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Terrorism & Extremism
"Overblown" and "Misleading"? The New America Foundation Report on the Role of NSA Surveillance in Preventing Attacks
Since Edward Snowden unveiled the existence of NSA's mass surveillance programs in June, various government officials have gone on the record to claim that the programs have prevented terrorist attacks and saved lives.
Published by The Lawfare Institute
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Since Edward Snowden unveiled the existence of NSA's mass surveillance programs in June, various government officials have gone on the record to claim that the programs have prevented terrorist attacks and saved lives. Today the New America Foundation (NAF) released a report that purports to offer evidence that these claims are "overblown and even misleading." Authors Peter Bergen, David Sterman, Emily Schneider, and Bailey Cahall write:
The study is built around individuals inside and outside the U.S. who have been indicted, convicted, or killed since 9/11; NAF's analysis consisted of reviewing court records, news stories and "related research" to assess the role of NSA's bulk surveillance programs in preventing the terrorist activities involved in each case.An in-depth analysis of 225 individuals recruited by al-Qaeda or a like-minded group or inspired by al-Qaeda’s ideology, and charged in the United States with an act of terrorism since 9/11, demonstrates that traditional investigative methods, such as the use of informants, tips from local communities, and targeted intelligence operations, provided the initial impetus for investigations in the majority of cases, while the contribution of NSA’s bulk surveillance programs to these cases was minimal.
Some key findings, pulled from the executive summary:
NSA surveillance of any kind, whether bulk or targeted of U.S. persons or foreigners, played an initiating role in only 7.5 percent of cases. The controversial bulk collection of telephone metadata appears to have played an identifiable role in, at most, 1.8 percent of the terrorism cases we examined. In a further 4.4 percent of the cases, NSA surveillance under Section 702 of targets reasonably believed to be outside of the country that were communicating with U.S. citizens or residents likely played a role, while NSA surveillance under an unknown authority likely played a role in 1.3 percent of the cases we examined. Regular FISA warrants not issued in connection with Section 215 or Section 702, which are the traditional means for investigating foreign persons, were used in at least 48 (21 percent) of the cases we looked at, although it’s unclear whether these warrants played an initiating role or were used at a later point in the investigation. Surveillance of American phone metadata has had no discernible impact on preventing acts of terrorism and only the most marginal of impacts on preventing terrorist- related activity, such as fundraising for a terrorist group.
The report notes that in 28 percent of the cases reviewed by NAF, "court records and public reporting do not identify which specific methods initiated the investigation." The concession highlights some of the limitations inherent in the study's methodology, which relies entirely on information in the public domain. The study briefly acknowledges these limitations but dismisses any suggestion that they are fatal:
We acknowledge that the public record may not be complete and is evolving in a number of the cases we examined. As new information becomes available, we will update our assessment of the cases as merited. Additionally, there is reason to believe the government has at times actively concealed the role of NSA programs in investigations and criminal cases. Drug Enforcement Administration (DEA) agents have been trained in some instances, for example, to conceal the role of a DEA unit that analyzed metadata to initiate cases. Though this presents a challenge to our analysis, it seems unlikely that the government would conceal major cases of the NSA bulk surveillance programs’ purported successes at a time when it has to defend the programs’ very existence.
Jane Chong is former deputy managing editor of Lawfare. She served as a law clerk on the U.S. Court of Appeals for the Third Circuit and is a graduate of Yale Law School and Duke University.
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