The following remarks were delivered by Representative Mike Pompeo (R-KS) at the Hudson Institute event, “National Security, Privacy, and Renewing the USA PATRIOT Act” on May 13th, 2015, in Washington, D.C. A video of the event can be viewed here.
“Unlearning Costly Lessons in National Security”
Congressman Mike Pompeo
I want to thank the Hudson Institute for giving me the opportunity to talk about a very important and timely topic. In the next 19 days, America will make an important decision. Its elected officials will decide whether or not it has learned its lessons, or perhaps unlearned its lessons, from September 11, 2001. We will consider whether to renew the PATRIOT Act, and if so, how to renew the PATRIOT Act.
Whether the demands placed upon our nation in the aftermath of those terrorists attacks remain in effect and if those obligations are still necessary.
I served in the Army two and a half decades ago. We had an acronym back then: BLUF. B-L-U-F. Bottom Line Up Front. So here it is: Reauthorizing Section 215 of the PATRIOT Act, along with the other expiring provisions, is a duty that flows from my oath to defend the Constitution and my obligation as a member of Congress to keep the people of Kansas and America safe. Simply put, these legal authorities and the privacy protections that come with them save American lives.
The three provisions of the PATRIOT Act that run out on May 31st are valuable in their own right. More important, they form part of a United States intelligence collection structure that has supported American national security, including critically-important counter-terrorism efforts, for the past dozen plus years.
The attacks and criticisms of the Patriot Act are often comically shallow, but dressed up in the language of a faux-conception of “freedom” that must delight our enemies. Congress must renew these three provisions—tweak them if we must—and continue to ensure that every resource is available to our warfighters and our intelligence communities when needed to defeat Islamist terrorism wherever it raises its ugly head and threatens our citizens. FBI Director Comey, just last week, stated flatly that ISIS is recruiting “hundreds, if not thousands” to bring terror to America – surely we must be willing to extend lawful authorities to those tasked to protect us in order that they may do just that.
PRIMARY RESPONSIBILITY OF OUR FEDERAL GOVERNMENT
There is an old joke, told to me in this context by a junior NSA employee, asking, “How can you spot the gregarious people at an NSA party?” – They’re the ones looking at the other guy’s shoes!
I know many of you have met and worked with the outstanding men and women of America’s National Security Agency. They are some of our country’s most remarkable technologists, analysts, cryptographers and mathematicians. Many of them are uniformed.
The role of our FBI has expanded dramatically. These wonderful men and women now need to not only be able to write well and be in top physical condition, they also need to be extremely well versed in law and be able to develop cases against the most dangerous terrorists the world has ever known—and many of our awesome personnel at the FBI are not native English speakers.
The Treasury agents, intelligence collectors at the Department of Homeland Security, and prosecutors that work for our Justice Department – each of these agencies we have tasked with protecting America from terrorist attacks needs every tool we can constitutionally provide them. There are thousands of terrorists in this world—thousands—who would love to do harm to an American.
The Federal Intelligence Surveillance Act, in each of these components, provides one of those tools. It should not be allowed to expire.
SECTION 215 – THE OBJECTIONS
I’ll spend most of my time talking about the most important and controversial of those provisions—Section 215—but it is worth mentioning the other two as well.
Section 206 provides for roving wiretaps on a number of devices at once, common sense in today’s telecommunications environment. Section 6001 allows surveillance on “lone wolf’’ terror suspects with no known links to terrorist organizations. Given the threat in the homeland—in the past 14 months there have been two major Islamist plots disrupted, and prosecutions begun in my own State of Kansas—this provision is of great value to our nation’s security.
So, onto Section 215 and telephone metadata. Edward Snowden—who stole and released hundreds of thousands of pages of DoD secrets that had no connection to American privacy but will result in hundreds of millions of dollars in cost to America and, potentially, the loss of life of members of our Armed Forces—revealed a program whereby the United States government collects and stores business records. This so-called metadata program permits the federal government to store telephone call data—date and time of call, the calling number (from address) and the called number (to address); and the duration of the call. That’s it.
It does not permit the collection of any call content, nor the names of the callers, nor any locational information—none. It then allows for that data to be queried, under court-approved processes and only after providing the court a reasonable articulable suspicion in connection with communications from specific foreign terrorist organizations. There is no data-mining or indiscriminate sifting through the data; every single query conducted is auditable.
And what are the objections to that?
