Commentary Magazine


Topic: Patriot Act

The Self-Contradictory ‘Stand’ Against the PATRIOT Act

“Had the program been in place more than a decade ago, it would likely have prevented 9/11. And it has the potential to prevent the next 9/11.” Read More

“Had the program been in place more than a decade ago, it would likely have prevented 9/11. And it has the potential to prevent the next 9/11.”

So wrote Mike Morrell, the CIA’s former acting director, about section 215 of the Patriot Act, which authorizes the National Security Agency to search telephone “metadata” (i.e., connections between telephone numbers not the content of calls) to ferret out terrorists. Now section 215 is no more. After a delay of two days, in which the Senate let the PATRIOT Act lapse altogether, Senators finally swallowed their Castrol oil and approved a new and more restricted version of the telephone metadata program.

No longer will the NSA be able to keep records of phone calls in its own databases where they can be swiftly searched. Now the NSA will need to apply for a court order to search records which are kept by the phone companies — although how long the companies are supposed to keep the records or in what form remains unclear.

This is not the end of the world. It is, in fact, more or less the result advocated by Morrell and a panel of other experts appointed by President Obama to study the issue after the Edward Snowden revelations. (Although Morrell wrote that “personally” he would like to expand “the Section 215 program to include all telephone metadata (the program covers only a subset of the total calls made) as well as e-mail metadata (which is not in the program),” but he was not allowed to make that suggestion because it did not “fall under the same constraints recommended by the review group.”

But it is also a classic Washington solution in search of a problem.

What exactly was the problem with the current metadata program which has been part of the homeland security architecture keeping us largely safe since 9/11? Nothing beyond the unfounded hype generated by the likes of Ed Snowden and Rand Paul, who wrongly suggested that this allowed Big Brother to snoop on our phone calls. There is no evidence that this power was ever abused. There were only 150 such searches last by the NSA, and all of them were related to real national security concerns.

In fact, the NSA has been more responsible and restrained in its use of this technology than all of the big companies — from United Airlines, to Apple computers, to Hilton hotels, to Amazon—which routinely utilize far more intrusive programs to track the shopping preferences of their actual and potential customers. But apparently, for some reason, the Washington Randstanders are ok with commercial firms snooping on us to sell us stuff we don’t really need, but they’re not ok with the NSA snooping on us to protect us from terrorists.

So now we will have a drastic change in the program that may or may not impair its effectiveness. We don’t know yet what the impact of these changes will be, which is all the more reason we shouldn’t be making them when the threat from terrorism is as great as it is today. Ironically, on the very day when the Senate was passing a watered-down version of the PATRIOT Act, a terrorist suspect was fatally shot by police officers in Boston after resisting arrest.

But it was probably inevitable that some such change would be made by Congress after the Snowden revelations, and it’s just as well that the curtailment of the NSA was not more severe. The only way this could have been avoided altogether is if President Obama had made a full-throated defense of the NSA and laid it on the line for lawmakers, telling them that if they voted to rescind existing authorities they would be making it easier for terrorists to attack us. He didn’t do that.

As Senator John McCain noted, on this, as on most other national security issues, Obama has been largely AWOL. He clearly does not see himself in the role of a wartime commander-in-chief whose job is to rally the public to support our war efforts in Afghanistan, Iraq, and at home. Rather, he clearly sees these threats as a distraction from “nation building at  home,” which is what he is really interested in. And he sees his role as being a sagacious professor helping his “students” — that would be us — to reason toward an acceptable compromise. That’s a long way from the kind of steely leadership displayed by the likes of Lincoln, FDR, and Truman. Given that reality, this watered-down version of the PATRIOT Act is about the best we could hope for until we get a president who more fully embraces his (or her) commander-in-chief responsibilities.

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Rand Paul Drops the Pretense

It is highly likely that as a result of Senator Rand Paul’s maneuvers, barring a last minute reversal, the Patriot Act will expire Sunday night. This is something of a triumph for the Kentucky senator even if it is likely to be a short-lived one. Even under the rules of the Senate which allow individual senators vast leeway to gum up the works if they so choose, it’s likely that a frustrated Majority Leader Mitch McConnell will be able to force an end to this exhibition by Wednesday and that the House version of a renewal called the USA Freedom Act, will eventually be adopted by the Senate. It is to be hoped that the 72-hour interval won’t harm national security. But the main political conclusion to be drawn from this affair is that Paul’s long and arduous effort to attain the status of a mainstream Republican leader and presidential contender is now officially over.

