The White House on Wednesday released a much-anticipated independent review of the National Security Agency's spy programs, which offered 46 recommendations for reforming the agency's spy ops.
The report concluded that the programs, though they had gone too far, should stay in place. But it nevertheless may have undermined the NSA's claim that the collection of all phone metadata is a necessary tool to combat terrorism.
"Our review suggests that the information contributed to terrorist investigations by the use of section 215 telephony metadata was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders," the report said.
That finding came just days after a federal judge ruled that the phone data collection program was "likely unconstitutional." Moreover, he wrote in his decision that, for all the government's bluster, there was no indication the program had actually produced tangible results.
"The government does not cite a single case in which analysis of the NSA's bulk metadata collection actually stopped an imminent terrorist attack," Judge Richard Leon wrote.
Given the limited record before me at this point in the litigation — most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics — I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism. [PDF]
Granted, the collection of phone data is just one of the NSA's many once-secret tools. And unsurprisingly, the White House, hawkish lawmakers, and those who oversee the spy programs have repeatedly claimed that the NSA's programs in their entirety have proven crucial to snuffing out terror plots.
Shortly after whistleblower Edward Snowden's leaks turned up in the press, NSA Director Gen. Keith Alexander defended his agency's surveillance practices before the Senate. The surveillance programs, he said, had stopped dozens of attacks at home and abroad, including a 2009 plot to bomb the New York City subway system.
Obama, too, said back in June that the programs had thwarted "at least 50" possible attacks. (He and others often cite 54 as an exact number.) He also defended the tradeoff of civil liberties for security as a necessary one — "we have to make choices as a society" — adding that the programs were merely "modest encroachments on privacy."
However, two prominent critics of the NSA, Democratic Sens. Ron Wyden (Ore.) and Mark Udall (Colo.), challenged that assessment in a joint statement following Alexander's testimony.
"We have not yet seen any evidence showing that the NSA's dragnet collection of Americans' phone records has produced any uniquely valuable intelligence," they wrote.
Alexander had only specified a couple of the supposed "dozens" of instances in which NSA spying thwarted terror plots. The two senators added in a subsequent statement that it appeared the government had actually uncovered those plots via other investigative tools, and that the NSA's data snooping had "played little or no role in most of these disruptions."
A ProPublica investigation earlier this year likewise determined that there was "no evidence that the oft-cited figure [of 54 disrupted plots] is accurate," and that the NSA was often "inconsistent on how many plots it has helped prevent and what role the surveillance programs played."
It's pretty much impossible to say who's right with any certainty. A full explanation of the supposedly disrupted plots remains classified, so only some lawmakers and those involved in the programs know exactly how effective they've been.
Still, it's likely that the NSA has at least overstated the effectiveness of its tools, particularly in comparison to the sheer scale of the spying. Sen. Patrick Leahy (D-Vt.), after reviewing the full classified list of thwarted plots, concluded the programs had "value," but that the 54 figure was a gross exaggeration.
"That's plainly wrong," he said at a July hearing. "These weren't all plots and they weren't all thwarted."
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