Senators Tell Court There's No Evidence That Bulk Phone Record Collection Was Useful

Say That Again

from the now-that's-an-amicus-brief dept

Here’s something you don’t see every day: three sitting US Senators filing an amicus brief against the federal government. Amicus (friend of the court) briefs can sometimes be quite useful, but all too often they’re sort of there to just reinforce certain arguments made by some of the parties. Sometimes that’s helpful, because at times they can present things in a way that is very useful for the court to understand things. It’s somewhat rarer for an amicus to really have a unique insight into the issue. But here’s one case where there’s an amicus brief with a truly unique perspective. Senators Ron Wyden, Mark Udall and Martin Heinrich are asking to file an amicus brief in one of the big cases over the NSA’s bulk collection of metadata from all phone calls. This is the case that was organized by the EFF, involving a variety of organizations, from churches to gun rights organizations to civil liberties groups and more.

The three Senators, all members of the Senate Intelligence Committee, have submitted amicus briefs to share with the court that, from what they’ve seen, there’s no evidence that the bulk data collection program has been at all useful — which is likely to be a key claim by the DOJ.

Now that the government’s bulk call-records program has been exposed, the government has defended it vigorously. Amici submit this brief to respond to the government’s claim, which it is expected to repeat in this suit, that its collection of bulk call records is necessary to defend the nation against terrorist attacks. Amici make one central point: As members of the committee charged with overseeing the National Security Agency’s surveillance, Amici have reviewed this surveillance extensively and have seen no evidence that the bulk collection of Americans’ phone records has provided any intelligence of value that could not have been gathered through less intrusive means. The government has at its disposal a number of authorities that allow it to obtain the call records of suspected terrorists and those in contact with suspected terrorists. It appears to Amici that these more targeted authorities could have been used to obtain the information that the government has publicly claimed was crucial in a few important counterterrorism cases.

They further point out that beyond the lack of usefulness, the implications of the federal government’s interpretation of the law has a very wide impact. However, the real focus of the filing is on the supposed usefulness, and the Senators don’t pull any punches. They directly call out the NSA and its defenders for trying very hard to misrepresent and mislead the public record:

As Amici and others have made clear, the evidence shows that the executive branch’s claims about the effectiveness of the bulk phone-records program have been vastly overstated and, in some cases, utterly misleading….

For example, the executive branch has defended the program by claiming that it helped “thwart” or “disrupt” fifty-four specific terrorist plots…. But that claim conflates the bulk-collection program with other foreign-intelligence authorities.5 In fact, as Amici know from their regular oversight of the intelligence community as members of the SSCI, “it appears that the bulk phone records collection program under section 215 of the USA Patriot Act played little or no role in most of these disruptions.” …. Indeed, of the original fifty- four that the government pointed to, officials have only been able to describe two that involved materially useful information obtained through the bulk call-records program…. Even the two supposed success stories involved information that Amici believe—after repeated requests to the government for evidence to the contrary—could readily have been obtained without a database of all Americans’ call records….

In both public statements and in newly declassified submissions to the SSCI, intelligence officials have significantly exaggerated the phone-records program’s effectiveness. Based on the experience of Amici, the public—and this Court—should view the government’s claims regarding the effectiveness of its surveillance programs with searching skepticism and demand evidence rather than assurances before accepting them.

The Senators are not the only amici. There are others, including from a group of experts in the history of government surveillance (including noted NSA watcher, James Bamford), a bunch of news organizations (including the American Society of News Editors, the LA Times, McClatchy, the Newspaper Guild, Advance Publications and more), criminal defense lawyers (who apparently are realizing how the NSA has been funneling and laundering data used against their clients under “parallel construction”) and PEN American Center, a non-profit representing a bunch of writers. Still, having Senators jump into the case is big news, even if Wyden and Udall have been making their opinion clear for some time.

Filed Under: bulk collection, mark udall, martin heinrich, metadata, nsa, nsa surveillance, patriot act, ron wyden, section 215