Thank you for contacting me about H.R. 2397, the Department of Defense Appropriations Act of 2014, and Representative Amash’s amendment (“Amash Amendment”) to gut the National Security Agency’s (“NSA”) ability to store data about telephone calls, not the content of the calls (“Telephone Metadata”) that is used in America’s defense against terrorism.
On July 24, I voted against the Amash Amendment. It failed on a 205-217 vote. A significant majority of conservative Republicans joined me against the Amash Amendment. A significant majority of Democrats voted for the Amash Amendment. “No” votes included Michelle Bachman (MN), Paul Ryan (WI), Tom Cotton (AR), Steve King (IA) and six of the seven members of the Alabama Congressional delegation.
The conservative and well-known Heritage Foundation weighed in on the issue. They stated, in part:
[The Amash Amendment] takes the wrong approach to an important question. At its core, the proposed amendment is probably unwise and possibly unconstitutional.
As a matter of policy, the amendment is a blunt instrument that summarily terminates a program that the federal government, under two very different Administrations, has thought vital. As a minimum, it appears that the Amash amendment would increase the risks of terrorist attacks by limiting the scope of court-ordered foreign intelligence collection and thereby depriving the U.S. of valuable intelligence it currently collects.
Denying the NSA . . . access to [telephone meta]data will leave the Nation at risk. Again, without more substantive consideration than is currently being given the concept, the proposed mechanism seems too blunt—and it may endanger national security.
America’s enemies are forcing us to repeatedly and perhaps permanently examine competing values: privacy versus security. Please bear with me as I address aspects of the NSA Megadata and Amash Amendment that caused me to vote as I did.
The NSA Telephone Metadata program was created by the Bush Administration and a Republican Congress in response to the thousands of innocent Americans who were murdered in New York, Washington and Pennsylvania on 9/11.
The NSA Telephone Metadata program was first disclosed to the public in USA Today articles beginning in 2006. Recently, it has received renewed scrutiny from the public, news media and elected officials.
Subsequent investigations of 9/11 concluded 9/11 could have been prevented (in whole or in part) had telephone metadata been available before 9/11. How so? Some 9/11 terrorists made calls to known foreign terrorist cells before their attacks. With telephone metadata, computers would have flagged these phone calls to foreign terrorist cells, an FBI investigation would have ensued, some of the 9/11 terrorists would have been identified and questioned, and some or all of the 9/11 attacks may have been prevented.
I have personally examined classified records that describe in detail the 54 instances in 20 countries (including America) in which the Patriot Act and NSA Telephone Metadata have combined to prevent terrorist attacks (25 plots in Europe, 13 in America, 11 in Asia, and 5 in Africa). The classified records detail the names of terrorists, the chronology of events concerning the defeated attacks, the planned attack locations and nature, and how NSA Telephone Metadata and the Patriot Act helped thwart the terrorist attacks and save innocent lives.
I recognized many of the defeated terrorist attacks from news media reports that described them when they came to public light. What I did not know until I read the classified records was the relationship between the Patriot Act and NSA Telephone Metadata and the defeat of those attacks.
Thirteen of the defeated attacks indiscriminately targeted large numbers of citizens on American soil. Two of them have been declassified: the 2009 bomb plot on the New York City Subway system and the separate 2009 plot to attack the New York Stock Exchange. While the classified information (and nondisclosure form I had to sign to read the classified documents) prevents me from going into the details concerning the other attacks, I looked at the nature of each of the planned attacks, how many Americans would have likely been killed in each attack if it had not been thwarted, and did the math. In my judgment, in just the past seven years, the Patriot Act and NSA Telephone Metadata prevented thousands of deaths across America and saved thousands more from non-lethal and perhaps disabling injuries.
With the help of NSA Telephone Metadata and the Patriot Act, numerous arrests have been made and terrorism convictions obtained. I wish I could give you the exact number, name names, and explain the connection between these arrests and convictions and America’s intelligence activities, but the connection information is classified, so I can’t.
A major problem the American people face with the Patriot Act and NSA Telephone Metadata is the difficulty in ascertaining true facts. To some degree, I am reminded of instances in which the main stream news media has gone into feeding frenzies and whipped up the populace before the true facts were known. While these media frenzies may be good for ratings (and making money), they do America a disservice when they misinform the public.
Quite frankly, there are a lot of wildly off-base and unsubstantiated claims disseminated over the internet and via the news media. In this context, some facts should be emphasized.
The NSA Telephone Metadata system the Amash Amendment sought to gut contains only four types of information: (1) the telephone number called, (2) the telephone number called from, (3) the call length, and (4) the call date and time. The Telephone Metadata does not contain any recordings or any other information about the content of the phone calls (who said what) nor (b) any information that identifies the names of who is making or receiving the calls. Further, per briefings by those with first-hand knowledge, the NSA has no other mass data storage collections.
On a related matter, Eric Snowden and The Guardian’s Glenn Greenwald recently claimed the NSA’s “XKeyscore” “can collect ‘nearly everything a user does on the internet’”. For clarity, XKeyscore is an internet search engine (albeit a very good one). It is not a database. For reference purposes, Google, Bing, Yahoo and the like are also “internet search engines”.
By law, the Telephone Metadata can only be accessed by the NSA if the call is from or to a foreign telephone number.
