Would You Believe Zero Terrorist Attacks Foiled by the NSA's Phone Record Dragnet?

When U.S. District Judge
Richard Leon
issued his preliminary injunction against the NSA’s phone
record database yesterday, part of his
analysis (which I will discuss in my column tomorrow) concerned
whether the collection of telephone metadata counts as a “search”
under the Fourth Amendment. But Leon also considered whether such a
search might be “reasonable,” even without an individualized
warrant, because of its usefulness in preventing terrorist attacks.
That part of the analysis was pretty straightforward, since the
government had presented no evidence that the database has been
useful in preventing terrorist attacks:

The Government does not cite a single instance in which
analysis of the NSA’s bulk metadata collection actually stopped an
imminent attack, or otherwise aided the Government in achieving any
objective that was time-sensitive in nature. In fact, none of the
three “recent episodes” cited by the Government that supposedly
“illustrate the role that telephony metadata analysis can play in
preventing and protecting against terrorist attack” involved any
apparent urgency….

Given the limited record before me at this point in the
litigation—most notably, the utter lack of evidence that a
terrorist attack has ever been prevented because searching the NSA
database was faster than other investigative tactics—I have serious
doubts about the efficacy of the metadata collection program as a
means of conducting time-sensitive investigations in cases
involving imminent threats of terrorism.

Leon’s conclusion on this question is striking, since you’d
think the Obama administration would be highly motivated to show
that the database has been crucial in saving lives. If the
government cannot muster a single plausible example, how can such a
massive invasion of privacy possibly be justified?

The administration has been
struggling with this problem since news reports based on leaks
from former NSA contractor Edward Snowden first revealed the
existence of the phone record database last June. At first
intelligence officials and their allies in Congress suggested that
the program had been instrumental in foiling more than 50 terrorist
plots. But those claims—which were immediately questioned
by Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.), who as
members of the Senate Intelligence Committee ought to
know—dissolved upon close examination. Last October a ProPublica
analysis
concluded “there’s no evidence that the oft-cited figure
is accurate.”

The crucial question, usually dodged by the NSA and its
defenders, is whether routinely collecting everyone’s phone
records, as opposed to seeking specific, evidence-based court
orders aimed at particular targets, has been decisive in stopping
terrorist attacks. If the government has been unable to offer any
examples in the last six months, it seems unlikely it ever
will.