U.S. policies are hindering efforts by intelligence agencies to prevent attacks by the Islamic State in Western countries, current and former U.S. officials say, raising concerns in the wake of the Paris attacks and the expiration of a key surveillance tool.
The National Security Agency officially ended its mass collection of metadata from U.S. phone calls on Sunday. Metadata consists of the dates, times, duration, and other information about the calls, but not their content. The program was first publicly disclosed by the former NSA contractor Edward Snowden.
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The USA Freedom Act, passed by lawmakers in June to prohibit the NSA’s metadata collection, now requires the agency to obtain a court order before it can view the phone records of terrorist suspects.
While lawmakers who supported the act cited concerns about the privacy of Americans, current and former U.S. officials say the elimination of surveillance programs could undermine security and make it more difficult to track Islamic State (also known as ISIS or ISIL) terrorists.
Michael Allen, a former staff director for the House Permanent Select Committee on Intelligence, said on Monday that the cancellation of the NSA metadata program makes U.S. intelligence agencies "less flexible and less agile." Phone companies will still retain the metadata but have to complete multiple steps to gather all the information for an NSA query, he said, slowing the intelligence collection process.
"This is very important for us to be able to get speed and time is of the essence," he told MSNBC’s Andrea Mitchell. "When we have extra hurdles added to the process, I think that disadvantages us, especially with the rise of ISIS."
He added that after the Paris attacks, the NSA was likely "dying to get [attackers’ cell phone] information to run it against whatever we had, including this phone records database that we have been talking about."
President Obama has also taken actions to weaken U.S. surveillance of terrorism suspects, critics say. Last January after the Snowden disclosures, the president signed Presidential Policy Directive 28, which declared that "all persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and that all persons have legitimate privacy interests in the handling of their personal information."
David Shedd, former director of the Defense Intelligence Agency, wrote in the Wall Street Journal on Monday that Obama’s directive "gives foreign targets of signals intelligence-gathering privacy and civil-liberties rights that largely mirror the constitutional rights of U.S. citizens." The policy also "imposes on the intelligence community layer upon layer of process-reporting requirements that slow information collection to the point of outright discouraging it," he said.
Additionally, Shedd said intelligence analysts will likely avoid collection opportunities that do not appear to meet the presidential directive’s narrow guidelines.
"In effect, American intelligence professionals are now operating with one hand tied behind their backs," he said.
Islamic State militants, including those who planned the Paris attacks, are increasingly using encrypted communications to conduct operations, a tactic that presents additional difficulties for Western intelligence agencies. John Brennan, the director of the CIA, said earlier this month that terrorist groups such as the Islamic State "have gone to school on what it is that they need to do in order to keep their activities concealed from the authorities."
"There are a lot of technological capabilities that are available right now that make it exceptionally difficult, both technically as well as legally, for intelligence and security services to have the insight they need to uncover it," he said at the Center for Strategic and International Studies.
Brennan also said the Paris attacks should be a "wake-up call" and appeared to criticize U.S. policies enacted after Snowden’s disclosures of intelligence programs.
"In the past several years because of a number of unauthorized disclosures and a lot of handwringing over the government’s role in the effort to try to uncover these terrorists, there have been some policy and legal and other actions that are taken that make our ability collectively internationally to find these terrorists much more challenging," he said.
The NSA surveillance debate has also become a flashpoint in the U.S. presidential primaries.
Sen. Marco Rubio (R., Fla.), a presidential candidate who has said that "what happened in Paris could happen in a major American city at any moment," recently denounced Sen. Ted Cruz (R., Texas), a fellow candidate for the Republican presidential nomination, for voting in favor of the USA Freedom Act.
"At least two of my colleagues in the Senate aspiring to the presidency, Senator Cruz in particular, have voted to weaken the U.S. intelligence programs just in the last month and a half," Rubio said earlier this month at a Wall Street Journal forum. "And the weakening of our intelligence gathering capabilities leaves America vulnerable."
Cruz has defended his vote to end NSA metadata collection, telling the radio show host Hugh Hewitt in July that it is "entirely possible to protect our national security and at the same time respect the Fourth Amendment rights of law-abiding citizens."