Politico - Al Qaeda's Return Complicates Civil Liberties Debate

News Article

By:  Pete King
Date: Aug. 9, 2013
Location: Unknown

By David Nather

Al Qaeda's back, and its timing couldn't be worse for the Republicans who are taking on the national security wing of their party.

Edward Snowden reignited a debate over privacy and civil liberties that had fizzled in recent years. Just last week, civil libertarians were even picking up momentum on proposals to restrict the NSA's mass collection of Americans' phone records thanks to renewed attention in the media.

But that was before the serious new Al Qaeda threats that have forced the shuttering of 19 American embassies and consulates overseas.

Now, the libertarian Republicans who are trying to rein in the NSA -- steering their party away from the security-first mind-set that dominated for most of the post-Sept. 11 years -- will have to shout above the GOP establishment's warnings that the new dangers from Al Qaeda prove why the surveillance is necessary.

The leaders of the GOP's civil liberties wing say they're not worried. They insist they can press their case, even with the alarming reports about plans for an Al Qaeda attack -- complete with stories of exploding clothes -- because this is exactly the time when they say the public needs to be reminded not to undermine the privacy rights of law-abiding Americans.

"I think it strengthens our momentum," said Rep. Justin Amash (R-Mich.), who forced a close House vote on NSA restrictions and plans to revive the legislative push this fall. "The point of the Fourth Amendment is to protect the rights of individuals when the government would use national security concerns to violate those rights."

Rep. Morgan Griffith (R-Va.), one of Amash's allies, says they can still make the case for privacy: "I think most Americans understand there is a difference between listening to the activities of known enemies and using our surveillance to collect my mother's phone records and store them in a warehouse in Utah."

But it's going to be a tougher task than it was even a week ago. Civil liberties-minded lawmakers never could get much of a hearing for most of the years after Sept. 11, and it was only in the past few weeks that the momentum started to change. Amash had forced a House vote on restrictions for the NSA's phone surveillance program -- which he almost won -- and President Barack Obama met last week with leading Senate and House intelligence experts, including critics of the NSA program.

Now, the focus has once again shifted to stopping the next attack. For Republicans who were worried that their party would lose its edge on national security, the new dangers from Al Qaeda offer a chance to get the public on their side -- by arguing that the full range of surveillance programs is needed to detect these kinds of plots.

"I think it's going to calm down some of the stridency," said Rep. Peter King (R-N.Y.), who's exploring a White House run to stress the importance of national security. The latest Al Qaeda threat won't end the debate over the proper boundaries of surveillance, King said, but "what it is going to do is show the public how critical the NSA surveillance is."

"Right now, the enemies of the NSA have managed to demonize them into some kind of evil agency," King said. "To me, this demonstrates how good they are, how professional they are, how essential they are."

The Al Qaeda threat hasn't quite reopened the feud between Gov. Chris Christie and Sen. Rand Paul, the two potential 2016 White House candidates who bickered over Paul's skepticism of government surveillance. Christie's aides passed up a chance to comment for this article, and Paul has remained silent as well.

But other Republican national security hawks say the Al Qaeda plot makes their point about the value of surveillance. Sen. Lindsey Graham (R-S.C.) warned on CNN that any lawmaker who wants to "gut" the NSA surveillance program "make[s] us much less safe, and you're putting our nation at risk."

And they've got lots of backup from veterans of the George W. Bush administration, who insist that the growing signs of terrorist activity overseas -- which also include the Benghazi attacks and the jailbreaks in Iraq by Al Qaeda fighters -- prove that intelligence officials need the full range of surveillance tools to sweep up as much information as possible.

"It's rare to find a single, smoking-gun piece of intelligence, and you're sifting through all of the information under extreme time pressure, not a leisurely pace over the course of months," said Michael Chertoff, who ran the Department of Homeland Security in Bush's second term.

It's not just the civil liberties Republicans who will have to keep the public from getting scared away from a privacy debate. Top Democratic lawmakers, including Senate Judiciary Committee Chairman Patrick Leahy of Vermont and Sens. Ron Wyden of Oregon and Mark Udall of Colorado, have been working on their own bills to limit the targets of NSA surveillance. All will have to make sure they don't lose the momentum they gained.