The Telephone Metadata has safeguards that prevent a rogue NSA employee from accessing Telephone Metadata information (caller #, callee #, length, date/time). For example, on the “input side”, if the federal government identifies a suspected terrorist’s foreign phone number, that number is entered into Telephone Metadata by one set of NSA employees who have the physical ability to enter permissible, searchable numbers into Telephone Metadata but can’t search or query the data. On the “output/search side”, NSA has 35 employees who can search a terrorist’s phone number to get the four sets of data (caller #, callee #, length, date/time). If an “output/search side” employee mistakenly or intentionally searches a phone number that does not match a suspected terrorist’s foreign phone number that has been made “searchable” by the first set of “input side” employees, then the search fails and no data is produced.
In all of 2012, the NSA did search queries on less than 300 telephone numbers through the above system! All of the telephone numbers queried met the legal standard for being associated with specific foreign terrorists or their organizations.
All of the above NSA activities leave an auditable paper/computer trail. The Senate Select Committee on Intelligence conducted an independent investigation of NSA Telephone Metadata for 2008-2012. It found that “through four years of oversight, the Committee has not identified a single case in which a government official engaged in willful effort to circumvent or violate the law.” Of course, the investigation was concluded before the treason and law-breaking of Eric Snowden.
The NSA does no investigative work of its own. Rather, it is an information collection and dispersal agency. Hence, with respect to data that involves a phone number in America that made a call to or received a call from a foreign terrorist’s phone number, the information is transmitted to the FBI, which then conducts further investigation to determine whether there is a terrorist plot underway, who is involved, and what can be done to stop them. Further, the FBI cannot get additional privacy-protected information concerning the callers and callees, to properly conduct its investigation, without a court order or search warrant.
The judges who rule on requests for FISA court orders and other search warrants are regular federal court judges who rotate in and out of the FISA system on a regular basis. Generally speaking, federal judges are on the liberal, pro-civil rights side of the coin. Despite their natural tendencies, to my knowledge, no final federal court decision has ever determined that the FISA system violates the 4th Amendment’s ban on “unreasonable searches and seizures.” Stated conversely, to date, the courts have held that NSA Telephone Metadata protections and safeguards comply with 4th Amendment protections against unreasonable searches and seizures.
There are bad guys around the world (and, in particular, Muslim terrorists) who seek to enter America and kill thousands or even millions of Americans with nuclear, biological or chemical weapons. As you read this letter, the odds are great that terrorists are plotting to obtain such weapons, get them into America, and use them.
Thanks to the Patriot Act and NSA Telephone Metadata, combined, the federal government has thwarted, on average, more than ten terrorist attacks in each of the past few years.
While I certainly understand the distrust many Americans have for the Obama Administration (particularly in light of their notorious disregard for law and willingness to use the federal government to attack their political enemies), and while I am confident many Americans have legitimate concerns they may be targeted next, and while I understand why many Americans simply don’t like the storage of phone company call data in a large database, I have to weigh these factors against the certainty of prevented American deaths in the past and the high probability of prevention of American deaths in the future.
No question, America faces tensions as we weigh the potential harms from government collection of intelligence information against the harm terrorists desire to inflict on us (potentially including the use of biological, chemical and nuclear weapons). To me, there must be an appropriate balance between ensuring the needs and safety of the American people, while protecting individual privacy.
The key contrast point is this: America’s counterterrorism program has thwarted at least 54 attacks on Americans or our allies and there has not been a single reported case of significant misuse or abuse of the Patriot Act or NSA Telephone Metadata.
The sum of the above factors caused me to disagree with Congressman Amash’s desire to gut NSA’s Telephone Metadata. Quite frankly, I am not yet prepared to kill Telephone Metadata and thereby help terrorists kill innocent American citizens.
Never-the-less, I am willing to review the Telephone Metadata program and my stance as additional evidence and fact-based information comes to light and as circumstances warrant. Any such changes ought to proceed through a regular legislative process so the effects can be understood and debated fully. Congressman Amash’s Amendment, a funds limitation provision on an appropriations bill that allowed only ten minutes of House floor debate, was an irresponsible way for Members to address their concerns about the NSA Telephone Metadata program.
BROOKS VOTES TO STRENGTHEN PROTECTIONS AGAINST NSA INTRUSIONS
May 22, 2014 Press Release
Washington, D.C.– Today Congressman Mo Brooks (AL-05) voted for H.R. 3361, the Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act (USA Freedom Act). This legislation adjusts the balance between privacy concerns and the need for American intelligence agencies to acquire information that helps protect America from terrorist attacks. The USA Freedom Act further protects Americans’ records of all types, including medical records, email records, telephone records, and firearm purchase records, among many others.
The USA Freedom Act advances privacy rights by:
Strengthening the prohibition on “reverse targeting” of Americans – that is, targeting a foreigner with the goal of obtaining communications involving an American.
Requiring the U.S. Attorney general to conduct a declassification review of all FISC decisions that contain a significant construction or interpretation of law, and make publicly available to the greatest extent practicable those decisions.
Requiring the government to make annual public reports estimating the total number of individuals and U.S. citizens that were subject to FISA orders authorizing electronic surveillance, pen/trap devices, and access to business records.
Congressman Brooks stated, “America must perpetually weigh the potential harms from government collection of intelligence information against the harm terrorists seek to inflict on us (including the use of biological, chemical and nuclear weapons that can kill hundreds of thousands of Americans in a single attack). There must be an appropriate balance between ensuring America’s safety and protecting individual privacy.”
Brooks continued, “I voted for the USA Freedom Act because it moves the needle in favor of privacy rights without having a significant adverse impact on national security. Time will tell whether the proper balance has been struck and whether further adjustments are needed.”
Brooks concluded, “Although this bill is not perfect, I agree with the American Civil Liberties Union that it improves on existing laws. As time passes, I will continue to weigh information on the proper balance between privacy rights and national security and I will act and vote accordingly.”