On Thursday, the 2nd Circuit appeals court delivered a huge win
for people who believe in the 4th Amendment and civil liberties, even if
the court didn't make it all the way to a 4th Amendment analysis. It still showed that the big metadata collection program that the NSA (and its defenders) claim is authorized by Section 215 of the PATRIOT Act clearly was not
so authorized. The law is pretty clear that you can't do what the NSA is doing, but thanks to an ever-compliant rubber-stamp-wielding FISA Court, the program got a quick rubber stamp with little real thought. However, that's now changing (thanks to Ed Snowden...).
But the really incredible thing has been the reaction to this ruling by the politicians who are about to vote on surveillance reform. The claims are so ridiculous and so wrong
that it makes you wonder how the hell these are the people in charge of determining the future of NSA surveillance. Let's start with Senator John McCain. Rather than discuss the specific reasoning in the ruling and the failures of the NSA and Congress that the case pointed out, McCain went with the kneejerk "But 9/11!" response
even though it makes absolutely no sense at all in this context:
“It’s pretty clear that 9/11 could have been prevented if we had known about some of the communications that were linked to those who committed the terrible atrocity of 9/11.”
McCain added that the government has to balance that capacity with privacy and admitted that it has overstepped from “time to time.” While he called for a public debate to come to an agreement that balances privacy with security, he said it’s integral that Americans “understand” the threat.
“People seem to have forgotten 9/11,” he said.
“People don’t understand that there are thousands of young people all over the world who are motivated by this radical brand of Islam, which is our enemy.”
First of all, no
, 9/11 would not
have been prevented if this info had been available. While some have claimed that such a program would have allowed officials to track a phone call from Khalid al-Midhar, that story has since been debunked
, as it was noted that federal officials were already tracking such info -- they just failed to put the information together in time. Meanwhile, as for all these repeats of "9/11, 9/11," it's worth remembering that even the leaders of the 9/11 Commission have said the surveillance program goes too far
And, of course, none of that touches on what was actually in the ruling itself, which makes a really strong argument as to why the bulk phone records program is bogus and a violation of the 4th Amendment (no, it doesn't go all the way there, but lays all the groundwork for such a ruling). And, really, it's incredibly hypocritical to argue that because of an attack 14 years ago, we should completely give up our fundamental Constitutional freedoms. Is McCain seriously arguing that a single terrorist attack should wipe out the 4th Amendment?
Next up on the parade of cluelessness: Senate Majority Leader Mitch McConnell who not only continues to defend the bulk phone records collection, but is more adamant than ever that Section 215 of the PATRIOT Act must be renewed
to keep that program going -- even though the court just clearly said that the law does not authorize
such a program. But, even worse, McConnell still
doesn't seem to understand even the most basic facts about the program he thinks it's urgent to renew. His main complaint about the alternative "USA FREEDOM Act" is this:
"The USA Freedom Act would replace Section 215 with an untested, untried, and more cumbersome system. It would not end bulk collection of call data," McConnell said, referring to the provision of the Patriot Act that the NSA says justifies its bulk data sweeps. "Instead, it would have untrained corporate employees with uncertain supervision and protocols do the collecting. So it switches this responsibility from the NSA, with total oversight, to corporate employees with uncertain supervision and protocols.
Except, he's 100% wrong
. As in totally wrong. The data he's talking about are the phone records that every phone company already has and already keeps
for a certain period of time. The bulk phone records program just makes sure that the same info is also
given to the NSA. So, get rid of the program and the same employees at the same telcos with the same experience and training will still have access to it. Nothing changes
on that front, no matter what insane thing McConnell says.
But that also doesn't stop Senator Tom Cotton from making the same absolutely incorrect
"One alternative offered by opponents of this program is to have phone companies retain control of all call data and provide the NSA only the data responsive to searches phone companies would run on the NSA's behalf. This is not technologically feasible."
Uh, sure it's technically feasible. It's how plenty of other programs already function.
Seriously: how are these the people voting on this?
Or how about Marco Rubio? He also plays the stupid, wrong, debunked "would have stopped 9/11 card":
"Here's the truth. If this program had existed before 9/11, it is quite possible that we would have known that the 9/11 hijacker Khalid al-Mihdhar was living in San Diego and making phone calls to an al-Qaida safehouse in Yemen. There's no guarantee we would have known. Theres no way we can go back in time and prove it, but there is a probability that we would have known and there's a probability that American lives could have been saved."
Except, as already noted above, that claim was debunked by multiple people, including in a detailed ProPublica piece
Rubio also went further in misrepresenting the program:
"The next time that any politician—senator, congressman, talking head, whatever it may be—stands up and says that the U.S. government is listening to your phone calls or going through your phone records, they're lying. It just is not true."
Rubio is setting up a strawman here. No one is saying that they're listening to your calls or "going through" your phone records (though they are
doing that for some
people. But everyone (now) openly admits that the NSA collects those phone records -- and that's the thing people are concerned about.
Finally, we have Senator Richard Burr, the head of the Senate Intelligence Committee, who's supposed to understand these programs. Yet he screwed up so badly that his office had to issue a correction
and go back and literally rewrite the official transcript
, after Burr claimed that the same program sucked up IP addresses in addition to phone numbers.
Either way, there's a lot of pure FUD going on out there right now, almost all of it in the service of trying to let the NSA keep its toys and continue to undermine the 4th Amendment. Don't let them get away with it.
But, even more importantly, people should be asking: why are we letting these idiots make the decision on this stuff when they either don't understand it or are outright lying to the American public?