A Kansas Republican has introduced the House version of legislation that would preserve metadata obtained under the National Security Agency’s bulk collection program, which expired last month.
“The USA Freedom Act made significant and detrimental changes to the NSA’s metadata program, which had played a major role in the disruption of terrorist plots across the globe,” Rep. Mike Pompeo said in a statement to the Washington Examiner. “The Liberty Through Strength Act II will restore critical tools to our intelligence community, allowing it to keep our country safe in a way that protects every American’s constitutional rights.”
Pompeo’s proposal would serve as a companion to legislation introduced in the Senate by Arkansas Republican Tom Cotton.
The USA Freedom Act, signed into law this year, replaced the NSA’s bulk metadata collection program effective Nov. 29. Under the new program, officials must seek a warrant from the Foreign Intelligence Surveillance Court that names a specific person, device, account or identifier, and then obtain the data from telecommunication providers.
The agency set Feb. 29, 2016 as the tentative deadline to destroy data collected under the previous program, though it does not have access to the data for intelligence purposes. Pompeo’s bill would extend that deadline, and allow the agency to preserve such “legacy data” for five years from the time it was collected.
The previous data collection regime, known as the “Section 215” program for an authorizing provision in the Patriot Act, became the subject of elevated scrutiny this month after it was discussed at the Republican presidential debate Dec. 15, with candidates seeking to distinguish themselves over the program.
Sen. Marco Rubio, R-Fla., who has co-sponsored Cotton’s proposal, claimed the USA Freedom Act had eliminated “a valuable tool … quickly and rapidly access phone records and match them up with other phone records to see who terrorists had been calling.”
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Sen. Ted Cruz, R-Texas, responded by pointing out that the new program makes a substantially greater amount of data available to authorities. The precise figures are classified, but some reports indicate the old program made as little as 20 percent of metadata available. Cruz noted that “nearly 100 percent” is available under the USA Freedom Act and said Rubio “knows what he’s saying isn’t true.”
Pompeo echoed Rubio’s message. “What matters most is not the number of records theoretically subject to query, but the amount of data that can be obtained quickly, efficiently and reliably,” he said. “On those measures, the USA Freedom Act is demonstrably inferior to both the previous law and to what I am proposing in my bill. The president has intentionally misled the American public by arguing that the USA Freedom Act improves our intelligence capacity, it does not,” Pompeo added.
Notably, Pompeo aligns with Rubio on more than one issue and has endorsed him for president. Electing a like-minded candidate to the White House would be critical to their cause: The USA Freedom Act passed the Senate 67-32, and the House 338-88.
Proponents of the old surveillance program point to what they see as indicators of its necessity. In mid-2013, former NSA director Gen. Keith Alexander said the program had stopped more than 50 terrorist attacks since 2001, against targets that included the New York Stock Exchange. Additionally, Adm. Michael Rogers, the current director of the NSA, said last week that the new program is “not an insignificant challenge” in terms of obtaining records quickly.
Several of the Republican presidential contenders would prefer to leave the past in place, and oppose reviving the old method’s bulk surveillance. Sen. Rand Paul, R-Ky., takes an even stronger stance in favor of privacy than Cruz. Paul voted against the new program on the basis that it goes too far.
Yet for those hoping to see the old program return, there is at least one alternative to Rubio.
“I tend to err on the side of security, I must tell you,” Republican front-runner Donald Trump said when asked about the collection program authorized under the Patriot Act. “When you have the world looking at us and would like to destroy us as quickly as possible, I err on the side of security.”
Asked whether he had substantial differences with Trump on the matter, Pompeo demurred and reiterated that his foremost goal was to pass the legislation.
“I welcome everyone — and every presidential candidate — that is prepared to be serious in developing the intelligence infrastructure we need to defeat radical Islamic terrorism,” Pompeo said.
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“In preventing terrorist attacks or, God forbid, investigating another one, we need to have every legal means at our disposal to track down and punish the perpetrators,” he added. “We must allow our intelligence warriors to continue to do their important work.”
