War Stories

The State of the Surveillance State

America isn’t defenseless without the Patriot Act, and the revised law won’t hurt national security, either.

U.S. Senate Majority Leader Sen. Mitch McConnell.

Republican Senate Majority Leader Sen. Mitch McConnell of Kentucky speaks during a news conference at the Capitol on May 19, 2015 in Washington, D.C.

Photo by Alex Wong/Getty Images

After the Senate’s rare Sunday night session, Congress is on track to end the National Security Agency’s practice of sweeping millions of Americans’ phone records—the most controversial program revealed by former NSA consultant Edward Snowden two years ago. The move will reduce the potential for NSA abuse in the future, but—contrary to the dire warnings of some and the dizzy celebrations of others—it will not diminish the agency’s ability to spy on terrorists, either abroad or inside the United States.

Under Section 215 of the Patriot Act, which was passed in 2001, shortly after the Sept. 11 attacks, certain phone companies have been required to give the NSA bulk records known as “metadata”—the numbers, dates, times, and durations of all phone calls, but not the identities of the callers or the contents of their conversations. The NSA has then stored the metadata for up to five years and has used it to draw links between suspected terrorists and possible associates—or that’s the theory.

A revision to this law, known as the USA Freedom Act, which the House passed in May, would keep these records stored with the phone companies. The NSA could gain access to the metadata only by requesting it through the Foreign Intelligence Surveillance Court—and, even then, the requests and access would be limited to specific phone numbers or information.

On May 23, the Senate voted, 57-42, to adopt the House bill, but the tally fell three votes short of the 60 needed to override a filibuster—and a filibuster was threatened from the right and from the libertarian-left.

Senate Majority Leader Mitch McConnell was pushing a bill to extend the Patriot Act, unchanged, for another five years. Under ordinary circumstances, he might have won, or held out for some compromise between the House bill and his proposal, but that tactic wouldn’t work this time. Back in 2001, in the wake of the terrorist attacks, then-President George W. Bush pushed Congress to pass the Patriot Act immediately; the bill was still hot off the presses, almost no one had read it, and it differed substantially from a similar measure hammered out by the judiciary committees. In exchange for their haste, key legislators insisted that a “sunset clause”—an expiration date—be written into some parts of the law (including Section 215), which Congress could extend or let lapse in a more sober, reflective time.

In 2011, when the bill was last scheduled to expire, Congress voted to extend the law until 2015. In the interim, three things have happened. First, and pivotally, came Snowden’s disclosures. Second, a presidential commission—which was formed as a result of those disclosures—recommended several reforms to NSA practices, some of which are included in the USA Freedom Act. Third, in early May, a federal appeals court ruled that Section 215 of the Patriot Act did not in fact authorize anything so broad as the NSA’s bulk metadata–collection program—that, in other words, the bulk-collection program was illegal.

That set the stage for Sunday’s debate. In this much-changed climate, McConnell’s bill to extend the program unchanged was never going to pass. As majority leader, whose No. 1 job is to count votes before a roll call, he should have realized this. At the same time, a small coalition of Senate liberals and libertarians wanted to end all metadata surveillance. Because of the impending sunset date, all this group had to do was block the Senate from voting on any measure—all they had to do was to filibuster McConnell’s bill. Sen. Rand Paul took up the task with relish.

At the last minute, McConnell, finally sensing which way the wind was blowing, relented and put his weight behind the House-passed bill. On Sunday night, hours before the expiration, the Senate, by 77-17, approved a cloture motion, shutting down Paul’s threatened filibuster. But then Paul took advantage of another Senate rule, which requires “unanimous consent” for a vote to take place. This procedure is usually pro forma, but Paul objected—all it takes is one senator to block unanimous consent—so a vote to adopt the House bill was put off until sometime this week.

Paul admitted that the Senate would almost certainly pass the USA Freedom Act. But he had promised to force the expiration of Section 215, and so he did.

Besides bolstering his rebel status among his most fanatical libertarian followers (and probably diminishing his chances of doing well at the Iowa Republican caucus), is Paul’s short-term obstructionism likely to have any effect?

