Blatant Intimidation: Glenn Greenwald's Partner Detained At Heathrow Under Terrorism Law, All His Electronics Seized

from the obnoxiousness dept

In a move that is clearly driven more to intimidate Glenn Greenwald than anything else, his partner, David Miranda, was detained for nine hours at Heathrow airport, which he was flying through on his way home to Rio de Janeiro from Berlin. On top of that, all of his electronics -- his mobile phone, laptop, camera, memory sticks, DVDs and games consoles -- were seized and not returned. This was nothing but basic government thuggery and intimidation. There is simply no credible reason to detain Miranda other than to "send a message" to Greenwald as punishment for doing his job and exposing government abuse. The law under which he was detained, Schedule 7, is extremely controversial already, but it appears that the UK officials were clearly abusing it.

As Jerome Taylor notes, Schedule 7 makes clear that the "power to stop, question and detain" applies solely for the purpose of "if they fall within section 40(1)(b)," which you can look at here:

40. Terrorist: interpretation.

(1) In this Part “terrorist” means a person who—

(a) has committed an offence under any of sections 11, 12, 15 to 18, 54 and 56 to 63, or
(b) is or has been concerned in the commission, preparation or instigation of acts of terrorism.

(2)The reference in subsection (1)(b) to a person who has been concerned in the commission, preparation or instigation of acts of terrorism includes a reference to a person who has been, whether before or after the passing of this Act, concerned in the commission, preparation or instigation of acts of terrorism within the meaning given by section 1.

In short, the only reason you're supposed to be able to detain someone is to determine if they're involved in committing, preparing or instigating "acts of terrorism." Clearly, that's ridiculous when it comes to even Glenn Greenwald, let alone his partner. The law is already ridiculous enough in that it allows officials to detain anyone, even without suspicion, solely for the purpose of questioning them to see if they fall under this section (i.e., having something to do with terrorism). Under the law, they have nine hours to do this questioning, and then they need to release or arrest the detainee. In this case, they held Miranda for all nine hours. This is not common. As the Guardian points out, the government's own stats show that 97% of people detained under this law are released in less than an hour. Only one person out of every 2000 are kept for more than six hours. Yet, suddenly, they had to hold Miranda for all nine hours and then take all of his electronics?

That's just government thuggery and intimidation.

Filed Under: david miranda, glenn greenwald, intimidation, journalism, schedule 7, terrorism, uk

DOJ: There's No Expectation Of Privacy In Your Phone Records Because People Don't Like Terrorists

from the um... dept

Following our post on the NSA's document defending its surveillance programs, let's look more closely at the Justice Department's "white paper" explaining the legal rationale for scooping up all of the metadata on every phone call under Section 215 of the Patriot Act, also known as the "business records" or "tangible things" section. This document just focuses on that one program, rather than the many other programs, and within its 23 pages there are so many ridiculous things. I'm sure we'll come back to many of them in future posts. After going through it a few times, it seems abundantly clear that this was a rush job by the administration to defend this particular program, without realizing just how ridiculous many of its claims are. As Julian Sanchez has noted, the arguments made in this document appear to contradict the DOJ's actions in dozens of ways, and basically invalidates a ton of previous arguments concerning other surveillance programs. And, worse, it more or less opens the door for massive surveillance on a variety of other things. Again from Sanchez, the argument in this paper could easily apply to having a local prosecutor subpoena all city phone records looking for drug dealing. Because safety!

Let's pick out just a few of the more inane arguments, starting with that first one highlighted above. As we've seen in the past, the DOJ makes a long and incredibly misleading argument about why your phone records aren't private under Smith v. Maryland, but then it goes further to argue that even if a court were to say that Smith v. Maryland and the third party doctrine didn't apply here, that's okay, because the searches are "reasonable" because people want to be protected from terrorists.

