Justice Department spokesman on the Pauley ruling:
“We are pleased the court found the N.S.A.’s bulk telephony metadata collection program to be lawful.”
You would be, wouldn’t you? I think it’s high time the DOJ changes its name. Or at least be more up front about whose justice it seems most (or least) apt to serving. I find it disconcerting that after the Leon decision, Andrew Ames, another one of these DOJ spokesmen, had the fortitude to come out and say that “government lawyers were studying the decision”. “Government lawyers”? When was the last time this slithery breed even gave the pretense of upholding the “rule of law”?
The finale of 2013 presented us with two rather extraordinary decisions, opposite ends of a spectrum, really. On December 16th, Judge Richard J. Leon ruled that the NSA bulk data collection “most likely violates” the Constitution. For good measure, and a degree of truthfulness even, he threw in the words “almost Orwellian”, and that James Madison would have been “aghast” if he knew, at all, of the government’s violation of citizenly liberties. Just eleven days later, Judge William H. Pauley III ruled that the program was legal, much to the delight of our Justice Department spokesmen.
“Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment…” – Judge Richard J. Leon
Leon is a Bush appointee; Pauley, a Clinton one. Leon has developed a reputation lately as an independent judge. While this call is under dispute, Leon has been involved in a few noteworthy decisions over the years, including ordering the release of five Guantanamo detainees. Pauley, on the other hand, allowed an Israeli spy to walk away from prison, having been fined $50,000.
“The government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.” – Judge Richard J. Leon
While Leon’s decision claims that the intelligence community had failed to show that this bulk data collection had thwarted terrorist attacks, Pauley seems adamant in suggesting that if this program had existed way back in 2001, the September 11th attacks could have been prevented. Yeah, I suppose anything could be or could have been prevented. But the Clinton appointee’s given reasons are flimsy enough to say that they betray his historical ignorance but also his ability to draw questionable conclusions.
“… al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse elements connecting al-Qaeda.”
In 1998, bin Laden, Zawahiri and their assorted cronies issued their infamous fatwa, a global jihad against “Jews and Crusaders”. They declared: “The ruling to kill Americans and their allies – civilian and military – is an individual duty for every Muslim who can do it in any country in which it is possible to do it”. The Tanzanian and Kenyan embassy bombings in August illustrated their seriousness.
“All summer [of 2001] he [Cofer Black] had told anyone who would listen that his gut told him, ‘Something terrible is going to happen! There is going to be an attack of massive proportions.’”
There is a case to be made that the fractiousness of the intelligence community is what led to the failure to prevent the September 11th attacks. But it’s not a case of not “collect[ing] everything”, as Pauley seems to believe. The “increasingly fractious relations” between the different ABC organizations, particularly the CIA, NSA, and FBI, could actually be traced back to the aftermath of the embassy bombings.
Pauley specifically cites the example of Khalid al-Mihdhar, the Saudi, one of the hijackers, as a hypothetical. In 2000, al-Mihdhar had made a series of phone calls from San Diego to Yemen. Pauley, relying on testimony from Robert Mueller (no bias there, right?), concluded that metadata collection could have allowed the NSA to determine that Khalid was actually in the United States.
“Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Investigation (“FBI”) of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.”
So basically, if the NSA had the metadata, they’d have nailed him. That’s according to Pauley, anyway. Fair argument. Except the NSA, as it turns out, didn’t need the metadata or records or culled intelligence from every phone call ever made by anyone.
Three days after the embassy bombings, FBI’s counterterrorism agents caught up with Mohammed Rashid Daoud al-Owhali. They captured him at a hotel outside Nairobi, with “stitches in his forehead and bloody bandages on his hands”, and “eight brand-new hundred-dollar bills” in his pocket. The Saudi, “[w]ithout any coercion at all, other than feeding him,” gave up the phone number he had called before and after the attack: 967-1-200578, Yemen. The al-Qaeda switchboard.
“We have a plan to attack the U.S., but we’re not ready yet. We need to hit you outside the country in a few places so you won’t see what is going on inside. The big attack is coming. There’s nothing you can do to stop it.” – Mohammed Rashid Daoud al-Owhali
The NSA began tracking calls to and from this number, which proved an intelligence goldmine; bin Laden and many of his lieutenants used it as a “central communications hub for their planning”. In late 1999, the CIA, while reading the NSA transcripts of the intercepts, got wind of an upcoming January 2000 meeting in Kuala Lumpur of suspected al-Qaeda members. One of the suspects was soon identified in full: Khalid al-Mihdhar. In fact, the number that they were tracking actually belonged al-Mihdhar’s father-in-law. The meeting, which was surveyed by the CIA’s Malaysian counterparts, turned out to be an al-Qaeda summit, attended by a number of prominent suspects, including Hambali, Tawfiq bin Attash, Nawaf al-Hazmi, and Khalid al-Mihdhar.
Further, in Dubai, on his way to the meeting, US intelligence had secretly photographed al-Mihdhar’s passport. They discovered a valid multi-entry visa. New York was his ultimate destination. None of this information was shared with the FBI. Nor was the State Department asked to revoke the visa. Nor was his (or al-Hazmi’s) name put on a watch-list of people barred from entering the United States. Al-Hazmi entered the United States as early as January 15th, 2000, flying into Los Angeles. The CIA learned of this from Thai intelligence three months after the Kuala Lumpur summit. Al-Mihdhar was later discovered to have been on the exact same flight.