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It is highly likely that as a result of Senator Rand Paul’s maneuvers, barring a last minute reversal, the Patriot Act will expire Sunday night. This is something of a triumph for the Kentucky senator even if it is likely to be a short-lived one. Even under the rules of the Senate which allow individual senators vast leeway to gum up the works if they so choose, it’s likely that a frustrated Majority Leader Mitch McConnell will be able to force an end to this exhibition by Wednesday and that the House version of a renewal called the USA Freedom Act, will eventually be adopted by the Senate. It is to be hoped that the 72-hour interval won’t harm national security. But the main political conclusion to be drawn from this affair is that Paul’s long and arduous effort to attain the status of a mainstream Republican leader and presidential contender is now officially over.

As I noted last week, Paul’s recent filibuster of the Patriot Act renewal didn’t have the same impact of the same stunt when he executed it in early 2013. That filibuster captured the imagination of the country not just because it was well done. It worked because his concerns about the Obama administration’s use of drone attacks seemed to capture both the cynicism that many Americans felt about the government but also because it came at a time when the threat from Islamist terrorism seemed to have receded. But in the wake of the rise of ISIS as a result of President Obama’s negligence and shortsighted Middle East policies, that stance no longer resonates with as many people, especially Republican primary voters.

But rather than let a bipartisan majority of Congress work their will and allow U.S. intelligence to continue their necessary work of monitoring possible terrorist threats, Paul has doubled down on his obstructionism. The result is that, at least for a few days, he will have won and stripped the government of its ability to conduct bulk data collection. Paul and his fellow libertarian cynics about efforts to combat terrorism will assert that no harm will be done to the country, a proposition that cannot be proved or disproved without access to the sort of intelligence that is unlikely to be in the public domain or even possessed by members of the Senate. Yet, even if the country is so fortunate that nothing important will slip by its spooks during a possible 72 hour blackout, the point here is that Paul’s crusade has finally exploded the notion that he is a mere foreign policy “realist” rather than a housebroken version of his father’s old extremist libertarian faction.

McConnell was resisting the House version until this week because he rightly considered its attempt to limit the government’s ability to monitor terrorist contacts to be both unnecessary and potentially dangerous. But since neither Paul nor some left-wing Democrats who share his views would play ball, the Majority Leader was forced to embrace the House bill as the only way to effectively renew the Patriot Act before it expired. This retreat availed him little since Paul was not satisfied with having his say and getting a vote, but actually chose to let the law expire, albeit for only a few days.

Suffice it to say that if Senator Paul were the mainstream Republican, he has been trying to pose as for the last two years as he prepared his presidential run, he wouldn’t have done this. It is one thing to grandstand about these issues, even on the ludicrous premise that the government was thinking about sending drones to kill American citizens peacefully sipping coffee in Starbucks, as he did in his 2013 filibuster. It is quite another to use your power as a senator to actually halt U.S. intelligence efforts merely in order to feed the paranoia of a segment of the public.

It bears repeating that the metadata collection that he is so riled up about was both constitutional and a necessary tool for American intelligence forces as they work to continue to try and forestall attacks on the homeland as well as terrorism abroad. The National Security Agency isn’t reading your emails or listening to your phone conversations. But it will seek to do so if you are in contact with a known terrorist. The House version of the bill forces the government to go to a court before it can use any of the data it seeks. That’s an extra precaution that ought to satisfy the Patriot Act’s critics, who nevertheless cannot point to a single instance in which the government has misused the information it gleans from the procedure.

Paul’s stance puts him to the left of President Obama on this issue. That’s nothing new since his foreign policy views are, as a general rule of thumb, far closer to that of the Bernie Sanders wing of the Democratic Party than those of most of his fellow Republicans. But while his calls for a weaker defense and a retreat from a position of strength abroad can sometimes be couched in terms that allow him to pose as a follower of the first President Bush, his recent antics give the lie to this effort.

