In the wake of the San Bernardino Islamist attack, U.S. Sen. Marco Rubio (R-Fla.) has been almost everywhere talking about the need to restore the National Security Agency's domestic surveillance program.
Friday, he appeared on FOX News Channel's On the Record with Greta Van Susteren and repeated his plea for Congress to act. He called the vote to end the NSA's metadata program a "terrible decision."
"[W]e are now relying on private companies to hold data. But there is no requirement to keep it for any period of time," he said. "So some of these companies may barely keep records. You have got to fight through their general counsel to gain access to them and it doesn't allow us to paint a full picture of what these people are doing and who they might be coordinating with."
Rubio then went on to say the government needs to begin addressing digital encryption. He said that issue will not have an "easy answer."
"As a matter of course for most Americans depending on the device you use, as a way of protecting your identity and your private information," he said. "But we also know that terrorists are using encryption in a way that even now in the aftermath of San Bernardino, the law enforcement agencies in charge of the investigation are having trouble painting a full picture because a lot of the things that these terrorists use were encrypted."
The Republican presidential candidate has used the intersection of cybersecurity and national security to confront two of his competitors for the GOP nomination who were heavily involved in shutting down the NSA's metadata program: U.S. Sens. Ted Cruz (R-Texas) and Rand Paul (R-Ky.). With Cruz now moving up in the polls, he took to NBC's Sunday morning program Meet the Press to continue the critique.
Host Chuck Todd pointed out that U.S. Sen. Mike Lee (R-Utah), with whom Rubio worked on his signature tax plan, has said the criticism of the USA Freedom Act is "not based in fact." Rubio said Lee and anyone else who makes that argument are wrong.
He said the NSA metadata program allowed the government to collect phone records, effectively just the information contained within a phone bill, not the content of conversations or emails. Only 16 people could look at the information, and only with permission from a Foreign Intelligence Surveillance Act (FISA) court.
The key part, he said, was that the government held onto the information for a "significant period of time." Under the USA Freedom Act, the phone companies hold those records, but they each have different time frames for which they will hold that information.
"Some will hold it for 18 months, some will hold it for six months," Rubio said. "This is a valuable tool. If in fact you have identified someone as a potential terrorist or in fact someone who carries out a terrorist activity, the ability to look at who they've been calling and who they have been talking to is part of a larger puzzle that you can put together to see what network they've been working with, who they've been communicating with. We have now lost that capacity in many cases."
Todd asked Rubio if this was a "Commander-in-Chief test" for Cruz. Rubio said it's a litmus test for all of the presidential candidates, but said in the case of Cruz, his voting record beyond national intelligence was suspect.
"He talks tough on some of these issues, for example he's going to carpet bomb ISIS. But the only budget he's ever voted for in his time in the Senate is a budget that cut defense spending by more than Barack Obama proposes we cut it," he said. "He voted against the Defense Authorization Act every year it came up. And that is the bill, and I assume if he voted against it he would veto it as president. That's the bill that funds our troops and even the iron dome for Israel. So my point is each time he's had to choose between strong national defense and some of the isolationist tendencies in American politics he seems to side with the isolationists. This is an important issue to have a debate over. It's not personal."
Rubio is in Nevada, rallying with voters ahead of Tuesday night's presidential debate. Following the debate, he will visit Iowa and New Hampshire before attending a fundraising event in New York City. He will split time between Iowa and Ohio Thursday and Friday.
He will be back in South Carolina on Saturday.
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