Snowden’s Misleading Testimony

NSA leaker Edward Snowden made two particularly spectacular public appearances (by remote) earlier this month; first by giving testimony to the European Parliament and second at the SXSW conference in Austin.   In both, he repeated assertions that the NSA’s phone metadata collection program had not stopped any terrorist attacks, concluding therefore that they offered no national security benefits.  He goes on to claim that the collection programs are a distraction from catching real terrorists.  According to Snowden, “suspicion-less surveillance not only fails to make us safe, but it actually makes us less safe. By squandering precious, limited resources on “collecting it all,” we end up with more analysts trying to make sense of harmless political dissent and fewer investigators running down real leads.”

In particular, Snowden refers to a December report by the Privacy and Civil Liberties Oversight Board (PCLOB) and a ruling by Federal Judge Richard Leon.  There are several flaws in relying on these documents for an authoritative conclusion about the value of the metadata collection programs.  First and foremost, both primarily address the legality and/or Constitutionality of the program.  They apply a reading of the Patriot Act, precedent, and legal reasoning to conclude that the programs conducted under Section 215 of the Patriot Act either exceeded the authority in the law, the Constitution, or both.  Most of the precedent is derived from criminal and administrative law, which is not appropriate in assessing intelligence activities.

With all due respect to the PCLOB and Judge Leon, they lack the competence to reach conclusions about the effectiveness of intelligence collection practices.  This is not the fault of either; that is not their purpose.  The Foreign Intelligence Surveillance Act recognized the judiciary’s limitations in dealing with intelligence matters and created the Foreign Intelligence Surveillance Court to help address them.  That court, and its fifteen judges, found on 36 different occasions in the last seven years that the metadata collection programs within the bounds of the statute and Constitution (as did the U.S. District Courts of Southern New York and California if one wants to play Snowden’s game of citing dueling legal arguments.)

Effectiveness, of course, is not a function of legality, which the PCLOB and Judge Leon recognized.  Effectiveness does, however, figure into the justification for the program in the sense that the NSA programs must serve a relevant purpose.  Snowden turns to anecdotal incidents that the NSA metadata program failed to prevent, including the Boston Marathon bombing and the 2009 “Underwear Bomber,” no less a threat because he failed.

Failures are horrendous.  Yet, focusing on them means disregarding the successes.  Snowden’s reference to them is more a rhetorical device than a sound argument.  Police do not stop all crime; no one proposes doing away with them.  Judge Leon instead turned to government assertions of anecdotal successes.  His findings appear more damning.  He concludes, “there is no indication that these revelations were immediately useful or that they prevented an impending attack.”  (Leon considers just three examples cited by the government.  It should also be noted that, elsewhere, government officials have asserted that roughly fifty attacks have been stopped with the help of the aforementioned programs.)

The judge might be excused for focusing on the imminence of impending attacks or the immediate utility of information culled from the collection of metadata.  He is not an expert on intelligence analysis and makes no claim to be so.  Unfortunately, it is the wrong focus.  We must approach bad actors in their entirety to understand what motivates them, what they are capable of, their allies, the environment in which they operate, and how they perceive it.  This means understanding their networks: social, political, economic, and ideological.  Communications data are crucial in this regard.  They help outline those networks, particularly in the case of terrorists, whose networks are otherwise hidden.  Even so, demonstrating this value creates a conundrum.  No single piece of information will provide all of that useful intelligence.  Thus, judging any single piece of information according to its immediate relationship to an imminent attack is misguided.  Yet, the public policy process has not identified any easily-comprehended alternative measures of value.  So, we are left with the misleading arguments of Edward Snowden, who revealed his secrets from authoritarian China and then fled to Vladimir Putin’s Russia.

The public may yet decide to discontinue some of the National Security Agency’s intelligence collection programs.  Recent polling by the Pew Research Center and USA Today indicates a slight majority of Americans disapprove of them.  As the debate unfolds, however, it is critical that we consider the overall impact on our ability to understand the country’s enemies and make informed tradeoffs, rather than succumb to misleading portrayals of the intelligence community’s effectiveness.

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