A new bill Senate Majority Leader Harry Reid has promised to bring to the floor is "extravagantly misnamed USA Freedom Act" and is "exquisitely crafted to hobble the gathering of electronic intelligence," according to a
Wall Street Journal opinion piece co-written by former CIA and NSA Director Michael Hayden and former Attorney General Michael Mukasey.
The bill would end the National Security Agency’s current collection of telephone metadata and replace it with a "cumbersome and untried process," write Hayden and Mukasey, who also served as a U.S. District judge.
That process would require the agency to jump through various hoops — including obtaining a warrant and then individually checking with the scores of individual telephone-service providers — to check on phone numbers reasonably associated with terrorist activity, they say.
Last year’s leaks of highly classified intelligence gathering techniques of telephone metadata by former NSA contractor Edward Snowden ignited a firestorm of controversy over the practice.
Since then, the two men said, Matthew Olsen, the former head of the National Counterterrorism Center, has disclosed that intelligence gathering has been harmed.
"Terrorists tracked by U.S. intelligence services have started encrypting their communications in ways that defeat detection," and the government has lost track of several of them, according to Olsen.
"Meanwhile, Islamic State terrorists continue to rampage across Syria and Iraq, even as the group, also known as ISIS, uses sophisticated Internet communications to swell its ranks with recruits bearing U.S., Canadian or European passports who can easily slip back into their native countries and wreak havoc."
Yet Reid still plans to introduce a bill that would require a warrant from the Foreign Intelligence Surveillance Court (FISA) to check on every telephone number believed to have a connection to terrorism, and then "scurry to each of the nation’s telephone-service providers to comb through the information that remains in their hands rather than in the NSA's," Hayden and Mukasey write.
No longer would the NSA collect in bulk what’s known as telephone metadata — date, time, duration and telephone numbers for all calls. Under
the USA Freedom Act, telephone companies would not be obligated to preserve the metadata for any set period of time. Current FCC regulations require the metadata be retained for 18 months.
"It isn’t hard to envision companies that wish to offer subscribers the attraction of rapid destruction of these records, or a complaisant bureaucracy that lets them do it," the men write.
Proponents argue that the change is needed to protect Americans’ communication privacy.
But according to Hayden and Mukasey, only 22 people at the NSA have access to metadata, "and only upon a showing of relevance to a national-security investigation, and they are barred from any data-mining whatsoever even in connection with such an investigation.
"They are overseen by a Madisonian trifecta of the FISA court, the executive and committees of Congress," they continue.
"Those people and everyone else at the NSA live in constant dread of failing to detect a terrorist attack. Nonetheless, the sponsors of the USA Freedom Act prefer the counsel of hypothetical fears to the logic of concrete realities."
The bill, which has received the approval of both Attorney General Eric Holder and National Security Director James Clapper — though they acknowledge that parts of it may have unforeseeable "additional impacts."
It sounds eerily similar to Obamacare and the suggestion that we should wait and find out what is in the bill until after it passes, Hayden and Mukasey say.
"Bear in mind that 'additional impacts' here may include holes in the ground where buildings used to stand and empty chairs where people used to sit," they write.
They argue that since there is
no imminent need to pass the legislation — no emergency exists and the current surveillance authorities are not expiring this year — its passage should wait until the new Congress convenes.
"The USA Freedom Act should await the attention of the Congress that will actually oversee it. A change to national-security procedures is not something to be rushed through in a lame-duck session."
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