By Michael B. Mukasey, Steven G. Bradbury and David B. Rivkin Jr.

A federal judge’s ruling Monday that the National Security Agency’s (NSA’s) bulk telephone metadata collection is “likely” unconstitutional is wrong on the law and the facts. It conflicts with the opinions of 15 other federal judges who have sat on the Foreign Intelligence Surveillance Court and approved the NSA’s metadata collection 35 times since 2006.

U.S. District Judge Richard Leon has stayed his order to give the U.S. Court of Appeals for the D.C. Circuit the opportunity to reach its own judgment. But in the post-Snowden, anti-NSA climate pervading Washington, there is reason for concern that this opinion will amplify the caterwaul of those seeking to dismantle vital U.S. counterterrorism capabilities.

The telephone metadata collected by the NSA consists of transactional business records revealing only which phone numbers have called which numbers, when and for how long. It includes no other subscriber information, and it doesn’t enable the government to listen to anyone’s calls. This database enables intelligence agencies to discover quickly whether any phone numbers of known foreign terrorists have been in contact with numbers in the United States, a vital input in counterterrorism investigations. It is informative even when it reveals a lack of contacts.
Read more »

The National Security Agency’s surveillance hasn’t changed. Washington has.

By Mike Pompeo and David B. Rivkin Jr.

Former National Security Agency contractor Edward Snowden’s leaks have subjected the NSA’s surveillance programs to unprecedented attack, raising the possibility that Congress will not be able to pass the 2014 Intelligence Authorization bill needed to provide congressional guidance on a host of crucial national-security issues. It would be lamentable if the entirely legal and invaluable NSA surveillance program became more of a political football than it already is.

Some proposals would hamstring the NSA’s ability to obtain, store and analyze information, while forcing disclosures of now-classified operations. Balancing the intelligence community’s need for secrecy with the public’s appetite for disclosure is always difficult in a democracy. But the NSA’s programs have from the start been tailored to balance constitutional requirements, statutory authorizations and operational needs. What’s different today is not how we collect intelligence, but the new and extreme legal and policy arguments against doing so.
Read more »