Congressman Mo Brooks’ response to constituents questions on NSA vote and programs….

Below is a LENGTHY response by Congressman Mo Brooks Is sending to constituents who have contacted him with NSA concerns…

Thank you for contacting me about H.R. 2397, the Department of Defense Appropriations Act of 2014, and Representative Amash’s amendment (“Amash Amendment”) to gut the National Security Agency’s (“NSA”) ability to store data about telephone calls, not the content of the calls (“Telephone Metadata”) that is used in America’s defense against terrorism.

On July 24, I voted against the Amash Amendment. It failed on a 205-217 vote. A significant majority of conservative Republicans joined me against the Amash Amendment. A significant majority of Democrats voted for the Amash Amendment. “No” votes included Michelle Bachman (MN), Paul Ryan (WI), Tom Cotton (AR), Steve King (IA) and six of the seven members of the Alabama Congressional delegation.

The conservative and well-known Heritage Foundation weighed in on the issue. They stated, in part:

[The Amash Amendment] takes the wrong approach to an important question. At its core, the proposed amendment is probably unwise and possibly unconstitutional.

As a matter of policy, the amendment is a blunt instrument that summarily terminates a program that the federal government, under two very different Administrations, has thought vital. As a minimum, it appears that the Amash amendment would increase the risks of terrorist attacks by limiting the scope of court-ordered foreign intelligence collection and thereby depriving the U.S. of valuable intelligence it currently collects.

Denying the NSA . . . access to [telephone meta]data will leave the Nation at risk. Again, without more substantive consideration than is currently being given the concept, the proposed mechanism seems too blunt—and it may endanger national security.

America’s enemies are forcing us to repeatedly and perhaps permanently examine competing values: privacy versus security. Please bear with me as I address aspects of the NSA Megadata and Amash Amendment that caused me to vote as I did.

The NSA Telephone Metadata program was created by the Bush Administration and a Republican Congress in response to the thousands of innocent Americans who were murdered in New York, Washington and Pennsylvania on 9/11.

The NSA Telephone Metadata program was first disclosed to the public in USA Today articles beginning in 2006. Recently, it has received renewed scrutiny from the public, news media and elected officials.

Subsequent investigations of 9/11 concluded 9/11 could have been prevented (in whole or in part) had telephone metadata been available before 9/11. How so? Some 9/11 terrorists made calls to known foreign terrorist cells before their attacks. With telephone metadata, computers would have flagged these phone calls to foreign terrorist cells, an FBI investigation would have ensued, some of the 9/11 terrorists would have been identified and questioned, and some or all of the 9/11 attacks may have been prevented.

I have personally examined classified records that describe in detail the 54 instances in 20 countries (including America) in which the Patriot Act and NSA Telephone Metadata have combined to prevent terrorist attacks (25 plots in Europe, 13 in America, 11 in Asia, and 5 in Africa). The classified records detail the names of terrorists, the chronology of events concerning the defeated attacks, the planned attack locations and nature, and how NSA Telephone Metadata and the Patriot Act helped thwart the terrorist attacks and save innocent lives.

I recognized many of the defeated terrorist attacks from news media reports that described them when they came to public light. What I did not know until I read the classified records was the relationship between the Patriot Act and NSA Telephone Metadata and the defeat of those attacks.

Thirteen of the defeated attacks indiscriminately targeted large numbers of citizens on American soil. Two of them have been declassified: the 2009 bomb plot on the New York City Subway system and the separate 2009 plot to attack the New York Stock Exchange. While the classified information (and nondisclosure form I had to sign to read the classified documents) prevents me from going into the details concerning the other attacks, I looked at the nature of each of the planned attacks, how many Americans would have likely been killed in each attack if it had not been thwarted, and did the math. In my judgment, in just the past seven years, the Patriot Act and NSA Telephone Metadata prevented thousands of deaths across America and saved thousands more from non-lethal and perhaps disabling injuries.

With the help of NSA Telephone Metadata and the Patriot Act, numerous arrests have been made and terrorism convictions obtained. I wish I could give you the exact number, name names, and explain the connection between these arrests and convictions and America’s intelligence activities, but the connection information is classified, so I can’t.

A major problem the American people face with the Patriot Act and NSA Telephone Metadata is the difficulty in ascertaining true facts. To some degree, I am reminded of instances in which the main stream news media has gone into feeding frenzies and whipped up the populace before the true facts were known. While these media frenzies may be good for ratings (and making money), they do America a disservice when they misinform the public.

Quite frankly, there are a lot of wildly off-base and unsubstantiated claims disseminated over the internet and via the news media. In this context, some facts should be emphasized.

