The New Debate on Restarting Mass Antiterror Surveillance in the Wake of the Snowden Revelations

November 20, 2015

The Decline of Antiterror Surveillance

The Islamic State attacks in Paris have reopened the debate over antiterror surveillance, and a good thing too. President Obama’s CIA director John Brennan said this week that it has become more difficult to identify terrorists and break up their plots “because of a number of unauthorized disclosures and a lot of hand-wringing over the government’s role.”

Mr. Brennan mentioned no names, but by “unauthorized disclosures” he surely meant Edward Snowden, the spook who stole and absconded to Russia with details of the National Security Agency’s most highly classified antiterror surveillance programs. Jihadists responded by changing their communications habits, making them harder to detect.

We’ll learn more about why the French failed to prevent the Paris massacre, but it’s already obvious that it was in part an intelligence failure. French security had at least one, and maybe more, of the jihadists on their watch lists. But they either lost track of their movements, or failed to find or properly read clues about their intentions. The French are good at local surveillance—and you can bet they aren’t following the U.S. Army Field Manual in their interrogations—but the West needs global intelligence collection to fight global jihad.

All of which makes the decline in U.S. intelligence capabilities alarming. Start with the end of the NSA’s authority to collect and store telephone “metadata”—such as the numbers called but not the names or content of the calls. (For the latter the NSA needs a court warrant.) After Mr. Snowden’s thievery, the political class panicked, Mr. Obama called for the program’s abolition, and in June Congress voted to kill it.

Senior GOP leaders in Congress knew better, but they faced a revolt from their rank and file fanned by talk radio and Senators Rand Paul and Ted Cruz. So Congress voted to bar NSA metadata collection, claiming that private telecom companies could collect and store the data instead. But the USA Freedom Act includes no such requirement, and some companies have told customers they’ll not do so.

This means that if there is a terror attack next year, and the NSA goes looking for metadata to connect dots it previously missed, there will likely be no such metadata to search. The whole point of collecting details like telephone numbers is to use big-data analysis to find patterns you might not otherwise see.

The GOP did save Section 702 of the Foreign Intelligence Surveillance Act (FISA) that authorizes foreign-to-foreign wiretaps and is subject to oversight from the FISA court. But our sources tell us that the Administration has put restraints on this program in practice that reduce the quality of its intelligence collection. One example: A greater burden on showing the FISA court that both ends of a communication are not U.S. citizens.

Congress can’t micromanage how the executive branch does this task, but executive officials and FISA court judges should understand that if there is an attack in the U.S. their decisions will be scrutinized for responsibility.

Republican Senator Tom Cotton (Arkansas) says he plans to offer legislation to revive NSA metadata collection, and we hope he gets a floor vote. It’ll be fascinating in particular to see how Ted Cruz would vote. The Texas Senator voted for the bill to kill metadata collection, and in May he made a florid floor speech touting himself as a civil libertarian for doing so.

Florida Senator Marco Rubio, who is also running for President, opposed the bill and is now hitting Mr. Cruz for bad judgment in killing a useful antiterror tool. Voters can decide whether Mr. Cruz was wise to side with Mr. Obama and progressives to grab some libertarian primary votes.

The FBI and CIA are also concerned about the “end-to-end” encryption of cell phones that makes it easier for terrorists to block all telephone or digital monitoring. Apple and Google have encrypted their latest operating systems in such a way that the companies can’t access cell-phone communications even under a subpoena. This lets them tell users that governments can’t monitor their messages.

There are good arguments on both sides of the encryption debate, but the Paris massacre makes resolving the question more urgent. If encryption truly blinds government security services to terror plots, then some compromise is needed. The CEOs of these private companies should think carefully about the political backlash if there is a mass-casualty attack and the terrorists shielded their plot behind encrypted phones.

Terrorists have an asymmetric first-strike advantage against free societies, which makes intelligence and interrogation essential for the defense of democracies. First Mr. Obama watered down U.S. interrogation, and the Snowden panic has done the same to intelligence collection. This amounts to unilateral disarmament in a world where, as Paris reminds us, terrorists can kill by the hundreds or thousands.