The NSA, therefore, knew of the Yemeni phone connection, and the CIA knew that at least two of the hijackers had been in the United States almost two years before the September 11th attacks. Up to sixty people in the Company knew that al-Qaeda operatives were in the United States. And apparently everybody knew of some impending would-be death-blow that al-Qaeda had planned for inside the United States. So what do you know, the attacks could have been prevented without an overblown metadata collection program. If only they’d communicated, cooperated, the September 11th attacks could have been prevented without the unnecessary mass data collection.
These revelations are eerily similar to the ones drawn from the Najibullah Zazi case. Pauley actually cites this case as an example of the success of mass surveillance. I would argue the opposite, in fact. That it was more a case of good intelligence and good partnerships. It is interesting to note that the NYPD intelligence unit’s attempt at mass surveillance and data collection actually yielded nothing in regards to the investigation.
After September 11th, the NYPD became hell-bent on relying on itself, rather than the conventional intelligence community, for the city’s protection. In its zeal to protect itself, it drew itself into a sort of cocoon. The irony is that its efforts to rely less on the traditional intelligence community caused it to make the same mistakes as the latter did in the years leading to the September 11th attacks.
In the wake of September 11th, the NYPD set up their own intelligence unit. They considered themselves a “miniature CIA” for the five boroughs. They sent men into the neighborhoods, the Muslim communities, to accumulate as much intelligence as they could. Who frequented which stores, what people watched on television, what they wore and ate, how they spoke and what they talked about, all of it was collected. Anything. Everything. But when it came time to access information on three people named Najibullah Zazi, Zarein Ahmedzay, and Adis Medunjanin, they had nothing.
On September 6th, 2009, the intelligence community had intercepted emails from the US to a Yahoo account in Pakistan which was linked to an al-Qaeda operative. They had been monitoring it for sometime. FBI analysts traced the US account to a computer in Aurora, Colorado. It belonged to Najibullah Zazi, an Afghan whose family had escaped the war-torn country, first to Peshawar, then to New York. NYPD intelligence produced nothing. They knew where the Muslims were, but not the terrorists. There was no early warning. No hint of what was being planned. They didn’t even have the names on file.
But like the Yemeni phone connection, the email address proved especially useful, not massive amounts of useless intelligence; and because there was better cooperation, that information was shared. When it mattered most, the mass intelligence programs had failed. In the end, good partnerships and good intelligence and even good circumstances had thwarted Zazi.
In the long-running security versus liberty debate, Pauley obviously sides with security. That is the purpose of intelligence collection, isn’t it? Pauley makes a number of dubious assumptions here. First is the assumption that massive data collection thwarts attacks. Actually, if anything, good intelligence does, along with good partnerships and the ability to share that intelligence. Massive data hoarding is not only legally-questionable but fails as an adequate security measure. A 300-page report by legal and intelligence experts appointed by Obama, himself, have stated as much. That “telephony metadata” was “not essential to preventing attacks”. Obama could not even identify a single time the NSA program actually stopped a terrorist attack.
Second, Pauley perpetuates the myth of al-Qaeda as a bureaucratic institution. Once again, not only does he neglect the rise of independent cells, terrorists which are unaffiliated with al-Qaeda, but that somehow massive data collection will thwart these terrorists’ efforts (and al-Qaeda’s, wherever they’re hiding). Even though it clearly has not. How many terrorist attacks are there to thwart in the first place? And of the ones that are thwarted (leaving aside the obvious ones that are not), how many are due to the massive data collection and surveillance? Zero, apparently. Pauley cites cases which have arguably nothing at all to do with the effectiveness of the NSA program.
Skimming Pauley’s decision is quite a wonder. He talks about how the government does not know who the phone numbers belong to, and will not know “without resorting to additional techniques”. That doesn’t really bode well. For instance, the FISA court, that secretive court which oversees the mass surveillance, approves pretty much anything and everything the government requests. When they ordered Verizon, in top-secret, of course, to hand over all call data, it seemed business as usual. The Supreme Court later played along, and continues to play along for now. Not to mention lawyers like, well, Pauley, whose decisions are couched in the flimsiest of reasoning.
“Whether the Fourth Amendment protects bulk telephony metadata is ultimately a question of reasonableness.” – Judge William H. Pauley III
True. And if you can sit there with a straight face and tell me that this program is reasonable, especially in regards to “disrupting terrorist attacks”, which you seem to think is the program’s prime directive, then I’ll goosestep along. Until then, I’m just going to have to conclude that this so-called metadata program is completely unnecessary. There’s a measure of intelligence collection and surveillance – which I have actually defended here – that most people are willing to accept. Under reasonable circumstances. There is nothing in this decision, or in the evidence presented, that indicates that the program under contention is in any bloated way, shape, or form, reasonable.
What is funniest of all is that Pauley says that Americans depend on “technology for the conveniences of modernity”. Al-Qaeda, in a “bold jujitsu”, used the technology against us. Is the NSA’s massive data hoarding not a dependency on technology for the “conveniences of modernity”? Who will be the next “bold jujitsu” practitioner? One day, perhaps even today or tomorrow, it will all be used against us again.
- Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008), 18
- Ibid., 18
- Ibid., 18
- Ibid., 18-19
- Ibid., 19
- Ibid., 20
- Matt Apuzzo and Adam Goldman, Enemies Within: Inside the NYPD’s Secret Spying Unit and bin Laden’s Final Plot Against America (New York: Simon & Schuster, 2013), 22