The NSA Telephone Metadata system the Amash Amendment sought to gut contains only four types of information: (1) the telephone number called, (2) the telephone number called from, (3) the call length, and (4) the call date and time. The Telephone Metadata does not contain any recordings or any other information about the content of the phone calls (who said what) nor (b) any information that identifies the names of who is making or receiving the calls. Further, per briefings by those with first-hand knowledge, the NSA has no other mass data storage collections.

On a related matter, Eric Snowden and The Guardian’s Glenn Greenwald recently claimed the NSA’s “XKeyscore” “can collect ‘nearly everything a user does on the internet’”. For clarity, XKeyscore is an internet search engine (albeit a very good one). It is not a database. For reference purposes, Google, Bing, Yahoo and the like are also “internet search engines”.

By law, the Telephone Metadata can only be accessed by the NSA if the call is from or to a foreign telephone number.

The Telephone Metadata has safeguards that prevent a rogue NSA employee from accessing Telephone Metadata information (caller #, callee #, length, date/time). For example, on the “input side”, if the federal government identifies a suspected terrorist’s foreign phone number, that number is entered into Telephone Metadata by one set of NSA employees who have the physical ability to enter permissible, searchable numbers into Telephone Metadata but can’t search or query the data. On the “output/search side”, NSA has 35 employees who can search a terrorist’s phone number to get the four sets of data (caller #, callee #, length, date/time). If an “output/search side” employee mistakenly or intentionally searches a phone number that does not match a suspected terrorist’s foreign phone number that has been made “searchable” by the first set of “input side” employees, then the search fails and no data is produced.

In all of 2012, the NSA did search queries on less than 300 telephone numbers through the above system! All of the telephone numbers queried met the legal standard for being associated with specific foreign terrorists or their organizations.

All of the above NSA activities leave an auditable paper/computer trail. The Senate Select Committee on Intelligence conducted an independent investigation of NSA Telephone Metadata for 2008-2012. It found that “through four years of oversight, the Committee has not identified a single case in which a government official engaged in willful effort to circumvent or violate the law.” Of course, the investigation was concluded before the treason and law-breaking of Eric Snowden.

The NSA does no investigative work of its own. Rather, it is an information collection and dispersal agency. Hence, with respect to data that involves a phone number in America that made a call to or received a call from a foreign terrorist’s phone number, the information is transmitted to the FBI, which then conducts further investigation to determine whether there is a terrorist plot underway, who is involved, and what can be done to stop them. Further, the FBI cannot get additional privacy-protected information concerning the callers and callees, to properly conduct its investigation, without a court order or search warrant.

​The judges who rule on requests for FISA court orders and other search warrants are regular federal court judges who rotate in and out of the FISA system on a regular basis. Generally speaking, federal judges are on the liberal, pro-civil rights side of the coin. Despite their natural tendencies, to my knowledge, no final federal court decision has ever determined that the FISA system violates the 4th Amendment’s ban on “unreasonable searches and seizures.” Stated conversely, to date, the courts have held that NSA Telephone Metadata protections and safeguards comply with 4th Amendment protections against unreasonable searches and seizures.

There are bad guys around the world (and, in particular, Muslim terrorists) who seek to enter America and kill thousands or even millions of Americans with nuclear, biological or chemical weapons. As you read this letter, the odds are great that terrorists are plotting to obtain such weapons, get them into America, and use them.

Thanks to the Patriot Act and NSA Telephone Metadata, combined, the federal government has thwarted, on average, more than ten terrorist attacks in each of the past few years.

While I certainly understand the distrust many Americans have for the Obama Administration (particularly in light of their notorious disregard for law and willingness to use the federal government to attack their political enemies), and while I am confident many Americans have legitimate concerns they may be targeted next, and while I understand why many Americans simply don’t like the storage of phone company call data in a large database, I have to weigh these factors against the certainty of prevented American deaths in the past and the high probability of prevention of American deaths in the future.

No question, America faces tensions as we weigh the potential harms from government collection of intelligence information against the harm terrorists desire to inflict on us (potentially including the use of biological, chemical and nuclear weapons). To me, there must be an appropriate balance between ensuring the needs and safety of the American people, while protecting individual privacy.
The key contrast point is this: America’s counterterrorism program has thwarted at least 54 attacks on Americans or our allies and there has not been a single reported case of significant misuse or abuse of the Patriot Act or NSA Telephone Metadata.

The sum of the above factors caused me to disagree with Congressman Amash’s desire to gut NSA’s Telephone Metadata. Quite frankly, I am not yet prepared to kill Telephone Metadata and thereby help terrorists kill innocent American citizens.

Never-the-less, I am willing to review the Telephone Metadata program and my stance as additional evidence and fact-based information comes to light and as circumstances warrant. Any such changes ought to proceed through a regular legislative process so the effects can be understood and debated fully. Congressman Amash’s Amendment, a funds limitation provision on an appropriations bill that allowed only ten minutes of House floor debate, was an irresponsible way for Members to address their concerns about the NSA Telephone Metadata program.

