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Privacy Panel Report Undercuts Snowden's NSA Claim

Privacy Panel Report Undercuts Snowden's NSA Claim

By Bill Scher - July 7, 2014

If you blinked you probably missed it, but the government’s privacy watchdog panel just declared, in a unanimous report, that the National Security Agency’s phone and email collection program is “valuable and effective in protecting the nation’s security” with “no evidence of intentional abuse.”

The prior report from the Privacy and Civil Liberties Oversight Board received gobs of press attention. But that January report, with the board divided 3-to-2 on its conclusions, deemed the NSA’s domestic metadata collection program in violation of the law. “Illegal and Should End” blared the headlines in both the New York Times and Washington Post. Last week’s report had the temerity to validate a government surveillance program. Boring.

Of course, it’s not boring at all that the PCLOB, so recently the toast of NSA critics, has just destroyed what Edward Snowden and his allies considered their game-set-match talking point -- that our own government said the NSA’s surveillance program was both illegal and impotent against terrorism. As Snowden testified to the European Parliament in March of this year:

“In the United States, the heads of our spying services once claimed that 54 terrorist attacks had been stopped by mass surveillance, but two independent White House  reviews with access to the classified evidence on which this claim was founded concluded it was untrue. … Looking at the U.S. government's reports here is valuable. The most recent of these investigations, performed by the White House's Privacy and Civil Liberties Oversight Board, determined that the mass surveillance program investigated was not only ineffective -- they found it had never stopped even a single imminent terrorist attack -- but that it had no basis in law.”

Snowden’s statement was untrue in March and it’s even more untrue now. But he was right on one count: “Looking at the U.S. government’s reports here is valuable.”

The matter can be easily confused because the two independent White House panels, the PCLOB and the President's Review Group on Intelligence and Communications Technologies (PRGICT), analyzed two different NSA programs. In the case of the PCLOB, the two programs were not reviewed at the same time.

One program, known as the Section 215 program, is the domestic telephony metadata collection program established under the Patriot Act. The other is the called the Section 702 program, the phone and email content collection established under the Foreign Intelligence Surveillance Act. It is the Section 702 program -- as it deals with content -- that provides critics with the incendiary claim that the government is reading your emails and listening to your calls.

The Section 215 program has taken the harder hit from both panels. That’s what the PCLOB said should be scrapped. And that is the program the PRGICT said in December had not been “essential” in preventing terrorist acts to date, though that panel argued it should be reformed, not terminated. (One PRGICT panelist has gone as far as arguing that the Section 215 program has the potential to stop the next 9/11, even if it hasn’t stopped a terror plot yet.)

What Team Snowden neglected to mention at the time was that the PRGICT also analyzed Section 702 in its December report, while the PCLOB said in January it was going to address it at a later date.

When Snowden claimed in March that both panels found that the stopped “54 terrorist attacks” claim was “untrue,” in regards to the Section 702 program, PRGICT had already said the exact opposite:

“During the course of our analysis, NSA shared with the Review Group the details of 54 counterterrorism investigations since 2007 that resulted in the prevention of terrorist attacks in diverse nations and the United States. In all but one of these cases, information obtained under section 702 contributed in some degree to the success of the investigation. Although it is difficult to assess precisely how many of these investigations would have turned out differently without the information learned through section 702, we are persuaded that section 702 does in fact play an important role in the nation’s effort to prevent terrorist attacks across the globe.”

Now Snowden’s claim has even less merit, because last week the PCLOB weighed in on Section 702 and its relevance to the 54 prevented plots (while also noting that “other examples have been shared with the Board more recently”). The PCLOB not only agreed with the PRGICT, it also added new details:

“In the vast majority of these cases, efforts undertaken with the support of Section 702 appear to have begun with narrowly focused surveillance of a specific individual whom the government had a reasonable basis to believe was involved with terrorist activities, leading to the discovery of a specific plot, after which a short, intensive period of further investigation ensued, leading to the identification of confederates and arrests of the plotters.

“A rough count of these cases identifies well over one hundred arrests on terrorism-related offenses. In other cases that did not lead to disruption of a plot or apprehension of conspirators, Section 702 appears to have been used to provide warnings about a continuing threat or to assist in investigations that remain ongoing. Approximately fifteen of the cases we reviewed involved some connection to the United States, such as the site of a planned attack or the location of operatives, while approximately forty cases exclusively involved operatives and plots in foreign countries.”

Prominent NSA critics, led by Snowden, have gone as far as saying that these surveillance programs have nothing to do with terrorism. Last year Snowden argued during an online chat with Guardian readers that “NSA is running network operations against them that affect millions of innocent people. And for what? … So we can potentially reveal a potential terrorist with the potential to kill fewer Americans than our own Police? No…”

Recently on MSNBC, I debated the NSA programs with Snowden’s attorney Ben Wizner of the ACLU. When I questioned his “dismissiveness” towards NSA’s value in stopping terrorism, he responded that terrorism is “not what the NSA is doing mass surveillance for. And if you believe that, you’ve been suckered.”

Wizner also cited in the debate the “two review panels that have said that the NSA is out of control.” I suggest you read all the reports from the two review panels so you can see for yourself who has been suckered.

Bill Scher is executive editor of LiberalOasis and a contributor to RealClearPolitics. He can be reached at contact@liberaloasis.com or follow him on Twitter @BillScher.

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