When Judge William H. Pauley ruled that the National Security Agency’s metadata program was lawful on Friday, he argued that there was no significant dispute about “the effectiveness of bulk telephony metadata collection.”
Pauley–who issued his ruling from a courthouse less than two miles from where the twin towers once stood–then offered a series of examples cited by the NSA to bolster their claims that the program is effective, all of which have been “seriously disputed.”
Only four plots among the fifty-four the NSA claims to have helped foil have been made public. Pauley cited three of those four plots in arguing that the metadata program was effective, but journalists and legislators have picked already picked those examples apart. ProPublica published a piece in October by Justin Elliott and Theodoric Meyer noting that in each of the three cases Pauley mentions, there were serious doubts as to whether or not the NSA was exaggerating either the plot itself or the impact of the program.
Pauley cites the case of Najibullah Zazi, who was convicted of a plot to bomb the New York subway in 2009. An Associated Press examination concluded that the NSA had the authority to monitor the email account that led to Zazi’s capture even without the authority to gather communications records in bulk.
Pauley also cited an effort by a man named Khalid Ouazzani to attack the New York Stock Exchange. But Ouazzani was convicted of funding al Qaeda, and as ProPublica notes neither he nor anyone else was ever actually charged or convicted of a plot to bomb the NYSE.
Pauley also cites the case of David Headley, who was involved in the 2008 terrorist attack in Mumbai and was involved in a plot to attack on a Danish newspaper which had published cartoons depicting the Islamic prophet Mohammed. But according to ProPublica, it was British intelligence, not the NSA’s datagathering, that first brought Headly to U.S. authorities’ attention.
All of this information would have been available to Pauley, because the ProPublica piece disputing the NSA’s claims was cited as a footnote in the prior ruling by Judge Richard Leon that found the NSA’s data gathering program unconstitutional. Pauley refers to Leon’s ruling multiple times in his own, indicating that he read it.
In fact, Pauley’s affirmation of the NSA’s effectiveness could be read as an implicit criticism of Leon. Where Leon had written that he had “serious doubts about the efficacy of the metadata collection program,” Pauley wrote that “the effectiveness of bulk telephony metadata collection cannot be seriously disputed.”
That might also be taken as a shot at key members of Congress who have disputed it. During a Judiciary Committee hearing in October, Vermont Democratic Senator Patrick Leahy told NSA Director Keith Alexander that “There is no evidence that [bulk] phone records collection helped to thwart dozens or even several terrorist plots.” Referring to the full list of incidents supposedly foiled by the NSA’s metadata program, Leahy said that “these weren’t all plots and they weren’t all foiled.”
Leahy isn’t the only legislator to question the program’s effectiveness. Two Democratic members of the Senate intelligence committee, Ron Wyden of Oregon and Mark Udall of Colorado, said in July that the NSA has “significantly exaggerated this program’s effectiveness,” and warned that “assertions from intelligence agencies about the value and effectiveness of particular programs should not simply be accepted at face value.”
Aside from Leon and federal legislators, there’s one more entity that has disputed the usefulness of the NSA metadata program: The review board appointed by the White House itself. In their report, the board concluded that bulk collection of metadata “was not essential to preventing attacks.” After the report was released, one of the review board members, Geoffrey Stone, a University of Chicago law professor, told NBC News there was no evidence the program had thwarted any attacks.
It’s important to acknowledge that the NSA itself claims the program is vital to keeping the country safe from terrorism. Nevertheless, the claim that the program’s effectiveness “cannot be seriously disputed” is false on its face. One of the few things about the NSA program that cannot be seriously disputed is that its effectiveness is seriously disputed.
Adam Serwer