The War on Terror's Jedi Mind Trick

National-security officials insist new violations of privacy are essential for keeping Americans safe from terror—but there's no evidence the programs have stopped any attacks.
General Keith Alexander finds your lack of faith disturbing. (Hyungwon Kang/Reuters)

A Republican-appointed judge and President Obama’s own handpicked Surveillance Review Group both came to the same conclusion last week: The National Security Agency’s controversial phone-records program has been of little real value to American security. Yet its defenders continue to insist that it is necessary, clinging desperately to long-debunked claims about foiled terror plots. Their stubbornness fits a decade-long pattern of fear trumping evidence whenever the word “terrorism” is uttered—a pattern it is time to finally break.

Since the disclosure of the NSA’s massive domestic phone-records database, authorized under a tortured reading of the Patriot Act’s Section 215 authority to obtain business records, intelligence officials and their allies in Congress have claimed it plays a vital role in protecting Americans from “dozens” of terror attacks. But as the expert panel Obama appointed to review the classified facts concluded, in a report released Wednesday, that just isn’t true.

“Our review suggests that the information contributed to terrorist investigations by the use of section 215 telephony meta-data was not essential to preventing attacks,” the report found, “and could readily have been obtained in a timely manner using conventional section 215 orders.” 

In other words, instead of vacuuming up sensitive information about the call patterns of millions of innocent people, the government could have followed the traditional approach of getting orders for specific suspicious numbers. As for those “dozens” of attacks, the review groups found that the NSA program “generated relevant information in only a small number of cases, and there has been no instance in which NSA could say with confidence that the outcome would have been different without the section 215 telephony meta-data program.”

The report came just days after Judge Richard Leon, appointed in 2001 by President George W. Bush, found the telephony program likely violated the Constitution. Leon found the program’s invasion of privacy especially troubling given the “utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics,” and declared himself unconvinced that the program “has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigations.”

Leon’s opinion cited a thorough report by ProPublica documenting holes in the intelligence community’s talking points, including a “foiled plot” to bomb the New York Stock Exchange that appears to have been largely imaginary. The suspects in that case were never charged with planning an attack: The real “plot” seems to have been to con an American terror sympathizer out of funds his foreign contacts hoped to use to open an appliance store.

This confirms what informed critics of the program have been saying for some time. In an amicus brief recently filed in support of an ACLU lawsuit, several senators with access to the classified details argue that there is “no evidence that the bulk collection of Americans’ phone records has provided any intelligence of value that could not have been gathered through less intrusive means.” 

Even the FBI may not believe its own public rhetoric in support of the program. An exchange reported in Garrett Graff’s book The Threat Matrix quotes former FBI director Robert Mueller describing what appears to be the 215 phone program as a “useless time suck.”

In fact, the very first use of the 215 authority was not to gather up bulk phone records; it was a bit of show for the benefit of Congress. As documented in an exhaustive 2007 report by the Justice Department’s inspector general, the FBI had been relying on another Patriot Act authority to obtain phone records. But by 2003, as one FBI attorney explained to the Inspector General, “there was a recognition that the FBI needed to begin obtaining Section 215 orders because… Congress would be scrutinizing the FBI’s use of the authority in determining whether to renew the authority.” In other words, the power wasn’t used because it was necessary: It was used to convince Congress that it was necessary.

And yet on Thursday, White House Press Secretary Jay Carney stuck to the same discredited talking points, calling the program an “important tool” and falsely claiming that “at least 50 threats that have been averted because of this information, so lives have been saved.”

Unfortunately, Carney’s stubbornness is no aberration, but part of a pattern we’ve seen all too often over the past decade. Just like the NSA, we now have more than enough data to “connect the dots.”

President Bush authorized the NSA to conduct wireless phone wiretaps shortly after September 11 attacks. When The New York Times revealed the program, administration officials insisted it was effective and vitally important. Former NSA Director Michael Hayden claimed that it had “been successful in detecting and preventing attacks inside the United States,” while Vice President Cheney went further, asserting that the program had “saved thousands of lives.”

Presented by

Julian Sanchez is a fellow at the Cato Institute, where he studies privacy, technology, and civil liberties.

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