Opinion Pieces

Don't Shackle the NSA Now

National Review Online

by Rep. Devin Nunes

The Middle East is in turmoil. Syria has collapsed, essentially transforming into a giant battlefield between Sunni Islamists and Iran-backed entities. U.S. gains are still tenuous in Afghanistan, which is subject to attack from assorted terror groups, and the scheduled withdrawal of U.S. troops from there could empower warring militias and terror organizations, as is happening in Iraq. Meanwhile, many parts of Libya are now controlled by Islamist warlords.

These groups threaten U.S. interests in the region and beyond. Take the Islamic State (formerly ISIS), which has seized control of parts of Syria and Iraq and is looking to extend its jihad to other countries. The further advance of its army could have severe repercussions for our national security, including disruptions of international trade, reductions in energy supplies, massive refugee influxes, uncontrolled weapons smuggling (possibly including arms that could threaten civilian airliners), attacks on U.S. military personnel abroad, and kidnappings of American expatriates.

Crucially, terror groups are increasingly controlling territory. This affords them safe havens for plotting international terror attacks like 9/11, which of course was conceived and organized in al-Qaeda’s then-sanctuary of Afghanistan. In these areas, there is no central government authority to provide us with intelligence and to assist our battle against terrorists, as there are, to a greater or lesser extent, in Yemen, Pakistan, and elsewhere.

That’s why it’s more important than ever that the U.S. maintain strong intelligence capabilities throughout the world. But for the last year, various groups have sought to curtail our intelligence activities based on selectively presented, maliciously leaked documents about anti-terror programs that are widely misunderstood and whose effects have been wildly exaggerated.

These programs, which are subject to multiple levels of oversight by all three branches of government, have been crucial in stopping dozens of terror attacks, including plots against the New York Stock Exchange and the New York City subway system.

The House has now passed the USA Freedom Act, which will introduce new restrictions and safeguards for these programs. Because of the many layers of oversight that already exist, these reforms are largely unnecessary, but they should address all the concerns raised by press coverage of the Snowden leaks.

Of course, contrary to popular perception, the NSA is not — and never was — recording or listening to millions of Americans’ phone calls. In short, unless you’re talking to a foreign-based terrorist, the NSA is not monitoring you.

Yet the House of Representatives recently approved an amendment to a defense appropriations bill that would further hamstring our intelligence community, in some cases giving greater protections to terrorists than are afforded to everyday criminals. For example, if the NSA discovers that a terrorist in the Middle East is communicating with a U.S.-based person — whether an American citizen or not — the agency would be barred from searching many of its own databases for further information on that U.S.-based person. By contrast, if police investigators discover that a bank robber is communicating with a suspected accomplice, they would face no such restrictions in accessing other information they have about the accomplice.

These ill-conceived limitations will only benefit terrorists and our international rivals. Our intelligence community is in a constant struggle to stay one step ahead of our adversaries, and if we scale back our intelligence activities we can’t expect bad actors like Russia and China to respond in kind. Both these nations conduct wide-ranging spying operations that present a far bigger threat to U.S. citizens and U.S. businesses than do our own programs that counter them. For example, in February 2013 the cybersecurity firm Mandiant released a report exposing a major hacking and espionage operation, potentially comprising hundreds of accomplices and over 1,000 computer servers, that targeted at least 141 organizations across 20 major industries in the U.S. and other countries. Mandiant traced the operation to a Chinese military unit that’s one of more than 20 China-based groups known to conduct these kinds of activities.

We cannot allow erroneous reports about our intelligence programs to force us back into a pre-9/11 intel posture. Similar to the situation today, in the decade leading up to the 9/11 attacks, concerns about civil liberties spawned problematic restrictions on intelligence gathering.

For example, as a result of the regulatory wall preventing inter-agency information sharing, FBI agents investigating al-Qaeda member Khalid al-Mihdhar were taken off the case in late August 2001, at a time when he was inside the United States, because it was deemed to be an intelligence issue. One of these agents responded in an e-mail, “Whatever has happened to this — someday someone will die — and wall or not — the public will not understand why we were not more effective and throwing every resource we had at certain ‘problems.’” A few weeks later, on September 11, al-Mihdhar and four other hijackers crashed American Airlines Flight 77 into the Pentagon. Legal technicalities also prevented Minneapolis FBI agents from searching the hotel room and computer of 9/11 conspirator Zacarias Moussaoui after they became convinced, shortly before September 11, that Moussaoui was involved in a plot to hijack U.S. aircraft.

We should keep that history in mind when we discuss whether we should once again handcuff our own intelligence community as they work to keep us safe.