When is indisputable disputable?
by digby
I don’t think the word means what Judge William Pauley thinks it means. Adam Serwer writes:
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.
Serwer goes on to describe the “dispute” surrounding these three cases in some detail and notes:
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.”
There are also some “hair on fire” Senators with access to the classified information who have been saying these programs are not as advertised.
Oh and these yahoos too:
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.
Serwer notes that the only people aside from Judge Pauley who insist that the programs have been vital in catching terrorists is the NSA itself. To say that’s “undisputed” is simply ridiculous.
Obviously the Supreme Court is going to end up deciding whether or not these programs are constitutional. But whether or not they are actually useful requires a simple ability to tell fact from fiction. I wish I had faith that we could at least agree on that in this country but history shows that facts are very often disputed even when the evidence is obvious,if its in the best interest of the government to do it.
Update: Also too, this, from Pro-publica:
In his decision, Pauley writes: “The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar’s telephone number identifier. Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States.”
As his source, the judge writes in a footnote, “See generally, The 9/11 Commission Report.” In fact, the 9/11 Commission report does not detail the NSA’s intercepts of calls between al-Mihdhar and Yemen. As the executive director of the commission told us over the summer, “We could not, because the information was so highly classified publicly detail the nature of or limits on NSA monitoring of telephone or email communications.”
To this day, some details related to the incident and the NSA’s eavesdropping have never been aired publicly. And some experts told us that even before 9/11 — and before the creation of the metadata surveillance program — the NSA did have the ability to track the origins of the phone calls, but simply failed to do so.
