Not every member of the US government’s independent privacy board signed on to its scathing Thursday report finding that bulk collection of US phone records is illegal and ought to end.

The dissenting minority, who cautiously embraced the practice, presented a defense of mass surveillance that was far more sophisticated and intellectually honest than the one presented until recently by the National Security Agency in the wake of the Edward Snowden revelations.

Accordingly, the difficulty they had in convincing their colleagues of the merits of their narrower defenses of the program speaks to the same difficulty the NSA has had in persuading skeptical members of Congress of its value. It looks to become crucial to the unfolding fight between the agency and Capitol Hill to amend or end the bulk collection outright.

Those two dissenting members of the Privacy and Civil Liberties Oversight Board (PCLOB), Rachel Brand and Elisebeth Collins Cook, both lawyers in the George W Bush administration, did not endorse bulk metadata collection so much as they were discomfited by the scope of their colleagues’ castigation of its legality, propriety and utility.

The PCLOB majority rested much of its rejection of the mass domestic surveillance on the grounds that it found not one “single instance” in which collecting Americans’ phone data in bulk “directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack”. It was the strongest government rebuke yet of the root necessity of the 12-year-old surveillance program.

Cook and Brand made a more circumscribed case for what the bulk phone records surveillance can offer – essentially, more than nothing, but less than the visibility into active terrorism links to domestic activity that the NSA has spent months presenting to the public and years presenting to the Hill in secret.

Hypothetical value over demonstrated value

“There is no easy way to calculate the value of this program,” Brand conceded during the board’s Thursday meeting, echoing a position NSA officials have fallen back to when pressed in congressional hearings. The case she made turned on its hypothetical value, rather than its demonstrated one.

“The test cannot be whether it has already been the key factor in thwarting a previously unknown terrorist attack. Assessing the benefit of a preventive program like this one requires a longer-term view. Most of this data is never used at all. But its immediate availability if it is needed is the program’s primary benefit. Its usefulness may not be fully realized until we face another large-scale terrorist plot. But if that happens, analysts’ ability to very quickly scan records from multiple service providers at the same time to establish connections or avoid wasting precious time on futile leads could be critical in thwarting a plot.”

Cook made a similar argument, comparing the bulk collection to a “triage” mechanism in case of emergency.

“A tool such as the [bulk collection], which allows investigators to triage and focus on those who are more likely to be doing harm to or who are in the United States, or that allows investigators to dismiss potential homeland connections to ongoing terror threats or plots is valuable,” Cook contended.

“As the majority has already indicated, section 215 [the bulk phone data collection] has been used in conjunction to other authorities to supply additional leads or supply confirming or supplemental information about our adversaries, which makes it a valuable program.”

That is a case intelligence community officials have come to make belatedly and reluctantly.

In the first weeks after Snowden disclosed the phone records mass collection to the Guardian, the NSA’s leadership publicly portrayed it as a linchpin to stop future terrorist attacks inside the US.

“The intel community failed to connect the dots in 9/11. And much of what we've done since then were to give us the capabilities – and this is the business record Fisa, what's sometimes called Section 215 and the FAA 702 – two capabilities that help us connect the dots,” NSA director Keith Alexander told ABC News in June.

Alexander, rebuffing observations from two Senate intelligence committee members who said NSA was conflating the value of the two programs to protect the bulk domestic phone records collection, continued to say it had sussed out domestic connections to “a little over 10” terrorist plots.

The following month, then-deputy FBI director Sean Joyce and Alexander deputy Chris Inglis conceded to the Senate judiciary committee that there was only one terrorist plot discovered by the bulk phone records program “that comes close to a 'but for' example”.

Yet Alexander, the outgoing NSA director, has continued to publicly argue that the program is critical to preventing domestic terrorist attacks.

“Don’t drop it, because that’s our country, and if you do drop it, the chance of that a terrorist attack gets through increases,” Alexander told a Bloomberg forum in Washington on 30 October.

Over the years, in classified documents only recently revealed, the NSA has portrayed the program in even starker terms, usually when it required congressional reauthorization for the Patriot Act provisions it cited to justify the bulk collection.

A 2009 secret briefing letter for Congress about bulk phone data collection began: “Since the tragedy of 9/11, the Intelligence Community has developed an array of capabilities to detect, identify and disrupt terrorist plots against the United States and its interests.” Only very close readers would notice that it did not claim the bulk phone data collection actually disrupted any such plots within the US.

Inglis has recently backed away from the claim. In an interview with NPR on 9 January, he likened the bulk collection to an “insurance policy” for detecting domestic terrorism, rather than a proven, crucial tool. That formulation was echoed days later by Michael Morrell, the former deputy CIA director who advised Obama on surveillance reforms.

During the PCLOB’s Thursday press conference, Brand and Cook conceded that the scale of the ongoing data collection “creates at least a risk of a serious privacy intrusion”, in Brand’s words, and they hoped an alternative could be found. They feared that turning the database into private hands, as President Obama has proposed, would neither satisfy the privacy concerns nor any future counter-terrorism official’s security interest.

'It's a value judgment'

All five members of the board demurred when asked if they considered the NSA to have been dishonest about the program’s efficacy, despite the majority’s harsh rejection of its value and the minority’s circumscribed case for it.



But retired federal judge Patricia Wald, a member of the PCLOB majority, argued that the dispute boiled down to a philosophical difference.



“What you have seen is just a different philosophy rather than – at least this is my perception – somebody trying in the intelligence community to mislead people as to the value of the program,” Wald said.



“We have heard people inside the intelligence community describe it as like fire insurance: you may never use it, but you ought to have the fire insurance in the one out of a thousand chances that your house is going to go on fire, etcetera. So it is really a notion that if something bad comes on down the line in the one of every 100,000 chances that is – it’s a value judgment – worth collecting all the data that some of us think down the line has a risk to privacy. Versus some who think that the so-called One Percent Calculus is just not worth it. It’s really a balancing.”



Whether Congress accepts that contention, rather than the much-refuted case that the mass phone data collection has stopped terrorism, remains to be seen. It is now, after Obama’s surveillance speech last week, his advisors’ report and the new PCLOB report, the central question determining the future scope of surveillance policy.

Cook, nodding tacitly at the next phase of the debate, subtly called on the government to come clean.

“I would urge the government to think very seriously about how to evaluate and explain the relative value of its various counter-terrorism authorities and programs,” she said.



