01 August 2013

Feds Lied About Benefits Of Domestic NSA Surveillance

At a Senate Judiciary Committee hearing, the chairman, Patrick J. Leahy, Democrat of Vermont, accused Obama administration officials of overstating the success of the domestic call log program. He said he had been shown a classified list of “terrorist events” detected through surveillance, and it did not show that “dozens or even several terrorist plots” had been thwarted by the domestic program. . . . The Obama administration has been trying to build public support for its surveillance programs, which trace back to the Bush administration, by arguing that they are subject to strict safeguards and court oversight and that they have helped thwart as many as 54 terrorist events. That figure, Mr. Leahy emphasized, relies upon conflating another program that allows surveillance targeted at noncitizens abroad, which has apparently been quite valuable, with the domestic one. . . . John C. Inglis, the deputy director of the N.S.A., said there had been 13 investigations in which the domestic call tracking program made a “contribution.” He cited two discoveries: that several men in San Diego were sending money to a terrorist group in Somalia, and that a suspect who was already under scrutiny in a subway bomb plot was using a different phone.
From The New York Times.
[U.S. Senator Leahy] noted that senior officials had testified that the phone logging effort was critical to thwarting 54 plots, but after reviewing NSA material, he said that assertion cannot be made — “not by any stretch.” Pressed by Leahy on the point, Inglis admitted that the program “made a contribution” in 12 plots with a domestic nexus, but only one case came close to a “but-for” or critical contribution.
From The Washington Post.

And thus, 54 terrorist events detected became one plot to which the program made a critical contribution, over many, many years of monitoring every single phone call of every single American in the United States. This tips the balance quite a bit. It is not at all clear that a House vote of 207-217 rejecting limitations on NSA domestic surveillance made last month would have survived if the administration's lies about the program's effectiveness in preventing terrorism had been available at the time. The fact that it took an illegal disclosure by an outside contractor to get the administration to tell Congress the truth or to release basic information about the program also casts doubt on the effectiveness of Congressional oversight of the program.

A key question in my mind is whether the "critical contribution" was one for which a request support by "probable cause", or even a "reasonable suspicion" related to a particular suspect or even a particular terrorist plot or group for which names are not known, could have achieved the result, or if this "critical contribution" would not have been possible but for a blind search.  If the critical contribution came from finding another phone of a subway bomb plotter, one might think that it could have been.  If the critical contribution was related to people sending money to a terrorist group in Somolia, I'm inclined to think that greater privacy protection might be worth missing one instance of terrorist group funding found with a blind search that couldn't have been found any other way.

On the whole the updated effectiveness data strongly suggests that probable cause based investigation is not just legally sound, but is also an extremely good discriminator between almost worthless blanket searching and highly fruitful targeted searching.

Bonus:  Absurd details about the FISA Court.

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