ACLU v. Clapper:
Before turning to the objections, I want to turn briefly to the recent 2nd Circuit case that ruled that the collection of telephone metadata is unlawful under current law. I say briefly, as the ruling does not really get at my mission here today of explaining why the provision needs to be renewed. It merely said that in the opinion of three Obama-appointed judges, the law doesn’t allow for the collection of telephone metadata. The opinion is of extremely limited importance. First, it is but a single circuit court’s ruling and, in fact, it is poorly written. Second, it does not reach the core question of constitutionality under the Fourth Amendment let alone the President’s powers under Article II. Finally, when we renew these provisions in the next two weeks, Congress will be making very clear that the practices in place ARE IN FACT intended by our language and the text.
The court actually acknowledged that pending legislation will likely make moot their holding and so, what are the precise objections of some of my colleagues to renewing these important provisions?
1.Violates 4th Amendment
Those seeking to prevent Section 215 renewal are not shy about declaring this law unconstitutional.
From the ACLU to digital privacy activists, the arguments of groups decrying this program as an infringement on our constitutional rights are summed up succinctly by Section 215 opponent and blogger Randy Barnett, who wrote in the Wall Street Journal, “By banning unreasonable ‘seizures’ of a person’s ‘papers,’ the Fourth Amendment clearly protects what we today call ‘informational privacy.’ Rather than seizing the private papers of individual citizens, the(y) instead seize the records of the private communications companies with which citizens do business under contractual ‘terms of service.’ These contracts do not authorize data-sharing with the government.”
First, let’s break down the “seizure” of a persons’ “private papers” argument that opponents make.
The Supreme Court has ruled that the Fourth Amendment does not provide individuals with a right of privacy in the numbers that they dial from their telephones. More broadly, the Court has concluded that any information that a person voluntarily discloses to a business or other entity loses all Fourth Amendment protection. This rule, referred to as the “third party doctrine,” means that when government agents obtain records about a person that are held by a telephone company, bank, or other institution, that does not qualify as a search under the Constitution.
It is important to note here that all the information that the NSA collects under the program has been disclosed to telephone companies by their customers.
Therefore, under the reading of the third party doctrine widely adopted in the federal courts, none of the information is constitutionally protected, and the NSA may collect it without seeking a warrant or ensuring that its behavior satisfies the Fourth Amendment’s standard of reasonableness.
The fact that the contracts entered into by the individual do not include language authorizing the sharing information with the government does not mean that access of this information is a violation of the 4th amendment.
Opponents further argue that this constitutes an ‘unreasonable’ seizure. Whether a search is reasonable, the Supreme Court has said, “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”
Moreover, particularly given the Court-imposed restrictions on accessing and disseminating the data, any arguable privacy intrusion arising from the collection of telephone metadata would be outweighed by the public interest in identifying suspected terrorist operatives and thwarting terrorist plots, rendering the program reasonable within the meaning of the Fourth Amendment.
It’s important to know that members of Congress are being at best disingenuous when they assert they don’t know how this section of the PATRIOT Act is being executed. We no longer have to guess as to how intrusive it will be or make wild claims about the impact the law will have.
The latest wild claims include: “civil liberties massively and unjustifiably compromised”; “almost-Orwellian”; “dragnet” surveillance. They shout “NSA” as if it were an evil epithet.
Some members of Congress have been complicit, and should be held accountable, for some of this misinformation. They have said they were prohibited from knowing about these programs. That is simply not true.
One of my colleagues supported this spurious claim by saying, “This is another example of the difficulty in Congress exerting any oversight of the intelligence community, because the information is frequently not made available to all members,”
It has been asserted further that “Without his (Edward Snowden’s) doing what he did, Members of Congress wouldn’t have really known about it (the NSA programs).” That couldn’t be further from the truth!
If a Member of Congress didn’t know about these programs it is because he or she didn’t do their job! They didn’t attend the briefings, read the reports, or ask questions. If any member of Congress did not know about these programs, it is an indictment on their competency, not an indictment on the NSA. That might sound mean, but it’s the rock-solid truth! It is our duty to ensure oversight of these programs.
Don’t take the tools that we need to protect Americans out of the hands of our intelligence community because Congress fails to do its job.
Section 215 is indeed entirely consistent with the Constitution —- it has oversight from all three branches of government in just the way our Founders’ had intended.