Paul will likely continue to be a disruptive force in both his party and the presidential contest, especially in a field as big as the one Republicans will have in 2016. But by claiming, as our Noah Rothman noted this past week, that it was his fellow Republicans, rather than President Obama, who should be held responsible for the rise of ISIS and then his effort to torpedo intelligence collection Paul has finally dropped any pretense that he is attempt to gain the votes of mainstream conservatives.

He has, instead, reverted to being merely a slicker and more ambitious versions of his cranky extremist father. Unlike Rep. Ron Paul, Rand seemed to harbor genuine hopes of expanding beyond his small yet vocal band of libertarian backers. It was fun while it lasted, but that is over. So should be any notion that he is anything more than a factional leader who has no chance of being nominated, let alone elected president.

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The Price of Liberty

I recall the events of 9/11 as an earlier generation recalled the death of President Kennedy. The difference being that this was not a tragedy I saw on television. Having worked downtown at the time, I was on my way to my office when the two hijacked aircraft hit the Twin Towers and I arrived in time to see one of the towers fall. The grey clouds of ash still float across my memory, interspersed with mental snapshots of people falling to their deaths.

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I recall the events of 9/11 as an earlier generation recalled the death of President Kennedy. The difference being that this was not a tragedy I saw on television. Having worked downtown at the time, I was on my way to my office when the two hijacked aircraft hit the Twin Towers and I arrived in time to see one of the towers fall. The grey clouds of ash still float across my memory, interspersed with mental snapshots of people falling to their deaths.

I could never imagine, at the time, that there would be a 9/11 museum. Not only because the events of that day seemed too horrific and surreal to fully digest, much less to recall with the luxury of time and distance, but also because I never expected that those events would be as unique as they have remained. Seeing America under attack on 9/11, I had little doubt that we would witness attacks of equal if not greater magnitude in the years ahead. For weeks afterward I half cringed every time I walked through a crowded public place in Manhattan, knowing that so many people clustered together could be an irresistible target for a suicide bomber.

Mercifully, my worst fears have not come true. To be sure, there have been terrorist attacks on American soil since 9/11–attacks such as those on the Boston marathon and at Fort Hood. There have been even more foiled plots such as the one at the Mohammad cartoon contest in Garland, Texas. But neither Al Qaeda nor any other group has succeeded in pulling off an attack of 9/11-scale.

I thought about that as I walked Sunday through the 9/11 Museum in downtown New York across the street from where I used to work. It was a haunting and moving experience–especially seeing the pictures of all the victims and hearing the recordings of passengers on the doomed airplanes calling their loved ones, telling them not to worry, something has gone slightly wrong but everything will be ok. It was nearly unbearable.

It caused me to reflect that we were monumentally unlucky on 9/11 and we have been monumentally lucky ever since.

But that doesn’t mean we can or should expect our luck to continue indefinitely, especially not if we dismantle the defenses that have kept us safe. That seems to be what a left-right coalition of House and Senate members is trying to achieve by making it harder for the National Security Agency to search telephone records for links between terrorists. The Patriot Act, the cornerstone of homeland security since 9/11, is due to expire on May 31 and these lawmakers are holding its renewal hostage until they get what they want–which is weaken our defenses against terrorism.

Their rationale is that the current system, as exposed by Edward Snowden, trespasses on our liberties even though there is no evidence of the NSA abusing its authority in any way. Contrary to what the fear-mongers would have you believe, the metadata collection does not allow government gumshoes to listen in to your calls to your Aunt Sally; that still requires a court order.

I couldn’t help wishing, as I toured the 9/11 Museum and ground zero, that all of the lawmakers who are blocking passage of the Patriot Act should be required to take the same tour–to remember what it was really like on 9/11 and how easily the deadliest attack ever on American soil could have been prevented if there had been better intelligence collection and law enforcement work beforehand. The post-9/11 reforms have corrected many of the problems that used to exist, but we have become so complacent in the years since that it is all too easy to forget the kind of threat that we faced then–and still face.

