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Decrypting John Boehner on the Capitol Bomb Plotter

An Ohio man was recently charged with plotting to blow up the U.S. Captiol, and House Speaker John Boehner appears to be claiming that the NSA’s controversial bulk telephony records program played some kind of crucial role in identifying him.  I say “appears” because Boehner’s public statement is rather vague:

The first thing that strikes me is that we would’ve never known about this had it not been for the FISA program and our ability to collect information for people who pose an imminent threat. I’m going to say this one more time because you’re going to hear about it for months and months to come as we attempt to reauthorize the FISA program. Our government does not spy on Americans — unless they are Americans who are doing things that frankly tip off our law enforcement officials to an imminent threat. It was our law enforcement officials and those programs that helped us stop this person before he committed a heinous crime in our nation’s capital.

There are many, many programs authorized by the Foreign Intelligence Surveillance Act, of course, but Boehner’s reference to the looming deadline to reauthorize three sunsetting Patriot Act provisions, the most well-known and controversial of which is §215,  at least suggests that “the FISA program” he’s referring to is the phone records collection program based on that authority.

As The Guardian‘s Spencer Ackerman notes, however, this seems conspicuously at odds with the FBI’s own account of how alleged plotter Christopher Cornell was identified.  According to the criminal complaint, it was an informant hoping to reduce his own criminal sentence who brought Cornell to the Bureau’s attention.  Nor, indeed, was Cornell particularly subtle: Under the Twitter handle ISBlackFlags, he pseudonymously voiced support for the Islamic State and violent jihad.   If that’s true, then while it would hardly be surprising if Cornell’s phone records were reviewed at some point in the investigation, it’s hard to see how a bulk telephone database could have been essential to identifying him. Once Cornell had been identified, of course, traditional targeted intelligence or law enforcement authorities would have been sufficient to allow investigators access to his metadata—or, for that matter, his online communications.

If, as I suspect, Boehner’s claim ultimately collapses under scrutiny, it would fit a pattern we’ve observed time and again with respect to controversial intelligence programs, and the §215 program in particular: Dramatic claims are made to the effect that warrantless wiretapping or fusion centers have proven essential tools in the war on terror, saving lives and foiling terror plots—only to be debunked, sometimes years later, and typically with far less fanfare. When the NSA’s bulk collection of telephony metadata was first disclosed by The Guardian, intelligence officials and their nominal overseers in Congress were quick to respond with evidence of the program’s utility: Along with collection under §702 of  the FISA Amendments Act, Americans were told that the telephony program had helped to thwart “dozens” of terror plots.  Some members of Congress, fortunately, were not so credulous, and eventually forced officials to concede that, in fact, while the telephony database had been queried in about a dozen of those cases, in only one—involving monetary contributions to the Somalian group Al Shabaab—had it even arguably provided essential evidence.  A thorough report by the Privacy and Civil Liberties Board subsequently examined the program’s supposed success stories, and confirmed that in every other case, telephone numbers “tipped” to the FBI from the NSA database merely duplicated information the Bureau had already obtained using ordinary targeted authorities.  Even in the case of the Al Shabaab donor, PCLOB concluded that there was “no indication that speed or Section 215’s five-year depth of records were important to the discovery.”

Presumably we’ll get a clearer sense of precisely what Boehner meant as more information emerges, but there is every reason to be extremely skeptical of the implication that the §215 database, or indeed, any novel FISA authorities, played an essential role in the investigation of Cornell. As on previous occasions, alas, it seems likely that any conclusive debunking of this dubious claim will garner far fewer headlines than Boehner’s initial assertion—yet again leaving Americans with the false impression that this ineffective program is vital to national security.

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About the Author

is a senior fellow at the Cato Institute and contributing editor for Reason magazine. Follow him on Twitter (@normative).