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James Clapper: Kill the Patriot Act, But Don't Blame Me If Another 9/11 Happens

The bulk collection of phone call data hasn't prevented any terrorist attacks, but the US wants to keep it anyway.
March 2, 2015, 9:14pm
​Screengrab: ​CFR

​Go ahead and let one of the most embattled provisions of the Patriot Act expire, US Director of National Intelligence James Clapper says. Just don't blame the NSA when another terrorist attack happens, he says.

​Section 215 of the Patriot Act is the bit of the law that allows the FBI and the NSA to scoop up mass telephone records from American accounts. The mass collection of "metadata," which includes the numbers your phone is calling, location information, how long your calls last, and more, was exposed by Edward Snowden's very first revelations roughly two years ago, and has since become a prime target of NSA reform bills.

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President Obama, in fact, restricted the amount and types of records that could be scooped up by intelligence agencies. The Obama administration came to the conclusion that metadata hasn't prevented even one single terrorist attack. Metadata, meanwhile, can be used to spy on you, which is why many civil liberty types, and, indeed, some in Congress, would rather it go away altogether.

"I hope everyone involved  assumes the responsibility and it not be blamed, if we have another failure, exclusively on the intelligence community"

That's actually set to happen on June 1, when Section 215 will expire. Clapper, speaking today at the Council on Foreign Relations, sounded as though he's not looking forward to the prospect.

"In the end, the Congress giveth and the Congress taketh away," he said. "If the Congress, in its wisdom, decides the candle isn't worth the flame, the juice isn't worth the squeeze, whatever metaphor you want to use, that's fine."

"The intelligence community will do all we can within the law to do what we can to protect the country. I have to say that every time we lose another tool in our toolkit, it raises the risk," he added. "If that tool is taken away from us, 215, and, some untoward incident happens which should have been thwarted had we had it, I hope everyone involved in that decision assumes the responsibility and it not be blamed, if we have another failure, exclusively on the intelligence community."

"215, to me, is much like my fire insurance policy for my home"

It doesn't take much to read through the lines there. The NSA enjoys its metadata-scooping program and doesn't want to lose it, even though the US intelligence agency has never once been able to point to a specific time in which it was useful in thwarting an attack.

Last week, for example, NSA chief Mike Rogers said that the program has "generated value," but couldn't and wouldn't go into specifics.

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"If you want to define value as, can you prove to me that without this, you wouldn't have forestalled an attack, well the criterion I would argue is, why do we maintain a fingerprints database if you couldn't prove it forestalled crime?" Rogers said. "Do I think, if we lose this, it makes our job harder? Yes. On the other hand, we respond to the legal framework that is created for us. We do not create the legal framework we use."

The difference, pointed out to Rogers by CNN national security correspondent Jim Scuitto, who was interviewing him, is that we don't collect fingerprints from every single citizen in the country.

On Friday, the White House emailed reporters a statement asking Congress to reform, but not destroy, Section 215. Obama wants telephone companies, rather than the NSA, to hold on to metadata, a move that the White House says would "preserve the essential features of the bulk telephony metadata program, while addressing legitimate concerns about the potential for abuse of this information."

Monday, Clapper reiterated that, from the NSA's perspective, it's a nice thing to have.

"215, to me, is much like my fire insurance policy for my home," he said. "The house never burns down, but I buy fire insurance, just in case."

The difference here, is that the NSA's "insurance" is intrusive information on just about every citizen in the United States, regardless of whether or not they've done anything wrong.