Feel free to contact me again in the future. You may wish to visit my website at http://brooks.house.gov/ for additional information about issues and legislation before Congress.

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27 Responses

  1. In what years were the prevented attacks? Prior to the publication in 2006 of the basic details of the NSA phone logging program?

    I doubt the real terrorists use the phone much anymore, or dont use the same phone for more than a few weeks.

    • Hi George:

      All of the 54 prevented terrorist attacks were 2006 or later. None before 2006.

      Unfortunately, the more Snowden and others publicize our counter-terrorism efforts, the more terrorists learn about what we do and the more terrorists adjust their tactics to make our protective efforts more difficult.

      The cell phone issue is a good example. Some terrorists still use cell phones (they do, after all, have to somehow communicate with each other to coordinate their attacks). You are likely correct when you speculate that they may use a cell phone for only a short period of time and then move to another cell phone. This makes protecting Americans from terrorists tougher but not impossible.

      Mo

      • I should add that the NSA telephone metadata program was first publicly disclosed in 2006. For example, one article about it ran in USA Today.

        Fortunately, some terrorists never read or heard about it. Hence, it is still successful. In that 2006-2013 range, the later the years, the more terrorist attacks prevented per year.

        Mo

        • Mo, I don’t get why congress has walked in lockstep with 2 administrations to expand government power beyond constitutional limits, in response to a phenomenon that directly affects very few Americans.

          Death from lightning strike, or highway accident, or falling in the bathtub are all many times more likely than death by terrorism.

          My observation is that people are becoming as much or more alarmed by this illegal government expansion than they are by terrorism.

          Protecting Americans from terrorism never has been and should not be the primary purpose of the federal government.

          • “If you aren’t doing anything wrong, why should you fear being spied upon?” Isn’t that what y’all said when it was revealed Bush and Dick passed the Patriot Act and established FISA, and it was revealed the administration was spying on thee American people without a warrant?

            “Bush and Dick are keeping us safe” It’s that what y’all said after 9/11 when Bush and Dick created the largest government in U.S. History with the creation of the Department of Homeland Security and TSA and the color coded Terror Alerts?

            “We are fighting them over there so we won’t have to fight them over here” Isn’t that what y’all said when Bush and Dick sent our troops to war in Iraq and Afghanistan?

            • FISA has been around a lot longer than that, try 1978 and Carter. Do some research.

              I still have no qualms with the original PATRIOT Act. But that did not grant blanket authority to monitor and store information on all.

              Exactly what they are doing remains unclear (See Mo’s comments). It’s a trust issue, and trust is in short supply these days.

            • Warrant-less wire tapping of international calls to known terrorists, is a lot different than recording every call, email, and web search of every American citizen. If Bush was doing anything remotely like this I would have had a big problem with it. Do you have a problem with Obama’s NSA programs? This won’t go away. There will be another conservative president one day, and when he takes office he will have this program at his disposal. Will you like it just as much then?

            • I am not sure what your point is but to regurgitate a bunch of talking points from 2004.

            • The feds never stopped the Total Information Awareness program that started in 2002, which was intended to grab all personal electronic data. What has now come out is that the NSA is allowing foreign entities to analyze the data, and those entities have no obligation or reason to abide by any US laws.

            • The point is y’all didn’t have a problem with spying on the American people without cause when Bush was the pResident.

            • I had no problem with foreign spying. Massive data collection of US citizens? Yeah, I have a problem there.

              You had a problem with foreign spying and no problem here?

        • The terror attacks prevented have much the same ring as the term “jobs saved or created” Plus the numbers don’t add up. Storing only metadata would take a tiny fraction of the capacity of the storage facilities we are putting online. Are we storing much more? or are we colossally wasting government money by building a facility 100,000 times bigger than it needs to be. The NSA’s own website puts the capacity in zettabytes. Each zettabyte is a thousand exabytes and Eric S. broke down the math on an exabyte. Why do you need multiple zettabytes to store metadata. You could store metatadata from now till our sun burns out with that much capacity. Math, Mo. Justify the numbers to the american people. Otherwise you’re just talking, and there’s already a surplus of that.

  2. The fact that there is some oversight data provided to Congress gives me *some* reassurance.

    However… the NSA’s **OWN WEBSITE** says they collect far more than ‘metadata’!! http://nsa.gov1.info/utah-data-center/ (scroll down to Technical Specifications… the list of data gathered is in the graphic, and it is FAR more than ‘metadata’). So, the “it’s only metadata” argument falls flat on its face.