... there is an exceptionally strong public interest in the prevention of terrorist attacks, and telephony metadata analysis can be an important part of achieving that objective. This interest does not merely entail “ordinary crime-solving,” King, 133 S. Ct. at 1982 (Scalia, J., dissenting), but rather the forward-looking prevention of the loss of life, including potentially on a catastrophic scale. Given that exceedingly important objective, and the minimal, if any, Fourth Amendment intrusion that the program entails, the program would be constitutional even if the Fourth Amendment’s reasonableness standard applied.

Of course, as stated over and over again, there has yet to be any evidence presented that Section 215 did anything at all to prevent terrorism. So that seems fairly weak on its face. But, even more to the point, that justification is the justification for wiping out the entire 4th amendment. There's an exceptionally strong public interest in stopping all kind of negative activity, so why not place a video cameras and a recorder in every private room in the country?

On to some other misleading points:

Courts have held in the analogous contexts of civil discovery and criminal and administrative investigations that “relevance” is a broad standard that permits discovery of large volumes of data in circumstances where doing so is necessary to identify much smaller amounts of information within that data that directly bears on the matter being investigated.

Not true. The situations they're discussing are not at all analogous. Yes, in such cases courts will often grant broad discovery and investigations into specific crimes or civil violations, but that's not what Section 215 does at all. It has been interpreted to mean that every record on every phone call is to be collected by the NSA regardless of any actual connection or indication of a connection to terrorism. That's not the same thing. At all. That makes a complete mockery of the term "relevant." Because when everything is "relevant" why even include the term relevant in the law? Just admit that you're enabling fishing expeditions on all data.

Moreover, information concerning the use of Section 215 to collect telephony metadata in bulk was made available to all Members of Congress, and Congress reauthorized Section 215 without change after this information was provided. It is significant to the legal analysis of the statute that Congress was on notice of this activity and of the source of its legal authority when the statute was reauthorized.

And this is the other shocker. To translate, this is saying "because Congress did not explicitly tell us to stop collecting all data, we take that as implicit permission to collect all data." As for that claim that this information was "made available to all Members of Congress," that too is misleading, evidence by approximately half of Congress admitting they had no clue about this at all. Also, "made available" is incredibly different from "clearly informed and explained to Congress what we were doing." Basically, they gave this info to the Intelligence Committee, who then sought to obfuscate it and play down any concerns. While others in Congress could ask to see the details (though, sometimes those requests are denied), they're often not allowed to bring in staff who might understand the details, nor are they allowed to make copies or take notes. These members are shown documents that may not be clear and which they might not understand. That's not fully informing them. And the resulting decision not to directly block that program is laughable because many in Congress flat out lied about these programs (or were totally misinformed). To take that as "approval" of these programs takes incredible hubris.

Only information responsive to the limited queries that are authorized for counterterrorism purposes is extracted and reviewed by analysts. Although the number of unique identifiers has varied substantially over the years, in 2012, fewer than 300 met the “reasonable, articulable suspicion” standard and were used as seeds to query the data after meeting the standard. Because the same seed identifier can be queried more than once over time, can generate multiple responsive records, and can be used to obtain contact numbers up to three “hops” from the seed identifier, the number of metadata records responsive to such queries is substantially larger than 300, but it is still a tiny fraction of the total volume of metadata records. It would be impossible to conduct these queries effectively without a large pool of telephony metadata to search, as there is no way to know in advance which numbers will be responsive to the authorized queries.

That 300 queries number has been thrown about quite a bit over the last month or so, but here they're admitting that the number of records seen is "substantially larger." I would imagine so. Now that they're admitting they can look at almost everything, since with "three hops" you can cover most everyone. A study from 2011 showed that everyone on the internet was, on average, 4.74 steps away from everyone else. So if you can look out 3 hops, you can look at an awful lot of metadata.

Going back to the question of relevance, the DOJ again claims that Congress must have known that relevance under the law means "everything."

Standing alone, “relevant” is a broad term that connotes anything “[b]earing upon, connected with, [or] pertinent to” a specified subject matter. 13 Oxford English Dictionary 561 (2d ed. 1989). The concept of relevance, however, has developed a particularized legal meaning in the context of the production of documents and other things in conjunction with official investigations and legal proceedings. Congress legislated against that legal background in enacting Section 215 and thus “presumably kn[e]w and adopt[ed] the cluster of ideas that were attached to [the] word in the body of learning from which it was taken.”

