Thursday, May 14, 2015

Senator Rubio on the NSA

Dear Senator Rubio,

If not now, when?

That is the question that immediately comes to mind upon reading the headline of your May 10th op-ed in USA Today, which is “Sen. Rubio: Now’s no time to end NSA program”. You go on to assert that we now face “a greater threat of terrorist attack than any time” since 9/11/01, to claim that tools including the NSA’s illegal bulk metadata collection program have been “a major contributor” to our success in not suffering a major attack in the U.S. over the last 14 years, and to call for the renewal of the program as it currently stands.

Senator, although you allude to “recent court rulings”—i.e. the three-judge appeals court of the federal Second Circuit Court unanimously finding the NSA’s bulk metadata collection program illegal a few days ago—I’m not sure you fully appreciate their meaning. At the end of your op-end, you urge Congress to renew the program as it stands, but do not acknowledge that those judges found the current program illegal under the Patriot Act as it stands right now. You rejoice that at least it was not found unconstitutional, but obscure the fact that the judges declined to rule on its constitutionality because the violation of the Act itself was so blatant.

Think about what that means, Senator; even under the extraordinarily open and embracing aegis of the Patriot Act, this program went too far. It went so far that it wasn’t even necessary to rule on its constitutionality to judge it illegal. It goes far beyond what even its primary author wanted. And according to no less an authority than former NSA director Keith Alexander, the program is responsible for stopping only one or two threats since it was enacted, which is down from the over 50 he originally claimed.

Although you point to FISA court opinions that repeatedly affirm the program’s constitutionality, let me remind you that that is a court where the rulings are secret unless they are declassified, at which witnesses for the defense are not permitted to argue and where the public has no voice. Only the government is allowed to present its case. The court approved 1,816 government applications in 2012, modified 40 and denied none. Does that seem like a good environment in which to find something unconstitutional?

Moreover, the FISA court ruled in 2011 that the NSA had illegally collected domestic communications for three solid years, and found the program unconstitutional unless changes were made. From 2011 to 2012, the NSA violated privacy rules at least 2,776 times. Most of those happened by accident, but the NSA can use data that was inadvertently collected, according to the FISA court. NSA officers have spied on their love interests, and not even your colleague, Senator Grassley, has been able to obtain an accounting of how they were punished. Oh, and the GCHQ, Britain’s spy agency with whom we work, is perfectly aware of how to obtain personally identifiable information from metadata. So are we, and at least during the program’s years of secrecy, we did it all the time.

As for email accounts and credit card companies, Senator, there is a crucial difference between the NSA’s bulk collection and a private company’s: You give your data to the company by choice, and by law, you are allowed to opt out.

Senator, the world will always be dangerous, and there will always be people calling it more dangerous than it was at a previous time. There will never be a point—I think we know this after fourteen years of war—where the U.S. will be free of the specter of terrorism. There will always be some reason for people like yourself to call for surveillance in the name of security. So I ask you, Senator, sincerely: if now is not the proper time to stop, then when will ever be?