    Also, We the People are to trust the same Administration that used the IRS to persecute the Tea Party? As Ronald Reagan said, “Trust, but verify.” I can’t say how the additional trust-building measures might come about, but I submit that *some* middle ground between becoming vulnerable & creating Big Brother MUST be found.

    • I was opposed to the Amash Amendment, but of course there is no level of assurance that should make one feel very comfortable with the NSA and what it is doing. I think your comment on the IRS is correct. We have government that is much too big and now it is demonstrating in too many ways that it is not to be trusted.

    • That is **NOT** the NSA site. It even says so on the site, bottom of the page:
      “This is a parody of nsa.gov and has not been approved, endorsed, or authorized by the National Security Agency or by any other U.S. Government agency.”

      Using .gov1.info as the server, is reminiscent of phishing methods, tricking people into think they are going to one place but actually going to another.

      • Thanks for catching that! Boy do I feel stupid!

        My comment about trust in Gov’t still stands, though.

      • Just found: http://www.forbes.com/sites/netapp/2013/07/26/nsa-utah-datacenter/ which estimates several Exabytes of storage. Assuming a billion calls a day & 250 bytes of metadata per call, that’s about 10,000 years of metadata.

        Put another way, each Exabyte is about 10 MB per person in the US per day for a year. So, yes, that *could* capture every FB post, email, tweet, & w/ compressed sound every phone call. However, NSA has a lot more to store than just our stuff.

        So, it *could* be all just as we’re told… OR it could be a bit more. So we’re back to the trust thing.

  3. I also doubt Moe’s assertion of the thousands of people this program has supposedly saved. His defense of the program the other day was incredibly weak. I’m usually a Moe fan, but he lost me the other day. The potential for abuse is just staggering.

  4. “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” – Benjamin Franklin, 1775

    I think that sums up my position fully.

  5. The latest story in The Guardian posted 8/1/13 descibes secret payments from the NSA to the UK equivalent agency, GCHQ. It may be illegal for the NSA to analyze data from Americans but there is probably no law prevented the UK from doing so. Its well documented that the CIA and the Mossad trade duties to avoid such legal entanglements.

  6. We need to decide if the 4th Amendment is the Law of the Land.
    If so, Obama and NSA are law breakers.

    If the justification for doing total wire tapping on all citizens is good and justifiable, then the 4th Amendment needs to be repealed.
    Our Forefathers gave us the right to privacy and wrote it in the 4th Amendment, preventing any big government from monitoring our lives. To ignore and override the 4th Amendment and for Obama to decide what the correct laws should be, is similar to what Hitler did in Germany. The 4th Amendment provides that only a court (not a secret Obama lynching squad) will decide if the privacy may be observed by the Government.

    WE do not trust the Obama Administration, who has proven that they will use government agencies like the IRS or Justice Dept to suppress tea party people and Christians.

    • There is a FISA court opinion issued in 2011 that describes in detail how the activities of the NSA are illegal and violate the 4th. The opinion has not been made available to the members of Congress that have asked to read it due to security concerns I presume.

      • George, how are you privy to that decision then?

        Sounds like some internet rumor (Alex Jones maybe?)

          • The FISA court opinion deals with Section 702 of the FISA Amendments Act of 2008 and it allows for the collection of data from non-US persons reasonably believed to be located outside of the United States.

            https://www.eff.org/deeplinks/2013/06/government-says-secret-court-opinion-law-underlying-prism-program-needs-stay

            http://www.aclu.org/files/pdfs/natsec/faafoia20101129/FAAFBI0536.pdf

            The government sought to block EFF’s FOIA suit by arguing that only the FISC, itself, can release the opinion. In an effort to remove that roadblock, EFF filed a motion with the FISC on April 22 seeking the surveillance court’s consent to disclosure, should the document be found to be otherwise subject to release under FOIA. In its response filed with the FISC today, the government offers a circular argument, asserting that only the Executive Branch can de-classify the opinion, but that it is somehow prohibited by the FISC rules from doing so.

            The government’s argument is guaranteed to make heads spin. DOJ earlier argued that it lacks discretion to release the FISC opinion without the FISC’s consent, but DOJ now argues that if the FISC were to agree with EFF, “the consequence would be that the Government could release the opinion or any portion of it in its discretion.” But FISC material is classified solely because the Executive Branch demands that it be, so release of the opinion has always been a matter of Executive discretion.

            Frankly, it’s difficult to understand what DOJ is saying. The Government seems to have a knee-jerk inclination towards secrecy, one that often – as in this case – simply defies logic. The government’s bottom line is this: their rules trump the public’s statutory rights. But it’s not the province of the Executive branch to determine which rights citizens get to assert.

            • There are secret court opinions we know about and opinions we dont know about. Sometimes, you dont know what you dont know.
              Ya know?

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