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
Add to Briefcase
See more stories about...
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?”

What We're Following See More »
Republican Polling Shows Close Race
Roundup: National Polling Remains Inconsistent
6 hours ago

The national polls, once again, tell very different stories: Clinton leads by just one point in the IBD, Rasmussen, and LA Times tracking polls, while she shows a commanding 12 point lead in the ABC news poll and a smaller but sizable five point lead in the CNN poll. The Republican Remington Research Group released a slew of polls showing Trump up in Ohio, Nevada, and North Carolina, a tie in Florida, and Clinton leads in Pennsylvania, Wisconsin, and Virginia. However, an independent Siena poll shows Clinton up 7 in North Carolina, while a Monmouth poll shows Trump up one in Arizona

Colin Powell to Vote for Clinton
9 hours ago
Cook Report: Dems to Pick up 5-7 Seats, Retake Senate
10 hours ago

Since the release of the Access Hollywood tape, on which Donald Trump boasted of sexually assaulting women, "Senate Republicans have seen their fortunes dip, particularly in states like Florida, North Carolina, New Hampshire, Nevada and Pennsylvania," where Hillary Clinton now leads. Jennifer Duffy writes that she now expects Democrats to gain five to seven seats—enough to regain control of the chamber.

"Of the Senate seats in the Toss Up column, Trump only leads in Indiana and Missouri where both Republicans are running a few points behind him. ... History shows that races in the Toss Up column never split down the middle; one party tends to win the lion’s share of them."

Clinton Reaching Out to GOP Senators
14 hours ago

If you need a marker for how confident Hillary Clinton is at this point of the race, here's one: CNN's Jeff Zeleny reports "she's been talking to Republican senators, old allies and new, saying that she is willing to work with them and govern."

Trump Admits He’s Behind
14 hours ago

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.