NSA Backers: Don’t Condemn Spying Because of Lack of Terrorist Threats Stopped

A former FISC judge and a former Justice Department official defended the NSA’s program that collects U.S. phone records.

National Journal
Jack Fitzpatrick
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Jack Fitzpatrick
Jan. 28, 2014, 12:09 p.m.

A former For­eign In­tel­li­gence Sur­veil­lance Court judge and a former deputy as­sist­ant at­tor­ney gen­er­al both ar­gued Tues­day that it was off base to judge the Na­tion­al Se­cur­ity Agency’s phone-call data-col­lec­tion pro­gram by how many spe­cif­ic ter­ror­ist threats it helped thwart.

Rather than judging the NSA pro­gram’s suc­cess based on in­di­vidu­al ter­ror­ist threats, the pub­lic needs to view bulk-data col­lec­tion as gath­er­ing the “build­ing blocks” that start in­vest­ig­a­tions in­to ter­ror­ist activ­ity, said Steven Brad­bury, who was deputy as­sist­ant at­tor­ney gen­er­al from 2004 to 2009.

“It’s the be­gin­ning of an in­vest­ig­a­tion,” Brad­bury said at a pan­el dis­cus­sion at the State of the Net con­fer­ence Tues­day. “It’s in or­der to get the build­ing blocks to find evid­ence that you put to­geth­er when later you may get a search war­rant, for ex­ample. So the ques­tion is, is it an in­put, an im­port­ant in­put in­to coun­terter­ror­ism in­vest­ig­a­tions?”

Brad­bury’s em­phas­is on re­fram­ing the de­bate over data col­lec­tion came in re­sponse to a re­port by the Pri­vacy and Civil Liber­ties Over­sight Board that the NSA’s phone-re­cords pro­gram au­thor­ized by Sec­tion 215 of the USA Pat­ri­ot Act is il­leg­al.

The re­port, pub­lished on Jan. 23, said there was “not a single in­stance in­volving a threat to the United States in which the tele­phone re­cords pro­gram made a con­crete dif­fer­ence.”

But Brad­bury said that look­ing for those con­crete res­ults misses the point. James Carr, a former Fed­er­al In­tel­li­gence Sur­veil­lance Court judge, agreed, say­ing the pro­gram provides “pre­curs­or in­form­a­tion.”

“Don’t ask the ques­tion, ‘Show us the case, the build­ing that didn’t get knocked down, the city that didn’t go up in flames,’ ” Carr said.

The board’s re­port found that the NSA phone-re­cords pro­gram has been valu­able in of­fer­ing leads on con­tacts of ter­ror­ism sus­pects. But it said many of those leads are du­plic­ated by FBI in­tel­li­gence-gath­er­ing ef­forts, and that many of the tips gleaned from the metadata sweeps simply cor­rob­or­ate the FBI’s in­form­a­tion.

The board ul­ti­mately deemed the pro­gram il­leg­al just a week after Pres­id­ent Obama em­braced some struc­tur­al re­forms to the NSA while in­sist­ing that the agency must main­tain its abil­ity to mine mil­lions of phone re­cords.

Brad­bury’s and Carr’s in­sist­ence that it is ir­rel­ev­ant to tie the phone pro­gram’s suc­cess to con­crete res­ults did not sit well with Michelle Richard­son, le­gis­lat­ive coun­sel for the ACLU.

Richard­son said that the pro­gram had to be eval­u­ated some­how. When Brad­bury and Carr cri­ti­cized the ques­tion of wheth­er spe­cif­ic ter­ror­ist threats had been stopped, Richard­son re­spon­ded, “I’m sorry, but what oth­er ques­tion could there be?”

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