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What happens now that the NSA isn’t logging your calls

For the first time in nearly 14 years, the National Security Agency is no longer allowed to log every time an American picks up the telephone to call someone. Overnight, three key provisions of the Patriot Act were allowed by the Senate to expire, despite exhortations by the White House. Gwen Ifill talks to Charlie Savage of The New York Times about what happens now.

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  • GWEN IFILL:

    After a weekend of intraparty wrangling, the Senate allowed three key provisions of the post-9/11 Patriot Act to expire at midnight.

    The three National Security Agency programs targeted by Kentucky Republican Rand Paul permitted the NSA’s sweeping bulk collection of phone data, allowed the agency to use roving wiretaps to track terror suspects, and created a so-called lone wolf program to track suspects outside terror networks.

    To examine what happens now, we turn to Charlie Savage, who covers national security for The New York Times.

    So, Charlie, tell us as succinctly as you can what this lapse that we saw dramatically happen last night, what does it actually mean?

  • CHARLIE SAVAGE, The New York Times:

    Well, it means that right now, for the first time in nearly 14 years, when Americans pick up the phone and call somebody, call their friend, their lover, a businessman, a bank, a pizza place, the NSA is not taking a log of that contact and adding it to its government database to be stored and analyzed for the next five years.

    And it means that when terrorism investigators find a newly suspicious number, they can’t just check their own database to see if anyone on U.S. soil has been in contact with that number. They have to use a subpoena to go to the phone company and see if they have seen a trace of that number before and kind of wait for that response.

  • GWEN IFILL:

    So, the subpoena is the backup plan, but it takes a lot longer for this to happen, presumably?

  • CHARLIE SAVAGE:

    Well, it takes somewhat longer. Under the bulk phone program, they still had to go to the spy court for the last couple years and get the court’s permission to check the database. So, in that sense, it wasn’t an instantaneous thing either.

  • GWEN IFILL:

    The White House said — took occasion every day last week to say this was a bad idea to let it lapse. And the attorney general actually said it would be a serious lapse. There was a distinct impression left from the administration that this would make America a more dangerous place.

    What evidence do we have to support that?

  • CHARLIE SAVAGE:

    Right.

    So, what we were hearing out of the administration was primarily focused on the expiration of these three laws you mentioned in their ordinary sense, not this bulk phone program, which purportedly is based on sort of a creative interpretation of one of those laws, in which a federal appeals court has already said is actually not legitimately based on that law, is part of the sort of mess of this situation.

    The administration has been focused on the expiration of what they call the noncontroversial uses of these three laws. And you’re right. They have been raising a lot ot of sort of scary rhetoric about how we’re not going to be able to track terrorists and this is really irresponsible and so forth on the part of Congress.

    That’s been political language for a political purpose, which is to pressure opponents of the bill in Congress to back down. Operationally, if you talk to people inside of the government who are actually charged with carrying out these investigations, it’s probably somewhat overstated, because there’s a variety of tools they can use to fill this gap.

    For one thing, all three of these laws had a so-called grandfather provision that says they don’t expire, they last forever if it’s for an investigation that had already begun before June 1. And among other things, the FBI has an open-ended investigation into all things al-Qaida.

    And so, really, they could keep using these laws as long as they want for that kind of a counterterrorism investigation. And they can always use ordinary criminal tools as well, like grand jury subpoenas, that more or less do the same thing, but come with sort of slightly different rules and restrictions.

  • GWEN IFILL:

    What evidence do we have in the 14 years of this law and these provisions’ existence that they have successfully thwarted any particular attacks or successfully brought about investigations that led to that?

  • CHARLIE SAVAGE:

    Right.

    So, now you’re focused on the bulk phone records program.

  • GWEN IFILL:

    Right.

  • CHARLIE SAVAGE:

    That program began in October 2001 secretly as part of the Bush administration’s broader post-9/11 spying and bulk data collection programs later — which we later learned was called the Stellar Wind program.

    And starting in 2006, this one component of it, which sucks in records of all Americans’ phone calls, was brought under the Patriot Act. But for the first five years of its existence, it just sort of sat there as an assertion of raw presidential power. But it’s been around for 14 years.

    Once it was fully revealed in leaks by Ed Snowden two years ago, it was studied by several independent government panels that had access to classified information. They looked at the reports. They looked at what the government considered the success stories. And they concluded it had never thwarted a terrorist attack.

    It had been a useful tool. Investigators said it helped them flesh out investigations. If they saw that no one had been in contact with a suspicious number, that provided peace of mind. But really the most concrete accomplishment it ever had was, it led the FBI to scrutinize a San Diego man who turned out to have donated several thousand dollars to a terrorist group in Somalia.

    And there was no accusation that that man had been plotting a terrorist attack. So, it’s really — the apocalyptic rhetoric that this means we will be attacked doesn’t seem to be bolstered, at least by the observed experience of how this program has functioned for the first 14 years of its existence.

  • GWEN IFILL:

    The alternative is now something called the USA Freedom Act. How is that different from what we just saw?

  • CHARLIE SAVAGE:

    The USA Freedom Act would extend these three laws which expired Sunday and Monday night and so they would continue on for their ordinary usage.

    And then, six months after the bill became law, it would ban bulk collection of phone records and it would create a new kind of instrument, kind of a subpoena or a court order, that would allow the government to quickly query phone records that are held at the phone companies and analyze links across phone records that are held, one by AT&T, one by Verizon, and allow them quickly to correlate those and do the same kind of link analysis or chaining between contacts among people that they can do with this current program, where they hold the records themselves.

    So it would transition from this program to a different one in which the government more or less can do the same thing, but the bulk records would not be held in government hands.

  • GWEN IFILL:

    OK.

    Well, we will be watching to see that shoe drop. It returns to debate on the Senate floor tomorrow.

    Charlie Savage of The New York Times, thank you.

  • CHARLIE SAVAGE:

    Thank you.

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