Dianne Feinstein Deploys All The 'Intelligence' Cliches In Op-Ed Defending Metadata Program

Overhype

from the needs-new-talking-points dept

Dianne Feinstein is reaching out to the American public (at least those that read USA Today) in hopes of gathering support for the NSA’s metadata collection. (Maybe she feels she guilty after inadvertently damaging its chances at staying legal…) If you’ve heard anything from Feinstein over the past few months, you’ve heard these arguments. In fact, if you’ve heard anything from any of the NSA’s defenders, including Gen. Alexander himself, you’ve heard these arguments.

Her editorial basically checks every box on the list of Section 215isms.

[X] LEGAL

The NSA call-records program is legal…

[X] OVERSIGHT

… and subject to extensive congressional and judicial oversight.

These words are meant to be comforting, showing that the NSA isn’t doing anything illegal, especially since any oversight would certainly prohibit that, right? Except that the legality of the program depends on secret interpretations and a very loose reading of the Third Party Doctrine. As for the oversight? The FISA court has been (rightfully) referred to as a “rubber stamp,” and the oversight is hampered by the underhanded tactics deployed by intelligence committee heads.

So, while the sentence may be technically true, the words being used don’t mean what most Americans would assume them to mean.

[X] IT WORKS

Above all, the program has been effective in helping to prevent terrorist plots against the U.S. and our allies.

Once again, there’s very little proof that the Section 215 program has had any effect. At one point, defenders were claiming over 50 plots had been prevented by this program. At the latest count, it’s been pared down to two. And those two are still “maybes.”

The most recent narrative push is that this program would have prevented the 9/11 attacks, because of a San Diego phone number being contacted by one of the hijackers. But this claim should be taken with a server full of salt because even with the program, the NSA is having trouble finding any needles scattered amongst all the hay. It does well connecting the dots after attacks have occurred, but Americans shouldn’t have to sacrifice liberty for mop-up security.

[X] NOT SURVEILLANCE

The call-records program is not surveillance. It does not collect the content of any communication, nor do the records include names or locations.

Feinstein cites the Supreme Court’s decision that business records aren’t protected by the Fourth Amendment. What she glosses over is the fact that these “unprotected” records can paint a very vivid picture of telco customers, many of whom would be very surprised at how little is left up to the imagination by metadata.

[X] CONNECT THE DOTS

This program helps “connect the dots” — the main failure of our intelligence before 9/11.

And continues to be a failure more than a decade later! Feinstein quotes two intelligence leaders as claiming an untargeted metadata haul would have prevented the 9/11 attacks. Considering the fact that the NSA can only claim two “maybes” in its decade-plus of having access to these records, those claims seem to be completely faith-based.

Feinstein specifically mentions hijacker Khalid al-Mihdhar, who supposedly would have been discovered here in the US pre-9/11 had the agencies been able to collect vast amounts of metadata. Unfortunately, the truth is that the CIA had plenty of info on al-Mihdhar’s movements in other countries as it had been tracking his movements for two years. But when it lost him in 2000, it did nothing proactive, like place him on watch list in case he returned to the US. Evidence exists that various call tracing programs built at the behest of the NSA and DEA were in place well before 2001, and none of those helped track down a person well known to the CIA.

[X] NEEDLES IN HAYSTACKS

The overwhelming majority of records are never reviewed before being destroyed, but it is necessary for the NSA to obtain “the haystack” of records in order to find the terrorist “needle.”

One paragraph after “connecting the dots” (which the NSA can’t seem to do proactively), Feinstein deploys the other data-harvesting cliche. The NSA isn’t having much luck with its needle-finding technology either and recently, its haystacks have been bursting into flames. So, this is a non-starter.

[X] TIME IS OF THE ESSENCE, EVEN IF IT TAKES FOREVER

To be effective, the NSA must be able to conduct these queries quickly, without regard to which phone carrier a terrorist or conspirator uses. And the records must be available for a few years — longer than phone companies need them for billing purposes.

Let me get this straight: the NSA needs records right away but also wants to keep them indefinitely. The latter part plays to the agency’s strength — the deployment of hindsight-guided, dot-connection technology. Its catlike reflexes are generally underwhelming when it comes to preventative efforts, however.

[X] METADATA STOPS TERRORISM

Since its inception, this program has played a role in stopping roughly a dozen terror plots and identifying terrorism supporters in the U.S.

This number is also false, but it’s one that’s being used to salvage the upper end claim of “54.” The “roughly a dozen” refers to thirteen of those 54 that have a “terrorism nexus” in the US. Feinstein has built a list of nearly 100 terrorism-related arrests, “some” of which have been “thwarted” by the Section 215 program. A perusal of the list shows that many of these were thwarted through old-fashioned sting operations, with a handful of these being plots that FBI agents orchestrated in their entirety. Section 215 is completely unnecessary if you’re mainly interested in “foiling” your own plots.

So, with great vagueness, Feinstein makes these assertions and wholly expects USA Today readers to buy the narrative. The US needs a program that allows for untargeted data collection of American phone records just because sometime it might possibly prevent something. It hasn’t yet — not conclusively — but there’s always a chance it will, given the indefinite, unchallenged future Sen. Feinstein is attempting to ensure.

To its credit, USA Today has run its own editorial in response to Feinstein’s article. The response demands that the program prove itself, something it has failed to do over the years. Its lack of proven worth almost saw it closed down previously and the renewed defense of the program in the wake of the Snowden leaks has been less than inspiring. USA Today also calls out Feinstein’s wishful “could have prevented 9/11” defense, pointing out that it wasn’t a lack of data that was the problem, but rather the failure of intelligence agencies to share the data they did have. The editorial closes out with this paragraph, which nods to Ben Franklin’s famous quote.

Choosing between privacy rights and security from terrorism is difficult. But before Americans are forced to make that choice, the government ought to demonstrate that this intrusive program has extraordinary value. So far, the administration hasn’t even come close.

The NSA’s defenders are making minimal concessions to transparency, but it’s become obvious that the agency does its “best” work in complete darkness. Having its methods dragged out into the sunlight demonstrates just how invasive they are — and how little they accomplish.

Filed Under: dianne feinstein, faa, fisa amendments act, nsa, nsa surveillance, section 702