Almost certainly not. The Patriot Act carried a “grandfather clause,” which stated that, even if Section 215 expired, existing investigations of metadata would be allowed to continue. The FBI, which uses metadata for some of its counterterrorism probes, can retain access to these records, at least for a little while, through other authorities. If a group of terrorists started talking with one another right now and, as a result, pulled off an attack in the next two or three days (before the Senate overrules Paul’s objections and takes a vote), then, yes, Paul’s shenanigans would have left the intelligence community in a dangerous zone of darkness. But this is extremely unlikely. Besides, the NSA spies on terrorists, foreign governments, and many other kinds of targets abroad, with many tools and techniques, authorized by other laws and executive orders that have nothing to do with the Patriot Act.

What about Section 215 itself? Once the Senate passes the USA Freedom Act, once metadata is removed from NSA headquarters at Fort Meade and retained by the telecoms, will the agency have a harder time tracking terrorists and foiling their plots? In other words, quite apart from Paul’s delay tactics, is this new legislation—as McConnell has claimed—bad for national security?

Again, almost certainly not. Two things are especially worth noting. First, the president’s five-man commission on NSA reform concluded—from a thorough examination of highly classified material and interviews with the most senior officials—that Section 215 telephone metadata had played no role in the unearthing or halting of a single terrorist plot.

It should be added, the commission concluded that a separate NSA program known as PRISM—which, under Section 702 of the Foreign Intelligence Surveillance Act (as amended in 2008), lets the NSA intercept foreign emails and cellphone traffic on U.S. service providers—did help foil 53 terrorist attacks. However, Section 215 metadata played no role in finding those terrorists either.

Of course, just because metadata hasn’t helped capture any terrorists doesn’t mean it can’t or never will. However, the new law won’t make metadata disappear. The telephone companies generate metadata and always will—it’s a part of their routine business records—even if there were no Section 215, USA Freedom Act, or NSA.

This isn’t well-known, but Gen. Keith Alexander, then the NSA director (and an avid promoter of metadata as an intelligence tool), came up with the idea of storing the data with the telecom companies. Telephone metadata comprises a tiny, almost infinitesimal percentage of the NSA’s global databases. In 2009, Alexander talked with telecom executives about working out a way to keep the metadata stored with them, but nothing came of the discussions. The executives didn’t want to pay for the storage, nor did they want to keep the metadata in a format that the NSA could easily search after a subpoena. (The USA Freedom Act provides the funds and allots the NSA and the telecoms a six-month transition period to devise a searchable format.) When the five members of Obama’s commission were mulling what to do about metadata, Alexander told them he wouldn’t mind keeping it stored with the telecoms. Adm. Mike Rogers, the current NSA director, has told investigators that he wouldn’t mind either.

This is what makes McConnell’s resistance to the House bill so puzzling: The four-star general and four-star admiral who have run the NSA ever since the program began—the curators of the metadata—have said they have no problem with this reform.

Both directors have suggested that a reform law should include a clause allowing the NSA access to metadata, without first obtaining a FISA Court order, in cases of emergency. (In those cases, the FISA Court would rule retroactively.) The USA Freedom Act contains just such a clause.

So does the new law have any significance whatever? Can it properly be called a reform law? Yes, for three main reasons. First, it adopts another of the Obama commission’s recommendations: requiring the appointment of a privacy advocate on the FISA Court. This may make the court hearings—which are held in secret—less of a rubber-stamp exercise. Second, it requires periodic declassification review of the court’s rulings (another commission recommendation), which may lead to greater accountability.

Third, and most significant, the very removal of metadata from NSA headquarters substantially reduces the potential for abuse. The Obama commission found no evidence that the NSA has used metadata analysis to go after political opponents—or, for that matter, any target other than suspected members or associates of three specific terrorist organizations. It is worth noting that Snowden’s documents have revealed no such evidence, either.

However, one can imagine what Richard Nixon or J. Edgar Hoover might have done with the technology that the NSA has at its disposal—and it’s hardly a farfetched notion that the likes of Nixon or Hoover could again ascend to national power. The NSA has set its metadata-search algorithms to trace terrorists, but there’s no physical reason why they couldn’t be set to search for domestic drug traffickers, criminals, political enemies, or troublemakers of whatever category some rogue director might choose. (Currently the NSA is crawling with lawyers, who assiduously follow reporting requirements, but one can imagine a climate in which a director might tear down this whole apparatus.)

Removing the metadata from the NSA removes the temptation, or opportunity, for abuse. Given the fears tapped by Snowden’s disclosures, and some harrowing chapters of 20th-century American history, this is a very good thing. And it’s been accomplished with no compromise of national security.