Are the Patriot Act provisions essential for fighting terrorism?

What will happen if Congress allows key portions of the Patriot Act to expire? Judy Woodruff gets views from James Bamford, author of “The Shadow Factory,” and former Attorney General Michael Mukasey on what’s at stake, and whether the USA Freedom Act offers a better alternative.

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    And we get different views now on just what these spying powers mean, and what might happen if they expire.

    James Bamford is author of "The Shadow Factory" and he has chronicled the national security complex for decades. And Michael Mukasey is the former attorney general under President George W. Bush.

    Gentlemen, we welcome both of you to the program.

    JAMES BAMFORD, Author, "The Shadow Factory: The Ultra-Secret NSA From 9/11 to the Eavesdropping on America": Thank you, Judy.


    Mr. Mukasey, let me start with you.

    You just heard Lisa Monaco's arguments for why the administration wants these provisions to continue, with some modification, as you heard. What's your reaction?

  • MICHAEL MUKASEY, Former U.S. Attorney General:

    My reaction is that I'm with her on the continuation. I'm — where I have a problem is the modifications that they have agreed to.


    And spell that out.



    What they have done is to say that the government can't continue to keep these simply lists of numbers, with no identifying information as to the caller or the content, but rather have the carriers keep that information.

    The metadata is simply a record of a number that's called, a number that calls it, and the length of the call and the date of the call. That's all that the metadata consists of. There's no content and there's no identification of people.

    What that can be used for is that, if a suspect number is identified, and a court concurs, then they can run that number against this database of numbers to figure out whether a terrorist had either been called by or has called a number in the United States. That's the only purpose that it's put to. That's the only way that it's used.

    That information in the hands of the government is readily accessible. If you rely simply on the carriers to hold it, then there is no compulsion in this legislation for them to keep it at all. And, in fact, it's very easy to imagine them competing in eliminating or scrubbing this information in short order or in offering plans that don't require them for business reasons to keep the metadata.


    But, as we heard, James Bamford, Lisa Monaco acknowledged there is criticism of this out there. The president has decided to make this modification, to say you have to go to a court if you want to get access to this phone metadata. Your concern is that even that is not enough of a way of protecting people's privacy.


    I think there's really two issues here.

    One of them is whether it's useful or not. You have had the courts, first of all, declare it illegal. Judge Leon in the U.S. District Court in Washington call it Orwellian. So, is it legal? The courts are saying it's illegal. The appeals courts said it's illegal.

    Second of all, is it useful? You have had the president's review board come out and say that there was nothing useful that has ever come out of it. The bipartisan privacy group came out just a few months ago and said that they have never found anything useful that's come out of it.

    If you look back, the NSA actually had another program. It was the identical program, except for it was for e-mail. Everybody who sent an e-mail would be — who you sent it to and where it came from and so forth would be — a record would be kept on it. They got rid of that because it was useless. And I think they should do the same thing with this program.


    Michael Mukasey, why isn't it — given what James Bamford is spelling out, that there are real questions, as he was suggesting, about what's — any value to this program, why continue it?


    Well, it is not at all useless.

    In point of fact, it has been — it is used to assemble intelligence. It is not a crime-solving tool principally, although it has solved crimes, including exposing the Zazi plot to blow up the New York City subways.

    But if you're asking the question of how many plots it's stopped, then you're asking the wrong question. You should be asking, what's the value of the bits of intelligence that are gathered and used with other bits of intelligence that are available to build a picture of what it is that we're looking for and of various circles of plotters and networks of plotters?

    As far as courts having found it unlawful, the fact is that the FISA court has considered this more than 40 times and has found it lawful each time. The fact is that there are district judges that have found it lawful. There's one court of appeals that acted, but there are two other courts of appeals that have the issue before them that haven't spoken.


    Well, let me — and let me put that to you, James Bamford.

    If — given what the courts have said, given the question he just raised about the ability this gives the government, whether it's the metadata or the metadata with the court permission, it's something that is needed to fight terrorism.


    Everybody that's looked at this has said that it's virtually useless.

    The NSA originally came up and said there was something like originally 44 different areas that we were able to stop terrorists. It came down to one incident that ended up being useful. And what that was, was finding some taxi driver in San Diego that sent $8,000 to some group in Somalia. That was the only thing they have been able to show since 2001 that this program has produced in terms of intelligence.

    So, no, it isn't. And then the second issue is the problem of trust from the American public. We have had the warrantless eavesdropping program that was illegal, a violation of the Foreign Intelligence Surveillance Act. The only way we found out about it was through whistle-blowers.

    The same thing with this program here. It was only Edward Snowden that we ended up knowing about this. So, I think there's a lot of legitimacy to people being very skeptical about the government's claiming that this is so valuable.


    Michael Mukasey, what about that, the question of trust?


    Well, the question of trust, there are 33 people who have access to this. They have access to it only under the observation of what you might call a Madisonian trifecta, a court, their own — the executive supervision that they have, and the oversight of at least two committees of Congress. That's all three branches of government.

    The information itself, again, consists only of numbers. It doesn't consist of any other identifying information. And there's nothing that can be done, unless and until a number — a suspect number triggers the use of it.


    So, well, let me just give you the final word, James Bamford, on this. And, again, we should point out the president has backed off from on the original provision, which was collecting all metadata on all phone records.


    Yes, I mean, the USA Freedom Act, I think, is a vast improvement.

    The question is whether it's a vast improvement enough. And I think that's the issue that is being debated right now. And I think the question is whether it's either that or nothing. And I think that's what's going to be decided on Sunday.


    James Bamford, Michael Mukasey, we thank you both.

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