There's also a new bill by Sen. Richard Blumenthal (D-Conn.) to restructure the court that approves the surveillance requests, and several lawmakers have introduced measures to disclose more information about the government's monitoring requests.

But it's the Republicans who led a backlash against the NSA collection of phone records -- including Paul and Sen. Ted Cruz of Texas, as well as Amash's allies in the House GOP rank and file -- who have the most on the line. Rep. Jim Sensenbrenner of Wisconsin, one of the authors of the PATRIOT Act, has said he's working on legislation to curtail the NSA program, too.

So far, none of these lawmakers say the Al Qaeda threat changes their plans.

Cruz spokeswoman Catherine Frazier said the senator still believes "the right balance must be struck" between surveillance and personal liberties. Sensenbrenner spokesman Ben Miller said the PATRIOT Act author, who was at the meeting with Obama last week, believes "the actions by the NSA go beyond what the law allows. Liberty cannot be overlooked in the name of security."

Amash, who says feedback from constituents so far has been "overwhelmingly supportive" of restricting the NSA, says "it's precisely because we live in a dangerous world that we have to honor the Fourth Amendment."

And Griffith, one of the most outspoken supporters of the Amash amendment, says that even though he hopes the uncovering of the new Al Qaeda plot is "an intelligence success story," there's still a difference between watching bad guys in other countries and collecting millions of Americans' phone records at home.

"It's clear that the people who don't understand our Fourth Amendment concerns will use this as an excuse to say we need security at all costs. They're two completely different animals," Griffith said.

One reason lawmakers from both parties think they can make the distinction: The intelligence on the possible Al Qaeda attack does not appear to have come from the phone call "metadata" that's the focus of the NSA debate. Instead, it's being credited to a separate program that monitors the activities of suspected terrorists overseas.

The Daily Beast reported that the intelligence came from an intercept of a conference call between Al Qaeda leader Ayman al-Zawahiri and as many as 20 other Al Qaeda members, but one of the reporters has since said that the conference call was not held over telephone lines.

The subject is so sensitive that Wyden said in a statement that he "can't go into specific details" on where the intelligence came from -- but noted that Saxby Chambliss (R-Ga.), vice chairman of the Senate Intelligence Committee, disclosed on "Meet the Press" that it came from monitoring under Section 702 of the Foreign Intelligence Surveillance Act, which targets foreign terrorist operatives in other countries.

That's the law the government has used to justify the PRISM Internet monitoring program that was also revealed earlier this year.

In contrast, the NSA debate in Congress is mainly focused on the domestic phone surveillance under Section 215 of the PATRIOT Act, which Republican and Democratic critics say has gone beyond what the law intended -- and they don't buy the Obama administration's claims that it has helped disrupt terrorist plots. Leahy has charged that the program's supporters are mixing up the two programs to make Section 215 phone surveillance look more useful than it is.

And outside groups that support the NSA bills insist the Al Qaeda threat won't take the urgency out of the debate over domestic phone surveillance. "It seems extremely unlikely that a domestic call database would play much of a role in tracking threats to our embassies overseas," said Julian Sanchez of the Cato Institute.

Chertoff, however, says intelligence officials need domestic phone surveillance, too. He cites a recent revelation about one of the Sept. 11 hijackers, disclosed in a letter to Congress declassified by the Director of National Intelligence last week, that shows a missed opportunity to detect the plot.

According to the letter, the NSA intercepted seven calls from Khalid al-Mihdhar to an Al Qaeda associate in Yemen before the attacks, but it had no way to know where al-Mihdhar was calling from. It turned out that he was calling from San Diego -- a fact that could have been a vital tipoff if the agency had known about it, Chertoff said.

The phone surveillance can also help weed out non-serious leads, Chertoff said, because if there's no connection to a domestic phone number, that's a sign that "chatter" about a plot probably isn't a serious threat to the United States.

The NSA's critics, however, insist that there just aren't enough cases where the phone surveillance has proven its value -- and that even if it was more useful, it wouldn't justify the intrusion on people's privacy.

"The intelligence agencies have to act within the confines of the Constitution no matter how effective their intelligence tools are," Amash said.