Senate Intelligence Committee Members Dispute Success Stories About Surveillance Dragnet

21 June (LPAC) Senators Ron Wyden (D-Ore.) and Mark Udall (D-Colo.), both members of the Sen. Intelligence  Committee, issued a press release Wednesday, “On Effectiveness Of Declassified NSA Programs.” The Senators said,

“Based on the evidence that we have seen, it appears that multiple terrorist plots have been disrupted at least in part because of information obtained under section 702 of FISA. However, it appears that the bulk phone records collection program under section 215 of the USA Patriot Act played little or no role in most of these disruptions. Saying that ‘these programs’ have disrupted ‘dozens of potential terrorist plots’ is misleading if the bulk phone records collection program is actually providing little or no unique value.

“The Intelligence Community notes that the massive collection of phone records under Section 215 has provided some relevant information in a few terrorism cases, but it is still unclear to us why agencies investigating terrorism do not simply obtain this information directly from phone companies using a regular court order. If the NSA is only reviewing those records that meet a ‘reasonable suspicion’ standard, then there is no reason it shouldn’t be able to get court orders for the records it actually needs. Making a few hundred of these requests per year would clearly not overwhelm the FISA Court. And the law already allows the government to issue emergency authorizations to get these records quickly in urgent circumstances. The NSA’s five-year retention period for phone records is longer than the retention period used by some phone companies, but the NSA still has not provided us with any examples of instances where it relied on its bulk collection authority to review records that the relevant phone company no longer possessed.

“In fact, we have yet to see any evidence that the bulk phone records collection program has provided any otherwise unobtainable intelligence. …”

What the Senators — who are among the small number of people outside the White House and the intelligence community who have some actual knowledge of what has been officially reported about intelligence operations — are pointing out, in the face of claims by proponents of the surveillance dragnet programs that the programs were key to busting up various terror plots, is that those successes were due to good old-fashioned intelligence work investigating specific targets, e.g., with FISA section 702, rather than dredging up the details of the lives of everyone in the United States.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) (50 U.S. Code section 1881a) provides that the Attorney General and the Director of National Intelligence may jointly authorize the targeting “of persons reasonably believed to be located outside the United States to acquire foreign intelligence information” upon issuance of an order from the Foreign Intelligence Surveillance Court (FISC). That is, it demands pretty well-defined targets.

By contrast, Section 215 of the USA Patriot Act (50 U.S. Code section 1861), which is titled “Access To Certain Business Records For Foreign Intelligence And International Terrorism Investigations,” provides that the FBI “may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities. …. Again, the application is made to the FISC.

In other words, Patriot Act section 215 may access a broad array of information which has been compiled from or about a whole lot of admittedly innocent persons for everyday reasons by, for instance, businesses or government offices. The broad array permitted by Patriot Act section 215 is further indicated by a passage which discusses the required authorizations “In the case of an application for an order requiring the production of library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records …”

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