Yochai Benkler writes: Congress may be on the verge of prohibiting the NSA from continuing its bulk telephony metadata collection program. Two weeks ago, the Senate national security dissenters: Wyden, Udall, Paul, and Blumenthal proposed prohibition. Last week, the move received a major boost from a bipartisan proposal by core establishment figures: Senator Patrick Leahy, and Representatives Jim Sensenbrenner and John Conyers.
It’s a prohibition whose time has come. Dragnet surveillance, or bulk collection, goes to the heart of what is wrong with the turn the NSA has taken since 2001. It implements a perpetual “state of emergency” mentality that inverts the basic model outlined by the fourth amendment: that there are vast domains of private action about which the state should remain ignorant unless it provides clear prior justification. And all public evidence suggests that, from its inception in 2001 to this day, bulk collection has never made more than a marginal contribution to securing Americans from terrorism, despite its costs.
In a 2 October hearing of the Senate judiciary committee, Senator Leahy challenged the NSA chief, General Keith Alexander:
Would you agree that the 54 cases that keep getting cited by the administration were not all plots, and that of the 54 only 13 had some nexus to the US? Would you agree with that, yes or no?
Leahy then demanded that Alexander confirm what his deputy, Christopher Inglis, had said in the prior week’s testimony: that there is only one example where collection of bulk data is what stopped a terrorist activity. Alexander responded that Inglis might have said two, not one.
In fact, what Inglis had said the week before was that there was one case “that comes close to a but-for example and that’s the case of Basaaly Moalin“. So, who is Moalin, on whose fate the NSA places the entire burden of justifying its metadata collection program? Did his capture foil a second 9/11?
A cabby from San Diego, Moalin had immigrated as a teenager from Somalia. In February, he was convicted of providing material assistance to a terrorist organization: he had transferred $8,500 to al-Shabaab in Somalia.
After the Westgate Mall attack in Nairobi, few would argue that al-Shabaab is not a terrorist organization. But al-Shabaab is involved in a local war, and is not invested in attacking the US homeland. The indictment against Moalin explicitly stated that al-Shabaab’s enemies were the present Somali government and “its Ethiopian and African Union supporters”. Perhaps, it makes sense for prosecutors to pursue Somali Americans for doing essentially what some Irish Americans did to help the IRA; perhaps not. But this single successful prosecution, under a vague criminal statute, which stopped a few thousand dollars from reaching one side in a local conflict in the Horn of Africa, is the sole success story for the NSA bulk domestic surveillance program. [Continue reading…]