2.Doesn’t Work/Hasn’t Stopped Plots/Not Efficacious
Some have said that “even the NSA knows this program has failed.” In fact, there were stories being pushed by the anarchists a few months back that, golly gee, the NSA itself was considering ending the Section 215 program. Headlines blared: “The NSA almost ended phone spying before Snowden leaks.”
According to these articles, the NSA officials were evaluating whether the metadata collection program was worth the cost and the risk. The upshot: even the evildoers thought this one might be over the line.
So, where to begin? Let me say this emphatically: the NSA does exactly what the American people expect it to do—continually review its programs for legality, cost and effectiveness and make determinations about priorities, value and risk. The NSA is very much aware that it has constitutional and legal restraints. It also has limited resources. As such, it cannot do everything, and it needs to evaluate its programs continuously. It did. It decided this program had merit.
I applaud the NSA. I expect it to continue to evaluate this program and, should it determine that the program is no longer valuable and cost-effective, I would expect the NSA to inform the President and Congress of that. This isn’t evidence of the program’s uselessness and corruption; it is evidence that the NSA takes its responsibilities seriously and spends your tax dollars wisely.
The program has worked and is an important arrow in the intelligence quiver. Many of the terrorist plots thwarted by Section 215 remain classified, but let me highlight two that have been declassified.
In October 2007, the NSA provided the FBI with information obtained from querying the metadata obtained under Section 215. The information established a connection between a phone known to be used by an extremist overseas with ties to Al Qaeda’s East Africa network, and an unknown San Diego-based number. That tip ultimately led to the February 2013 conviction of Basaaly Moalin and three others for conspiring to provide material support to al Shabaab, a terrorist organization in Somalia with ties to Al Qaeda and that has been courted by ISIS. You will remember that al Shabaab recently conducted an attack on a Kenyan college, killing 147 people. It has also called upon its supporters to attack the Mall of America.
Then, in January 2009, using another vital intelligence program, Section 702, to monitor the communications of a foreign extremist overseas with ties to Al Qaeda, the NSA discovered a connection with an individual based in Kansas City.
NSA tipped the information to the FBI, which during the course of its investigation uncovered a plot to attack the New York Stock Exchange. NSA queried metadata obtained under Section 215 to ensure that we identified all potential connections to the plot, assisting the FBI in running down leads.
But Section 215 isn’t just about thwarting specific plots. I wish there was a Magic 8-Ball program that reveals all the details of an upcoming terrorist, but it doesn’t work that way. Intelligence gathering is more like putting together a huge jigsaw puzzle. Section 215 can provide those key corner pieces that help frame or outline the effort.
General Keith Alexander, former head of the NSA, has testified to this point several times. In 2013, he said, “The events of September 11th, 2001, occurred in part because of a failure on the part of our government to connect those dots. Some of those dots were in the United States.
The intelligence community was not able to connect those domestic dots, phone calls between operatives in the U.S. and al-Qaida terrorists overseas.”
Former FBI Director Robert Mueller reiterated this when he said that if we had had Section 215 in place prior to 9/11, we may have known that the 9/11 hijacker Midhar was located in San Diego and communicating with a known al-Qaida safe house in Yemen. We can’t remove Section 215 and return intelligence to the pre 9/11 capabilities in a post 9/11 world.
3.FISA Court is a rubber stamp; happens In “Secrecy”
Without 215, people will ultimately demand that the federal government actually undertake even MORE INTRUSIVE work to keep them safe. Remember, before FISA, before the PATRIOT Act, chief executives ever since George Washington carried out espionage—and did so for many, many years without Judicial or Congressional oversight of the intelligence community. Espionage is as old as America.
In fact, it’s much older. Contrary to the claims of the Edward Snowdens of the world, what we’ve done with the PATRIOT Act is not to provide the President with MORE power; rather, we’ve provided greater OVERSIGHT in the execution of his authority under Article II.
The PATRIOT Act actually provides the legal framework and restrictions on governmental power that the American people expect. It ensures that the Executive Branch is accountable; that it has to report failures, in addition to successes, and that its powers are contained and focused. Ultimately the PATRIOT Act creates a thorough system of checks-and-balances and oversight.
It may have been “secret” from the public before Snowden, but its oversight has been extensive: FISA Court review—Congressional review—all three branches working together—just like founders intended.