The core of Al Qaeda may have been greatly weakened by American actions in Pakistan and Afghanistan but the jihadist threat has since metastasized and in many ways it’s gotten worse than it was on 9/11. Osama bin Laden may be resting in his watery grave but groups from ISIS to Al Qaeda on the Arabian Peninsula have proven themselves to be every bit as fanatical, if not more so, and in many ways they are also proving even more successful and resourceful.

On 9/11 Sunni jihadists controlled most of Afghanistan. They no longer control Afghanistan but they do control a vast caliphate encompassing half of Syria and a third of Iraq. They also control substantial areas of Pakistan and Yemen. Meanwhile their opposite numbers among Shiite jihadists are taking control of much of the rest of Syria, Iraq, and Yemen.

Now is no time to let down our guard. Rather it is time to remember the horrors of 9/11 and to vow that we shall do whatever it takes to avoid another such calamity. And if that means a slight and inconsequential infringement on civil liberties, so be it.

The next time we won’t have the luxury of saying we could not anticipate what was to come. If you want to experience the shadow that looms over our future as well as our past, all you have to do is visit the 9/11 Museum.

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Rand’s Sad Tale of Two Filibusters

It’s hard to recapture the magic the second time around. As Senator Rand Paul is realizing this week, that’s cliché applies as much to politics as it does for romance. As James Kirchick explains in a major piece for the magazine called “The Dangerous Unseriousness of Rand Paul,” a 2013 filibuster about drone policy transformed the Kentucky libertarian from cranky extremist Ron Paul’s son to a serious contender for the 2016 Republican presidential nomination. But with his candidacy failing to get much of a boost from his formal announcement and finding himself stuck in the middle of the pack in the large GOP field, Paul tried the filibuster trick again. It was, just like the first one, an impressive performance. But it’s unlikely to have the same effect. In 2013, even Republicans like Marco Rubio who basically disagreed with him on the policy question felt compelled to offer him some support. This time his biggest cheerleader was the editorial page of the New York Times. That not only demonstrated Paul’s basic affinity with the left on foreign policy but also showed that his moment had passed. Where his first filibuster showed he had transcended his father’s base, this one illustrated the fact that he has been forced to fall back on it in order to revive his flagging candidacy.

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It’s hard to recapture the magic the second time around. As Senator Rand Paul is realizing this week, that’s cliché applies as much to politics as it does for romance. As James Kirchick explains in a major piece for the magazine called “The Dangerous Unseriousness of Rand Paul,” a 2013 filibuster about drone policy transformed the Kentucky libertarian from cranky extremist Ron Paul’s son to a serious contender for the 2016 Republican presidential nomination. But with his candidacy failing to get much of a boost from his formal announcement and finding himself stuck in the middle of the pack in the large GOP field, Paul tried the filibuster trick again. It was, just like the first one, an impressive performance. But it’s unlikely to have the same effect. In 2013, even Republicans like Marco Rubio who basically disagreed with him on the policy question felt compelled to offer him some support. This time his biggest cheerleader was the editorial page of the New York Times. That not only demonstrated Paul’s basic affinity with the left on foreign policy but also showed that his moment had passed. Where his first filibuster showed he had transcended his father’s base, this one illustrated the fact that he has been forced to fall back on it in order to revive his flagging candidacy.

Let’s give due credit to Paul for a bravura performance on the floor of the Senate as he sought to rally opposition to renewal of the Patriot Act. Just as he was in his first filibuster, he was articulate, passionate and principled. So why can’t it rally conservatives to his side the same way they did before?

The first and most obvious reason is that this is a different moment in time. In 2013, even many on the right though President Obama was right when he spoke of al-Qaeda and Islamist terror as having been licked. Today, Americans know that not only are the Islamists as dangerous as ever, but ISIS now controls much of Iraq and Syria and is expanding elsewhere. The idea that the terror threat is overstated or doesn’t require the country to empower its security apparatus some leeway for spying doesn’t have the same appeal today as it did two years ago.

