Republicans Make Dubious Claims in Defense of NSA Surveillance

One by one, several powerful Republican senators took to the floor Thursday morning to offer one of the most full-throated defenses of the National Security Agency's bulk collection of billions of U.S. phone records since Edward Snowden exposed the program nearly two years ago.

The crux of their argument is unmistakable: The NSA's expansive surveillance powers need to remain intact and unchanged to keep Americans safe from potential terrorist threats—and if these powers existed before Sept. 11, 2001, they may have assisted in preventing the attacks on the World Trade Center and the Pentagon.

But some of the talking points used by Senate Majority Leader Mitch McConnell and his allies appear to rely heavily on assertions that are either dubious in their veracity or elide important contextual details.

Here is a review of some of their declarations:

Claim: "Not only have these tools kept us safe, there has not been a single incident, not one, of intentional abuse of them."—McConnell

McConnell may have been referring specifically to the phone records program here, but the NSA does not, as he implies, have a spotless record.

According to a 2013 inspector general report, NSA analysts intentionally misused foreign surveillance authorities at least a dozen times in the past decade, sometimes for the purpose of spying on their romantic interests. So-called "loveint"—short for "love intelligence"—was revealed by the inspector general in response to a letter sent from Republican Sen. Chuck Grassley, who this year renewed a call for the Justice Department to provide an update on how it was handling its investigation into the alleged willful abuses and to "appropriate accountability for those few who violate the trust placed in them."

Additionally, a 2012 internal audit obtained by The Washington Post found that the NSA has violated privacy restrictions set in place for its surveillance programs thousands of times each year since 2008. The audit found that most—though not all—infractions were unintended.

Claim: "The compromise legislation rolls us back to the same thing we were doing pre-9/11."—Senate Intelligence Chairman Richard Burr

The USA Freedom Act referenced by Burr would reauthorize three key surveillance provisions under the post-9/11 Patriot Act. It would usher in several reforms related to transparency and oversight, but it would keep those authorities intact. Section 215 of the law would no longer allow for the bulk collection of U.S. phone metadata by the NSA, but the authority—created after 9/11—would still exist.

Claim: "The alternatives to the current program would not come close to offering the capabilities that now enable us to protect Americans."—Sen. Tom Cotton

Cotton's claim does not align with the stance of Director of National Intelligence James Clapper and then-Attorney General Eric Holder, who sent a letter to lawmakers last year expressing their support for an earlier iteration of the Freedom Act.

"The intelligence community believes that your bill preserves essential intelligence-community capabilities; and the Department of Justice and the Office of the Director of National Intelligence support your bill and believe that it is a reasonable compromise that enhances privacy and civil liberties and increases transparency," the letter read. That version of the Freedom Act is widely considered more limiting of surveillance powers than the one being debated in Congress this year.

Claim: "One alternative offered by opponents of this program is to have phone companies retain control of all call data and provide the NSA only the data responsive to searches phone companies would run on the NSA's behalf. This is not technologically feasible."—Cotton

The reliance on phone companies to retain call data already occurs, as they are the ones who turn the records over to the government in bulk. Cotton, who voted for a pared down iteration of the Freedom Act last year when he served in the House, cites an 85-page study from the National Research Council to support this assertion. But the Arkansas freshman appears to be conflating its findings, which dealt with whether software could fully replace bulk collection, with what backers of the Freedom Act are attempting to do.

"Although no software can fully replace bulk with targeted information collection, software can be developed to more effectively target collection and to control the usage of collected data," the report concluded. Cotton's reservations—that the new system may take longer than the old—have more to do with process than technological capabilities.

Claim: "Here's the truth. If this program had existed before 9/11, it is quite possible that we would have known that the 9/11 hijacker Khalid al-Mihdhar was living in San Diego and making phone calls to an al-Qaida safehouse in Yemen. There's no guarantee we would have known. There's no way we can go back in time and prove it, but there is a probability that we would have known and there's a probability that American lives could have been saved." —Sen. Marco Rubio

Rubio hedges his language several times with this claim, but the statement still omits important context. As reported by a 2013 ProPublica investigation, "U.S. intelligence agencies knew the identity of the hijacker in question, Saudi national Khalid al-Mihdhar, long before 9/11 and had the ability find him, but they failed to do so."

Such missed opportunities to disrupt Midhar's activities, which were being monitored by at least as early as 1999, reflect a failure of information sharing among intelligence agencies, ProPublica notes, and are described in detail in the 9/11 Commission report.