Below is a letter sent by Congressman Mo Brooks to his constituents who had contacted him with NSA concerns. I have inserted in red and (placed in parenthesis) my comments that
are responsive to his remarks.
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. (Referencing who voted for or against it should not influence
Mo’s vote – only his constitutes should influences his vote - it’s called
“representative government.”)
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. (What
argument against the amendment would cause it to be unconstitutional? It only commands by law for the government to obey the 4th amendment.)
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. (The amendment would only have limited domestic intelligence
collection – not foreign intelligence collection. Foreign collection does not require a court
order – court orders are only required by the 4th amendment when concerning
US citizens.)
Denying the NSA . . .
access to telephone metadata 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. (The Chairman of the Joint Chiefs says that the greatest
danger to the US is the national debt – he does not seem to concerned about
terrorist, not even when they are in the ranks of the armed forces.)
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 issue is not privacy or
security. It is privacy versus a run-away government heading towards a police
state.)
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. (Who started the
program, or whether it has been publicly revealed, has nothing to do with it’s
merits in regard to violating the constitution)
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. (This and other
“what if” hypothetical arguments in Mo’s response are inadequate. Most people refuse to engage in hypotheticals
because they are the least reliable form of argument for making public
policy. The accepted truth according to
the then intelligence experts is that lack of intelligence was not the reason
9/11 happened– it was sheer incompetence.)
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.
(Concerning the above three
paragraphs, it seems there are almost daily media events where US congressmen
stand before the public and complain bitterly about the administration,
including the NSA and CIA, not telling them the truth. I suppose we should be happy that we have a
congressman that is so special that they freely share the above information
with him. I am not sure which to be
impressed with most – our congressman’s temerity or naivety. Most known details about these incidents
chalk up our successes to old-fashioned gumshoe work.)
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.
(Another fallacious argument style, “I can not tell you
the facts therefore believe me”, accompanied by another “what if”
argument. I have spent 12 years out of a
30-year military career in intelligence, so I know that almost all that is
being parroted here has been randomly cobbled together and then exacerbated for
political purposes. What I do know about all this is classified information so I
cannot tell you the details, so trust me. Snowden and others are doing a pretty good job – I
am sure much more is coming, which unfortunately will provide more
embarrassment to our congressman.)
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 mainstream 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. (Of course the mass data storage
collections do not have verbal phone calls and emails – the phone calls and
emails are collected and store somewhere else in another database. The Metadata
system is only an index for the other database.
And yes, the phone calls and emails are being seized without probable cause
in violation of the 4th amendment. Just because there are seized first and maybe
later a court-ordered search of the seized data takes place does not make it
legal.)
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”. (What has this got to do with
violating the 4th amendment?)
By law, the Telephone
Metadata can only be accessed by the NSA if the call is from or to a foreign
telephone number. (Again, the following discussions are
all about “Metadata system” – not the real stuff.)
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 (and analysis, fusion, and the production of “actionable
information” - all of which are investigative functions - not merely collect and disperse.). 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. (Again, the key
word in this discussion is “Metadata” - not the actual data.)
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.
(Fact
check: The U.S. Department of State
reports that only 17 U.S. citizens
were killed worldwide as a result of terrorism in 2011. That figure includes
deaths in Afghanistan, Iraq and all other theaters of war.
Comparing the CDC numbers to
terrorism deaths means: You are 35,079 times more likely
to die from heart disease than from a terrorist attack. You are 33,842 times more likely
to die from cancer than from a terrorist attack.
Wikipedia notes that obesity is a
contributing factor in 100,000–400,000 deaths in the United States
per year. That makes obesity 5,882 to times 23,528 more likely to kill
you than a terrorist.
{Keep in mind when reading this
entire piece that we are consistently and substantially understating the
risk of other causes of death as compared to terrorism, because we are
comparing deaths from various causes within the United States against deaths
from terrorism worldwide.}
The annual number of deaths in the
U.S. due to avoidable medical errors is as high as 100,000. Indeed, one of
the world’s leading medical journals – Lancet – reported in 2011: A November, 2010, document from the Office of the Inspector
General of the Department of Health and Human Services reported that, when in
hospital, one in seven beneficiaries of Medicare (the government-sponsored health-care
programme for those aged 65 years and older) have complications from medical
errors, which contribute to about 180 000 deaths of patients per
year.
