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

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?"