Senator Cotton in U.S. News & World Report "We Can't Go Back to a Pre-9/11 Mentality"
Senator Tom Cotton
As Congress debates whether to reauthorize key portions of the USA Patriot Act, it is important to be clear on what those arguing "no" are asking of the American people.
They are asking to terminate an intelligence program that allows intelligence officials to identify terrorist networks, a program which multiple national security experts have testified might have prevented 9/11 had it existed in 2001. They are asking to end an intelligence program that has been vetted and approved twice by Congress, over 40 times by nearly 20 independent judges and by two presidents of both parties.Opponents are asking to strip intelligence officials of an investigatory tool widely available to law enforcement in the domestic sphere.
This program is the National Security Agency's telephony "metadata" program. Those looking to end the program entirely are asking Americans to return to a pre-9/11 mentality. And those arguing for changes to the program through the so-called USA Freedom Act are effectively asking the same. Both of these options are unacceptable, and should be unacceptable to anyone who said "never again" after 9/11.
Through this program, intelligence officials gain court approval to collect telephone billing records into one database – phone numbers, call dates and the duration of calls – from telecommunications companies. Contrary to misguided and irresponsible claims, officials do not collect names of callers, contents of calls or any other identifying or personal information. And officials cannot search or look at this data without first going through six layers of approvals – including permission by an independent judge – confirming that a search term (such as a phone number found in a terrorist safe house) is connected to a terrorist threat.
Those advocating for termination of this program carry the heavy burden of proof that we would be as secure without it. That's because the program works and protects us in two respects. First, intelligence officials of both parties repeatedly and emphatically say that it protects Americans from foreign enemies, and these officials have provided both classified and unclassified examples to Congress.
Second, officials of both parties have explained the program's multiple layers of safeguards protecting Americans from governmental abuse of the database. These safeguards go far beyond what is required by the Constitution. In the history of the program, there have been exactly zero instances of intentional abuse – not a single one.
Despite this track record of success, some opponents of the program wish to replace it with an entirely new, unproven, untested approach – the USA Freedom Act – that contains structural flaws and exposes Americans' data to greater risk of abuse. Under this bill, telecommunications companies would maintain possession of data and allow only targeted searches by intelligence officials.
But this approach simply will not work and it will leave America less safe. In fact, an independent panel of experts determined that there was no way it could substitute for the current program. "There is no technological magic," the panel wrote, that can compensate for this scheme's shortcomings.
While the NSA retains data for five years, telephone companies store data at differing intervals lasting only months. This would impair the NSA's ability to discover historical terrorist links. This is particularly worrisome with regard to terrorist sleeper cells, which may lie in wait for years before launching an attack. And, even if the data exist in the companies' databases, searches would be much slower and less reliable than with the current system. In counterterrorism, the loss of valuable days, hours and minutes may mean the difference between stopping a plot and the loss of American lives.
Finally, data stored with phone companies would not enjoy the same robust cybersecurity measures instituted by the NSA, and hackers may compromise the data in the same way that they have stolen troves of customer credit card information from major retailers.
Congress has two courses of action from which to choose. We can stay the course with a proven, effective, constitutional program using every resource possible to fight terrorists who seek to do harm to the American people. Or we can take a step back into the pre-9/11 world, and needlessly open up some of the same intelligence blind spots lawmakers have worked so hard to eliminate since that fateful day.