So this is not, as the privacy pretenders will assert, a “secret” program being run by three gnomes in the basement of Ft. Meade—it is a shining example of governmental checks and balances that has served our country well.
4.Hurts American Businesses
No discussion of the pending expiration of several PATRIOT Act provisions is complete without addressing the $700 billion dollar elephant in the room—Apple, in addition to Google, Microsoft, Dropbox, Evernote, Facebook, LinkedIn, Twitter, and Yahoo.
They, and many other companies, have over the past years been central partners in keeping Americans safe. They have done so while honoring their commitments to their customers, their shareholders and their country. And, for that, I am deeply appreciative. They have diligently protected their own intellectual property, the privacy and contractual rights of those with whom they provide services.
At the same time, they have reviewed the legality of requests from government for information and have, when deemed appropriate, provided that information. They have helped save many lives both here in the United States and in Europe.
Today, these companies are under assault from competitors seeking to use the Snowden leaks to feather their own beds.
That’s unfortunate, but it’s not a reason to get rid of the program. I visited the EU Parliament back in December, 2013. I was in Brussels again just this past week. There remains some concern about American actions. But much changed in this past year. France has now passed a law that makes section 215 look like child’s play not only as to its own citizens, but to Americans. That action shows that EUI parliamentarians have been wholly unaware of what their own countries are doing. The fact is, their countries are “spying” on U.S. businesses—and themselves—in ways we couldn’t imagine because those countries don’t even begin to have the protections in place we have here in the United States.
We are the only country with a Senate Select Committee on Intelligence and a House Permanent Select Committee on Intelligence. We are the only country with true internal review of intelligence collection. Every other nation simply has an executive doing whatever the heck he or she—or their intelligence services—deem useful. We are among the few nations that does have a constitution providing clear boundaries for our intelligence community.
Rather than cowering, our businesses should call out these pretenders for what they are: opportunists seeking to erect protectionist barriers against companies who are selling products far superior to those made in their own countries and which their own constituents have rejected.
There is a risk to U.S. businesses—but not from these provisions of the PATRIOT Act. Rather, the risk is from protectionists abroad that try to slander and discredit U.S. companies that have better products and services than they do.
Our response should not be to unilaterally disarm our intelligence services—each of these countries is spying on the world too—but to call them out for their deceit, and beat them in the marketplace.
CONCLUSION: Section 215 Is a Vital Part of the Intelligence System That Has Kept America Safe
It is imperative for everyone to understand that these three small pieces of the PATRIOT Act that comprise an even smaller component of the Federal Intelligence and Surveillance Act do not operate in isolation from all the other efforts of the U.S. Government to keep us safe.
The Treasury department uses payment networks to track trouble around the world. DHS uses passenger records to do the same. We have global satellite networks peering into dangerous places, and human collectors who risk their lives to glean useful information upon which policymakers can make sound decisions to keep us all safe.
For example, the FBI uses intelligence laws to search hotel records if they get a tip that a suspected foreign spy stayed at a hotel on a specific date.
If FBI agents spot a suspected spy using a credit card at a coffee shop, they can use a Section 215 order to get a record of that transaction, trace the credit card used for the purchase, and then search all the purchases made by that credit card.
Each intelligence tool contributes to the total intelligence effort. Each fills a gap. Each fits into the systemic effort to develop an intelligence picture. These are whole of government efforts.
It would be a mistake to isolate any one of these tools and say, “What’s the harm if we just tweak this a little?” without understanding the overall collective benefit of the total mosaic of intelligence tools.
Most days, America would be just fine if the United States government stopped worrying about the threat of Al Qaeda, ISIS and terrorists here in the homeland. Most days, the sun would come up, coffee would still be hot, kids would go to school and their parents would go to work.
There would still be several hundred really bad TV shows on at any one time, and very little would threaten President Obama’s ability to make his tee time.
But of course, those of us working hard to make sure Americans are safe aren’t trying to solve the problems of “most days.” No, we are working to diminish the number of days Americans will say, “I remember exactly where I was when that tragedy happened.” Most Americans, most New Yorkers, those at the Boston Marathon woke up thinking that day would be another “most days,”
That difference. The difference between “most days” and “I remember where I was days” is what the PATRIOT Act achieves through a narrow, constitutional approach to intelligence collection. We must extend this critically-important Act until the threat that emerged in the early 90s and reached a tragic peak on 9/11 has been extinguished. It is what my constituents deserve and what Americans expect.