That’s just Medicare
beneficiaries, not the entire American public. Scientific American noted in 2009: Preventable medical mistakes and infections are responsible
for about 200,000 deaths in the U.S. each year, according to an investigation
by the Hearst media corporation.
But let’s use the lower – 100,000
– figure. That still means that you are 5,882 times more
likely to die from medical error than terrorism.
The CDC says that some 80,000 deaths each year
are attributable to excessive alcohol use. So you’re 4,706 times more likely to drink yourself to death than die from
terrorism.
Wikipedia notes that there were 32,367 automobile
accidents in 2011, which means that you are 1,904 times more
likely to die from a car accident than from a terrorist attack.
As CNN
reporter Fareed Zakaria writes this week: “Since 9/11, foreign-inspired terrorism has claimed about two
dozen lives in the United States. (Meanwhile, more than 100,000 have been
killed in gun homicides and more than 400,000 in motor-vehicle accidents.)"
According to a 2011 CDC report,
poisoning from prescription drugs is even more likely to kill you than a car
crash. Indeed, the CDC stated in 2011 that – in the majority of states – your prescription meds are more likely to kill you than any other source of injury. So your meds
are thousands of times more likely to kill you than Al Qaeda.
The number of deaths by suicide has
also surpassed car crashes,
and many connect the increase in suicides to the downturn in the economy. Around 35,000 Americans kill
themselves each year (and more American soldiers die by suicide than combat;
the number of veterans committing suicide is astronomical and under-reported). So you’re
2,059 times more
likely to kill yourself than die at the hand of a terrorist.
The CDC notes that there were 7,638 deaths from HIV and 45 from syphilis, so you’re
452 times more likely to
die from risky sexual behavior than terrorism.
The National Safety Council
reports that more than 6,000 Americans die a year
from falls … most of them involve people falling off their roof or ladder
trying to clean their gutters, put up Christmas lights and the like. That
means that you’re 353 times more likely to
fall to your death doing something idiotic than die in a terrorist attack.
The agency in charge of workplace
safety – the U.S. Occupational Safety and Health Administration – reports that 4,609 workers were killed on the job in 2011 within the U.S.
homeland. In other words, you are 271 times more likely
to die from a workplace accident than terrorism.
The CDC notes that 3,177 people died of
“nutritional deficiencies” in 2011, which means you are 187 times more likely to
starve to death in American than be killed by terrorism.
Scientific American notes: You might have toxoplasmosis, an infection
caused by the microscopic parasite Toxoplasma gondii, which the CDC estimates
has infected about 22.5 percent of Americans older than 12 years old. Toxoplasmosis is a
brain-parasite. The CDC reports that more than 375 Americans die annually due to toxoplasmosis. In
addition, 3 Americans died in 2011
after being exposed to a brain-eating amoeba. So you’re about 22 times more likely to
die from a brain-eating zombie parasite than a terrorist.
And the 2011 Report on Terrorism
from the National Counter Terrorism Center notes that Americans are just as likely to be
“crushed to death by their televisions or furniture each year” as they are to
be killed by terrorists.
Let’s switch to 2008, to take
advantage of another treasure trove of data.
According to the Council on
Foreign Relations, 33 U.S. citizens were
killed worldwide in 2008 from terrorism. There were 301,579,895 Americans
living on U.S. soil in 2008, so the risk of dying from terrorist attacks in
2008 was 1 in 9,138,785.
There are other comparisons
showing the relative risks of dying from various causes if one cares to search.
The best one, or maybe the worst one, is that there were at least 155 Americans killed by
police officers in the United States in 2011. That means that you were more
than 9 times more
likely to be killed by a law enforcement officer than by a terrorist. Law Enforcement officers are the agents of
the government that we are supposed to trust to protect us from terrorists.)
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.
Feel free to contact me
again in the future. You may wish to visit my website at
http://brooks.house.gov/
for additional information about issues and legislation before Congress.
(Bottom Line: Mo Brooks needs to rethink his position. This article might
also help.) http://www.atimes.com/atimes/World/WOR-01-060813.html