It is true that many on the right are cynical about government, and it’s hard to disagree with Paul when he says that if you give it power, abuse is sure to follow. That’s an argument that is easy to make with a president who is prepared to act outside the law on so many issues as Barack Obama has done. But if you’re seeking the nomination of a party whose core foreign policy beliefs are rooted in intense Ronald Reagan-style patriotism and belief in a strong defense, ranting against the National Security Agency isn’t necessarily the formula for success. That is especially true at a time when the terrorists they are tasked with fighting are burning and beheading people and taking over countries.

This is not just because his attacks on the NSA and the Patriot Act are wrongheaded. The NSA has not acted improperly nor is the Act unconstitutional. But it goes deeper than that.

Rand’s problem is that the libertarian surge of 2013 has ebbed. That’s not because conservatives no longer care about personal liberty or think the government can always be trusted. But it hasn’t been lost on most Republicans that his stands on foreign policy are much closer to those of Bernie Sanders and the left wing of the Democratic Party than they are to those of the rest of his party. Like the left, his basic instincts are to suspect American power rather than to think of it as a force for good. Like the left, he believes the U.S. should shy away from confronting forces of evil rather than standing up to them.

Yet the most discouraging thing about the filibuster for Paul’s supporters is that it showed that he has failed to meet the basic assumption that most of us had about him two years ago. Back then, even those of us who were critical about him assumed that he was about to break through to mainstream support and expand beyond the libertarian base he inherited from his father. But as the polls show, it hasn’t happened. Indeed, given the stiff competition for Tea Party and even libertarian-oriented voters, he can’t even count on doing as well as Ron Paul did in 2012. Just as ominous for his chances is the fact that many of those Paulbots are unhappy with Rand’s attempt to shift to the center away from hardcore libertarian positions on foreign policy issues as he maneuvered for the presidential race. The filibuster was an attempt to rally that base.

That may well work, and if it does it might give him a fighting chance in a crowded field where none of the contenders can claim to have more than a fraction of the GOP electorate. But even if it does, it still leaves him far short of the support he needs to ultimately win the nomination. Rather than recapturing the magic, the filibuster confirmed it is gone. If he were really on track to be a potential nominee he would have transcended stunts like filibusters. All it proved was that Paul is still only a factional leader rather than someone with the potential to unite his party, let alone lead it to victory against the Democrats.

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Rand Paul’s Worst Case Against the PATRIOT Act: It’s Unpopular,So Gut It

On Wednesday, Sen. Rand Paul took the floor of the U.S. Senate to reprise his marathon speech in opposition to the metadata collection and warehousing programs that were exposed as part of the PATRIOT Act in 2013. Those programs were revealed in documents leaked by NSA defector and current beneficiary of Russian hospitality, Edward Snowden. While speaking in opposition to those programs, Paul made the claim that the American public is with him. But are they? The data suggests that it might not be true that the nation is standing with Rand as they were two years ago.

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On Wednesday, Sen. Rand Paul took the floor of the U.S. Senate to reprise his marathon speech in opposition to the metadata collection and warehousing programs that were exposed as part of the PATRIOT Act in 2013. Those programs were revealed in documents leaked by NSA defector and current beneficiary of Russian hospitality, Edward Snowden. While speaking in opposition to those programs, Paul made the claim that the American public is with him. But are they? The data suggests that it might not be true that the nation is standing with Rand as they were two years ago.

Paul’s arguments against these programs then, as they are now, are not entirely without merit, but a debate over on the virtue of the various information netting and retention programs contained within that post-9/11 counterterrorism bill is beyond the scope of this post. Certainly, Paul’s contention that these programs deserve public scrutiny is not unwarranted. They have been subject to precisely the scrutiny Paul recommends for nearly 24 months. Moreover, Paul would not have had the opportunity to mount a pseudo-filibuster in opposition to these programs today if a federal court had not determined that the PATRIOT Act’s information gathering programs must be approved individually and not, as Sen. Mitch McConnell had liked, as a blanket reauthorization of that sprawling counterterrorism law.

None of this is to say that Paul’s arguments against the National Security Agency’s sweeping data collection powers are baseless. He made a rather compelling argument, in fact, when he contended that the use of information obtained via NSA surveillance programs that was used during the prosecution of a criminal case (albeit against a terror suspect) exceeds the bounds of the powers granted to the government by the PATRIOT Act.

