The Corner

The USA Freedom Act Would Take Us Back to the Pre-9/11 Security Status Quo

I worry that the representatives who voted to pass the USA Freedom Act in the House do not understand its full import in terms of our national security. The bill practically repeals Section 215 of the Patriot Act, but makes it appear as if those who voted for the bill advanced security in some way. The result of the legislation’s enactment, however, would not be significantly different than if Section 215 were simply allowed to expire. Even before the Patriot Act, the government could get a warrant from a judge to get call metadata from a phone company. The Freedom Act requires phone companies to keep the calling records, but of course they do that already in order to bill customers. So the Freedom Act eliminates the advantages of Section 215 and practically restores the system that existed before. It is politically superficial but also substantively destructive.

As we saw on 9/11, that previous system failed. The reason why is that it slowed everything down (as would the Freedom Act). If our intelligence agencies have a lead — say they capture a terrorist leader or intercept his calls — they will have to act quickly to see what other phone numbers and e-mail addresses that the leader contacted to discover the broader network. The other terrorists, of course, will be switching to other numbers and addresses as soon as they suspect that one of their number has been compromised. Taking the time to (a) prepare a request for a warrant; (b) get it approved by a judge; and then (c) search through multiple phone company databases, will give the terrorists time to hide and cover their tracks. Speed is of the greatest essence exactly when we are trying to find the links in the U.S., where the terrorists will be closest to their targets and our defenses at their weakest.

If this program had been in effect before 9/11, the government could have quickly searched the databases to discover the links between the two hijackers known to the CIA to have entered the U.S. That could have quickly led the government to the rest of the hijackers (just as those calling, e-mail, and financial records allowed the FBI to reconstruct the 9/11 terror cells within a day or so after the attacks).

Another problem is that having the database dispersed among the different phone companies means our government cannot be sure that it has searched thoroughly for all of the possible links. The value of these metadata searches is reduced if the database is not as complete as possible. The databases will also be in private hands, where they might easily be open to invasions of privacy and penetration by foreign intelligence services. 

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. He is the author of Defender-in-Chief: Donald Trump’s Fight for Presidential Power.

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