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10 November 2015, NYT: Judge Deals a Blow to N.S.A. Data Collection Program

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http://www.nytimes.com/2015/11/17/us/after-paris-attacks-cia-director-rekindles-debate-over-surveillance.html

NOV. 16, 2015

After Paris Attacks, C.I.A. Director Rekindles Debate Over Surveillance

By SCOTT SHANE

WASHINGTON -- A diabolical range of recent attacks claimed by the Islamic State -- a Russian airliner blown up in Egypt, a double suicide bombing in Beirut and Friday's ghastly assaults on Paris -- has rekindled a debate over the proper limits of government surveillance in an age of terrorist mayhem.

On Monday, in unusually raw language, John Brennan, the C.I.A. director, denounced what he called "hand-wringing" over intrusive government spying and said leaks about intelligence programs had made it harder to identify the "murderous sociopaths" of the Islamic State.

Mr. Brennan appeared to be speaking mainly of the disclosures since 2013 of the National Security Agency's mass surveillance of phone and Internet communications by Edward J. Snowden, which prompted sharp criticism, lawsuits and new restrictions on electronic spying in the United States and in Europe.

In the wake of the 129 deaths in Paris, Mr. Brennan and some other officials sounded eager to reopen a clamorous argument over surveillance in which critics of the spy agencies had seemed to hold an advantage in recent years.

Civil libertarians warned that at just such moments of fear, the government would reach for new, and unjustified, authorities.

"As far as I know, there's no evidence the French lacked some kind of surveillance authority that would have made a difference," said Jameel Jaffer, deputy legal director of the American Civil Liberties Union. "When we've invested new powers in the government in response to events like the Paris attacks, they have often been abused."

The debate over the proper limits on government dates to the origins of the United States, with periodic overreaching in the name of security being curtailed in the interest of liberty. This era of Al Qaeda and the Islamic State in some ways resembles battles that American and European authorities fought in the late 1800s with anarchists who carried out a wave of assassinations and bombings, provoking a huge increase in police powers, said Audrey Kurth Cronin, a historian of terrorism at George Mason University.

Since then, there were the excesses of McCarthyism exploiting fears of Communist infiltration in the 1950s, the exposure of domestic spying and C.I.A. assassination plots in the 1970s, and the battles over torture, secret detention and drone strikes since Sept. 11, 2001.

Europe has its own complicated history. In Germany, the history of Nazi and Communist repression made the public and some politicians especially receptive to Mr. Snowden's assertions that the N.S.A. was out of control. In France and Britain, the reaction to the leaks was far more muted.

On Monday, Prime Minister David Cameron of Britain suggested that he might put aggressive surveillance proposals, which critics call the Snoopers' Charter, on a fast track, while President Francois Hollande of France called for a package of tough measures, stepping up surveillance and permitting raids without warrants.

In the United States, surveillance is the core issue for the security agencies combating the Islamic State, also known as ISIS or ISIL, and for the watchdog groups that monitor those agencies. In addition to the basic question of how much government snooping should be allowed, there is the particular concern among Muslims that they are being unfairly targeted.

Representative Peter T. King, Republican of New York, who serves on the House Intelligence and Homeland Security Committees, said on "Fox News Sunday" that "we have to put political correctness aside."

"We have to have surveillance in the Muslim communities," he said. "That's where the threat is coming from."

Farhana Khera, the executive director of Muslim Advocates, a legal and civil rights group, said it made no sense to target all Muslims. "I think all Americans want to be kept safe from violence of any kind," she said. "But we know that blanket surveillance of people based on religion and race doesn't work."

Many security experts believe that the risk of a large-scale jihadist attack in the United States, especially one directed from Syria, is far less than it is in Europe. Flights into the United States and controls at the Mexican and Canadian borders make it difficult for assailants to reach American soil. And Muslims make up a smaller proportion of the United States and are seen as far better integrated and more prosperous than in France and some other European countries.

Whether because of such factors, or because of government surveillance and other measures, the toll of jihadist terrorism in the United States since the Sept. 11 attacks has been very small, fewer than three dozen killed. After Paris, "it's possible that now, everything has changed -- a phrase you heard after 9/11," said John Mueller, a political scientist at Ohio State University and co-author of "Chasing Ghosts: The Policing of Terrorism." "But I doubt it."

For some intelligence officials, however, the toll in Paris is proof that they need all the powers they have, and perhaps more. A major consequence of Mr. Snowden's disclosures was the Obama administration's decision to drop the mass collection [1] of the phone call logs of millions of Americans, so-called metadata. The N.S.A. was directed to use more selective measures in part because there was no evidence that the phone log program, part of the Patriot Act, had thwarted any terrorist plots.

Michael V. Hayden, a former director of both the N.S.A. and the C.I.A., said collecting phone logs did no harm and might, in the rare event of a major plot, have done good. The program was designed, he said, to foil a Paris-style plot -- "unknown people inside the homeland who are communicating with terrorists abroad."

"In the wake of Paris, a big stack of metadata doesn't seem to be the scariest thing in the room," Mr. Hayden said. Of Mr. Brennan's complaints about privacy worries and the damage of leaks, he said current and former intelligence officials "all feel that way."

Timothy H. Edgar, a scholar at Brown University who has worked for intelligence agencies and for the A.C.L.U., said the debate over surveillance had become too polarized. The rush to extreme measures after Sept. 11 was counterproductive, he said. But in recent years, the sweeping condemnation of all surveillance by some critics was an overreaction, too, he said.

"There are lessons to be learned," Mr. Edgar said, speaking of Paris. "But we don't know what they are yet."

Alison Smale contributed reporting from Berlin.

[1] http://www.nytimes.com/2015/11/10/us/politics/judge-deals-a-blow-to-nsa-phone-surveillance-program.html