Desperately Seeking Substance (Not Slogans) in Review Group Report on NSA Surveillance
Lawfare - Hard National Security Choices
By Peter Margulies
Thursday, December 19, 2013 at 3:00 PM
While the Report of the President’s Review Group (see Ritika’s post here and Ben’s here) has already generated classic Washington-style buzz because of its criticism of the NSA’s bulk collection of metadata, the real embarrassment should be felt by the Review Group itself. Its analysis of a central point – whether bulk collection is an effective counterterrorism tool – is scandalously slender. Moreover, the Report is awash in unacknowledged contradictions that compromise its most far-reaching recommendations. Critics of the bulk collection program will doubtless hail the Report, especially as it follows on the heels of Judge Leon’s decision. More dispassionate readers may view the shelf life of each as short.
In recommending the termination of the current program, the Report discounts the program’s effectiveness in a conclusory fashion. Labeling the program “not essential to preventing attacks,” the Review Group finds insufficient the government’s assertion that bulk collection supplied twelve tips for further investigation in 2012 alone. Apparently, twelve tips are too few. However, this kind of numerical judgment is far too hasty. Even one tip is sufficient, if it leads to useful information on terrorism. Take the Zazi case, where government officials have testified that the bulk collection program helped in the timely identification of co-conspirators in a plot to bomb New York’s subways. That role should earn the program some props. However, while the Report mentions the Zazi case in its favorable comments on section 702 and foreign surveillance, the interaction of 215 and 702 receives little attention. Indeed, the entire issue of effectiveness rates only one page in a 300-page opus.
Actually, the effectiveness issue gets even less than a page, because the Report takes up some of that space with claims about feasible alternatives to bulk collection that don’t dovetail with its other findings. The Report claims that any useful information obtained through bulk collection “could readily have been obtained in a timely manner using conventional section 215 orders” tailored to specific targets. However, the Report’s subsequent discussion casts doubt on its claims of timeliness. Discussing an alternative it prefers – entrusting bulk collection to the private sector – the Review Group concedes that this approach would be “less efficient” and could engender “problems in querying multiple, privately held data bases simultaneously and expeditiously.” Exactly so. The Report’s preferred solution is a new private sector entity that would assume the collection function now handled by the NSA. However, the Report nowhere explains how this private sector entity would dodge the potential for abuse that the Report fears. Read more » http://www.lawfareblog.com/
