Ted Cruz makes a point during the CNN Republican presidential debate on Tuesday in Las Vegas.AP Photo/John Locher

This article is from the archive of our partner National Journal

Sens. Marco Rubio and Ted Cruz clashed over their opposing votes on a key surveillance bill during Tuesday night’s GOP debate, with each senator trying to establish himself as the strongest on national security.

Rubio accused Cruz of hampering intelligence agencies by supporting the USA Freedom Act, which ended the National Security Agency’s vast collection of millions of U.S. phone records. That information could have been critical in investigating the shooting in San Bernardino, California, Rubio argued. “We are now at a time where we need more tools, not less tools,” the Florida Republican said. “And that tool we lost, the metadata program, was a valuable tool that we no longer have at our disposal.”

Cruz shot back that Rubio “knows what he’s saying isn’t true.” The old NSA dragnet, Cruz argued, covered only 20-30 percent of call records, whereas the Freedom Act will actually allow the agency to collect “nearly 100 percent” of records. Rubio stayed firm, claiming that “there is nothing that we are allowed to do under this bill that we could not do before.”

So who is right? Did the Freedom Act actually give the NSA access to more records, as Cruz is claiming?

Yes, according to top intelligence officials. “The overall volume of call detail records subject to query pursuant to court order is greater under USA FREEDOM Act,” the Office of the Director of National Intelligence wrote in a fact sheet on its implementation of the law last month.

Under the old law, the Patriot Act, the NSA claimed it had the right to collect records on every U.S. phone call. But due to technical obstacles, the agency reportedly struggled to integrate cell-phone records into its database. With people increasingly relying on cell phones instead of landlines, the technical problems had caused a major gap in the NSA’s database.

Under the Freedom Act, the NSA was required to give up control of the database. Instead, the phone companies keep the records themselves, and the NSA can get court approval to search for particular records. But critically, the law includes a provision that requires phone companies to provide “technical assistance” to help the NSA access the data in a readable format. That provision ensures the NSA can access millions of cell-phone records that had previously been beyond its reach.

So while the NSA now has fewer records in its direct possession, the universe of phone-call logs it can access is actually larger.

New Jersey Gov. Chris Christie tried to put himself above the fray by saying the debate over surveillance powers shows why the public hates the Senate—“endless debate about how many angels can dance on the head of a pin."

This article is from the archive of our partner National Journal.

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