National Review Online - Say No to Data Disarmament

Op-Ed

Let's amend the USA FREEDOM Act so it won't handicap our counterterrorism efforts.

After being drafted just two weeks ago, the USA FREEDOM Act is poised to overhaul how we investigate terrorism. From beginning to end, the consideration of this bill has been rushed, and it has lacked open debate. The draft was rushed over a weekend and it is now being considered on the floor under a closed rule to silence any potential debate. For a bill this important to national security, it is stunning that the entire process from Judiciary Committee to the final floor vote lasted just two weeks and had so little input from the vast majority of members of Congress. There has been a fundamental breakdown in the process on this bill, and this vital national-security issue deserves more consideration than it has received.

The goal of the USA FREEDOM Act is to end government bulk data collection of call-detail records. I firmly believe almost every American shares the same goals of promoting the privacy of citizens and also of protecting citizens from terrorists. Both of these concerns must be debated fully before we change the way our intelligence community operates. So far, this debate has focused on privacy, and I support that debate because it is important to protect against unwarranted intrusion on the private lives of citizens. However, we also must consider the national-security dangers we face in this world.

It is important to acknowledge that the idea of bulk data collection was not formed to invade privacy. It was, instead, a response to an intelligence gap discovered in the wake of September 11, 2001. One of the 9/11 hijackers, Khalid al-Mihdhar, in the lead-up to the attack, made calls to a safe house associated with al-Qaeda in Yemen. The NSA intercepted seven calls from him to Yemen, but did not have adequate information on whether or not Mihdhar was in the United States. The bulk collection program would have allowed investigators to discover that Mihdhar was calling with a domestic number. That knowledge could have led to his arrest, and to information on the hijacking plot and his co-conspirators. We can never anticipate all the threats that could come in the future, but unilaterally disarming in the Information Age clearly puts us at a greater risk.

In an attempt to offer a commonsense remedy to bridge the information gap that USA FREEDOM would create, I offered an amendment in the Judiciary Committee to allow elements of the intelligence community to negotiate with telephone-service providers to compensate them for retaining the valuable records we may need. This solution is one that clearly stakeholders are comfortable with from a privacy standpoint, as the underlying measure carries with it the expectation that data would be retained by providers for 18 months. Without my amendment, our access to valuable call-record data for protection of national security and evidence for terrorist prosecutions will be drastically reduced. The USA FREEDOM Act relies on private companies to maintain, store, and protect the data.

My amendment provides no mandate to negotiate or reach an agreement, nor does it specify any details of what a possible agreement must entail. These records have been vital to national security in the past and will continue to be necessary to fully defend our nation in the future. Empowering the intelligence community to reach out to private industry to preserve these records is the right step to create the balance we seek between security and privacy. Before we radically reform how the intelligence community keeps us safe, we at a minimum should have a meaningful debate.

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