A bipartisan group of legislators in the House—spearheaded by Rep. Justin Amash (R-Mich) and John Conyers (D-Mich)—is bucking both the Obama administration and Republican party leadership to push an appropriations measure defunding the National Security Agency’s dragnet phone records programs. The measure would forbid the government from using any resources to execute a Patriot Act §215 “business records” order unless it is limited to the specific targets of specific investigations—effectively barring use of that authority to vacuum up the phone records of millions of innocent Americans. Predictably, the intelligence community and its proxies in Congress are pushing back ferociously, circulating an “Open Letter of Support” for the dragnet program from former intelligence officials. It’s worth surveying their main talking points to see just why they aren’t persuasive. Note that they begin, as many defenders of the phone dragnet do, by lumping it together with the very different PRISM program, which involves monitoring of international e-mail and Internet traffic:
We are convinced that both programs are vitally important to our national security. The Director of the NSA, Gen. Keith Alexander, has publicly attested that these programs have been instrumental in helping to prevent attacks on the United States and its allies, including the plot to bomb the New York City subway.
The bundling here is important. Alexander did, at a June 18 hearing, assert that PRISM had been “critical” in disrupting a number of “terror events,” mostly overseas. But when pressed specifically by Rep. Jim Himes (D-Conn.) on whether the §215 call records program had been “essential” in any cases, Alexander conspicuously dodged the question. He would not identify even a single case in which the bulk phone records collection had been “essential,” or even claim that there was such a case that he couldn’t discuss specifically.
As for the plot to bomb New York’s subway system, the Atlantic convincingly marshalls evidence from the public record showing that the key initial leads in that case did not come from either PRISM or the §215 program. And with those leads, traditional intelligence authorities would have allowed the investigation to proceed more or less as it did. In particular, there is no indication whatever that the use of phone records to identify associates of plotter Najibullah Zazi required a massive database of all Americans’ calls: Ordinary police, after all, do similar detective work all the time, but with targeted orders based on particularized suspicion.
The crucial general point to understand about these claims for the efficacy of these programs is that if you have unlimited authority, then that will be what you end up using even if more limited authority would have sufficed. If we had never passed the Fourth Amendment, and the government could get “general warrants,” allowing police to search any home at will, they would never bother getting specific warrants based on probable cause. Then, every time police solved a crime through a search, they could accurately say “You see, we used a general warrant!” But that would be no argument for general warrants. The question to ask is: “Why couldn’t you have done it with a specific warrant instead?” We haven’t heard, at least publicly, any very good answers to that question when it comes to the NSA call dragnet.