But for all of Paul’s compelling arguments, he also made more than a few unconvincing claims designed to poison the public against the NSA’s programs. Perhaps the most risible contention Paul made in opposition to the NSA’s information gathering programs is that they should be repealed because they are simply unpopular.

“I think if you look at this and you say, ‘Where are the American people on this?’” Paul asked. “Well over half the people, maybe even 60 percent of the people, think the government has gone too far.”

“But if you want an example of why the Senate or Congress doesn’t represent the people very well, or why we’re maybe a decade behind, I’ll bet you it’s 20 percent of the people here would vote to stop this. To truly just stop it,” the senator contended. “At the most.”

“Whereas it’s 60, 70 percent of the public would stop these things,” Paul continued, citing an ever-increasing majority of the public that is supposedly opposed to the NSA’s programs.

“You’re not well-represented,” he added. “I think the Congress is maybe a decade behind the people. I think it’s an argument for why we should limit terms. I think it’s an argument for why we should have more turnover in office, because we get up here and we stay too long and we get separated from the people.”

Yes, senator, lawmakers in Congress who are ostensibly privy to classified intelligence briefings are on average more protective of the NSA’s surveillance programs than the general public. That is not a mark against these programs, and certainly no argument in favor of term limits; it’s an argument in their favor.

As for Paul’s claim that somewhere between 50 and 70 percent of the public would do away with the NSA’s surveillance programs if they had the chance, it’s hard to find recent data that supports this assertion that does not result from surveys commissioned by the ACLU. A recent Pew Research Center poll paints a far more complex picture of how the public views the NSA’s programs in a world that is now characterized by a resurgent radical Islamist threat and is routinely imperiled by self-radicalized, ISIS-inspired lone wolves.

While 61 percent of those polled in a survey released in March say they are “less confident the surveillance efforts are serving the public interest,” it’s far from clear that this majority of respondents would do away with the NSA’s programs entirely. 82 percent of those polled are comfortable with the government monitoring the communications of suspected terrorists. Another 60 percent are unperturbed by the prospect of monitoring the communications of elected U.S. officials and foreign leaders. A narrow majority, 54 percent, say that they are not uncomfortable with federal officials monitoring the communications of non-U.S. citizens.

“Yet, 57% say it is unacceptable for the government to monitor the communications of U.S. citizens,” Pew’s release read. “At the same time, majorities support monitoring of those particular individuals who use words like ‘explosives’ and ‘automatic weapons’ in their search engine queries (65% say that) and those who visit anti-American websites (67% say that).”

The issue of NSA surveillance is nowhere near as black and white as it was when the Snowden leaks were initially revealed. There are some good arguments in support of Paul’s position on NSA surveillance. Those that the senator made at the open of his latest marathon floor speech on the matter are not among them.

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NSA Data Collection Is Legal–and Smart

Given the IRS and Benghazi scandals, there is a natural tendency on the part of many Americans, conservatives especially, to be outraged at news disclosed by the Guardian that the government is able to collect records on large numbers of phone calls. This is a tendency best resisted.

The news that has come out today makes clear that this is a perfectly legal, if secret, undertaking which has been authorized by the Patriot Act, briefed to Congress, and undertaken via judicial order. This does not allow the government to listen in to communications indiscriminately but, apparently, to do data mining to look for suspicious patterns.

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Given the IRS and Benghazi scandals, there is a natural tendency on the part of many Americans, conservatives especially, to be outraged at news disclosed by the Guardian that the government is able to collect records on large numbers of phone calls. This is a tendency best resisted.

The news that has come out today makes clear that this is a perfectly legal, if secret, undertaking which has been authorized by the Patriot Act, briefed to Congress, and undertaken via judicial order. This does not allow the government to listen in to communications indiscriminately but, apparently, to do data mining to look for suspicious patterns.

That is precisely what the government should be doing to keep us safe from terrorism–which, as recent attacks in Boston and London show, remains a potent threat notwithstanding the demise of Osama bin Laden. The Obama administration should be praised for continuing this Bush-era initiative rather than pilloried for Big Brother tactics. The only outrage here is that the Guardian has disclosed such a highly classified program.

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