Rubio Insists NSA Needs All Our Metadata; Cruz and Paul Call Him Out

In case you hadn’t guessed, tonight’s Republican debate is all about foreign policy, ISIS, the war on terrorism, and what to do about it all. Sen. Marco Rubio has been insistent that the mass surveillance and collection of metadata by the National Security Agency (NSA) about Americans should and must continue and that it is vital to the war on terror. He was opposed to the sunsetting of Section 215 of the PATRIOT Act and its replacement with the USA Freedom Act. The USA Freedom Act stops the bulk collection and storage of telephone metadata by the NSA. Though this is what has gotten the most attention recently, due to Edward Snowden’s revelations, it’s actually only a small section of the tools the NSA and FBI have available to snoop on people, particularly when dealing with non-Americans.

Sen. Ted Cruz supported the shift to the USA Freedom Act. Sen. Rand Paul voted against the Freedom Act, but for the opposite reason as Rubio; he felt that it failed to secure Americans’ privacy nearly enough.

The Freedom Act officially was officially implemented just days before the deadly terrorist attack in San Bernardino, California. Tonight, in the wake of the attacks on Paris and in San Bernardino, Cruz was asked if he thought the changes in the rules of metadata was a mistake. He stood behind the changes and argued that allowing the mass metadata collection of Americans didn’t actually help target terrorists.

Here’s what Cruz said (transcript courtesy of The Washington Post):

And what the USA Freedom Act did is it did two things. Number one, it ended the federal government’s bulk collection of phone metadata of millions of law-abiding citizens.

But number two in the second half of it that is critical. It strengthened the tools of national security and law enforcement to go after terrorists. It gave us greater tools and we are seeing those tools work right now in San Bernardino.

And in particular, what it did is the prior program only covered a relatively narrow slice of phone calls. When you had a terrorist, you could only search a relatively narrow slice of numbers, primarily land lines.

The USA Freedom Act expands that so now we have cell phones, now we have Internet phones, now we have the phones that terrorists are likely to use and the focus of law enforcement is on targeting the bad guys.

You know what the Obama administration keeps getting wrong is whenever anything bad happens they focus on law-abiding citizens instead of focusing on the bad guys.

We need to focus on radical Islamic terrorists and we need to stop them before they carry out acts of terror.

Rubio responded:

Here’s the world we live in. This is a radical jihadist group that is increasingly sophisticated in its ability, for example, to radicalize American citizens, in its inability to exploit loopholes in our legal immigration system, in its ability to capture and hold territory in the Middle East, as I outlined earlier, in multiple countries.

This is not just the most capable, it is the most sophisticated terror threat we have ever faced. We are now at a time when we need more tools, not less tools. And that took we lost, the metadata program, was a valuable tool that we no longer have at our disposal.

But the metadata program was not a valuable tool, at least not in fighting terrorism. There is no evidence that it ever halted any terrorist attacks, and the San Bernardino attack pretty much proved its uselessness. Syed Farook was an American citizen, so he would have been a target of this mass metadata collection. We’re now getting all sorts of information after-the-fact about his communications with terrorists and the radicalization of his immigrant wife, Tashfeen Malik, which meant that there was data that was collected but the appropriate connections weren’t made in advance.

That was Paul’s point when he jumped in:

You know, I think Marco gets it completely wrong. We are not any safer through the bulk collection of all Americans’ records. In fact, I think we’re less safe. We get so distracted by all of the information, we’re not spending enough time getting specific immigration — specific information on terrorists.

In the wake of the San Bernardino attack, here are the points I mentioned about the shift from the PATRIOT Act to the USA Freedom Act.

• The new rules that somewhat restrict the mass collection of phone metadata of American citizens in the USA Freedom Act just came into play at the end of November. Its implementation could not have played any role in any sort of intelligence failure (assuming there even is one) that might have prevented this shooting. Given that we’ve been told the FBI is looking into communications between Farook and other terrorism suspects, it seems very likely that Farook’s phone metadata was indeed already previously collected and stored.
• Even under the USA Freedom Act’s guidelines, our intelligence agencies will still be able to monitor what might be going on with other guys like Farook, Americans who may have been radicalized. Officials can still get metadata information originating from individuals through telecom companies via use of search terms, such as the name of any suspected terrorists the United States is already watching. If Farook’s contact information showed up in any of the communications on the other end, feds would be able to request Farook’s data. And if there was any suspicion that Farook had been radicalized, targeted surveillance would have been a possibility and not prohibited by the Act.
• The USA Freedom Act does nothing to restrict the CIA or National Security Agency (NSA) in foreign surveillance. If Farook or Malik spoke to terrorists overseas, the USA Freedom Act does not prevent them from getting access to data from the other end of the conversation. That data could again be used as justification for heightened surveillance that specifically targeted Farook.

As an aside, The Washington Post believes that Cruz hasn’t quite properly characterized the changes from the Freedom Act. Read that analysis here.