong for other reasons, and last week I believed the release of this report hours before the Senate was scheduled to vote on extending the metadata program was probably politically motivated. But then I read the report.

The actual language on the usefulness of the metadata program from page 44 of the report summary reads (emphasis mine)

The agents we interviewed did not identify any major case developments that resulted from the records obtained in response to Section 215 orders, but told us the authority is valuable when it is the only means to obtain certain information.

That certainly appears to destroy claims by Senator Rand Paul and privacy advocates that the metadata program has no value and that any information produced by it can be obtained from other sources.

This section of the report goes on to say:

As described in this section, agents told us that the material produced pursuant to Section 215 orders was used to support other investigative requests, develop leads, and corroborate information obtained from other sources.

From page vi of the report’s introduction:

Agents and attorneys told us that Section 215 authority continued to be a valuable investigative tool particularly when the material sought by the FBI was not available through other investigative authorities.

Based on my 19 years as a CIA analyst, I can tell you this is how investigations are done. Rarely is there one “smoking gun” source behind an intelligence analysis.  I often used over a hundred raw intelligence reports to write an analysis, with no particular source indispensable. While I continue to believe that metadata was the smoking-gun source in stopping terrorist attacks against the United States, that’s not necessary to prove it’s a key part of our intelligence operations.

Another bit from the report:

As previously noted, we did not attempt to independently evaluate the value of the materials produced in response to Section 215 orders.

So despite claims by opponents of the metadata program that the report concluded that this program is ineffective, the report specifically says that it wasn’t making an assessment of that.

The whole document is a verbose treatment of how the FBI has used telephone metadata — it contains no conclusions or recommendations about the program’s effectiveness or constitutionality, and Section 215 opponents quoted the report out of context while failing to mention passages that reflect positively on the program. 

As they prepare to vote on whether to reauthorize the metadata program, senators need to be aware that the manipulation of the DOJ IG report is typical of the misleading and fearmongering campaign being conducted by its opponents.

Fred Fleitz, president of the Center for Security Policy, served in 2018 as deputy assistant to the president and to the chief of staff of the National Security Council. He previously held national-security jobs with the CIA, the DIA, the Department of State, and the House Intelligence Committee staff. He is the editor of the 2020 book Defending against Biothreats.

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