Right. How dare Congress think the word "relevant" as used in the law might possibly mean the same thing that "relevant" means in the English language. It should have known that the federal government uses a different definition of relevant, which really has nothing to do with relevance at all.

And, now, how about the DOJ completely reinventing the law so that it applies to future records rather than past records? That's fun:

Prospective Orders. Section 215 authorizes the FISC to issue orders to produce telephony metadata records prospectively. Nothing in the text of the statute suggests that FISC orders may relate only to records previously created. The fact that the requested information has not yet been created at the time of the application, and that its production is requested on an ongoing basis, does not affect the basic character of the information as “documents,” “records,” or other “tangible things” subject to production under the statute.

Except, as some are pointing out, when the shoe is on the other foot, the DOJ directly argues that unless it's explicitly put forth in the law, records requests do not apply to prospective orders. Here are the DOJ's rules on FOIA requests in which it says future documents are not covered. Or how about the DOJ's own guidelines for electronic evidence in criminal investigations. On pages 139 and 140 of that document, you can see it specifically says that requests for information "should not be used prospectively to order providers to preserve records not yet created." But that's concerning a law -- 18 USC 2703 which also does not explicitly state it applies to prospective records. So why does the government say that it doesn't apply to prospective records in that case, but magically it does apply to them when we're talking about the Patriot Act. And, if the DOJ is relying on Congress' knowledge of how these things are currently interpreted under the law, couldn't Congress just point out that it looked at the DOJ's reading of 2703 and believed that the administration would clearly know that just because it doesn't explicitly call out prospective orders on future documents, that the government would know the law doesn't apply to future records?

Honestly, this document is a mess. It's clearly a whitewash job done to cover up the fact that this program is a massive intrusion on privacy and almost certainly both illegal and unconstitutional. Coming up with after-the-fact legal justifications for it just shows how desperate the administration is getting.

Filed Under: doj, expectation, nsa surveillance, patriot act, privacy, prospective orders, section 215, surveillance, terrorism

Senator Leahy Calls Bulls**t On Claim That Metadata Collection Stopped Terrorist Attacks

from the good-for-him dept

One of the key claims that defenders of the NSA bulk data collection keep making is that the program was necessary to stop various terrorist "events" (note the careful choice of the word "events" rather than "attacks"). In fact, last week in arguing against the Amash Amendment, Rep. Mike Rogers directly claimed that "54 times this and the other program stopped and thwarted terrorist attacks." Of course, as we pointed out, he carefully added the "and the other program" to make it seem like the bulk data collection program being debated was necessary. Amazingly, that claim of 54 terrorist "events" is significantly more than what intelligence officials have claimed. They say it's more like 13. Yet, yesterday, Senators Ron Wyden and Mark Udall both said that there was no evidence to support this, and at this morning's Senate Judiciary Committee hearings about the surveillance program, Senator Patrick Leahy was fairly direct in making it clear that what Rogers claimed last week was completely bogus:

"If this program is not effective, it has to end," Leahy said, noting that a classified list of uses of the phone record program "does not reflect dozens or even several terrorist plots that Section 215 helped thwart or prevent, let alone 54 as some have suggested."

Perhaps Rep. Mike Rogers' staffers -- rather than threatening me with bogus defamation claims -- should focus on having their own boss not mislead Congress and the American public. Wouldn't that be nice?

Much of the rest of the hearing suggested, yet again, that Congress simply doesn't believe intelligence officials and the administration (and the dwindling number of defenders of this surveillance) any more, as multiple Senators discussed introducing bills to limit the surveillance, and noted various problems with the programs.

Sen. Jeff Flake, R-Ariz., raised the prospect of creating an independent counsel to consider surveillance requests presented to the secret Foreign Intelligence Surveillance Court to guard against potential privacy violations.

"Don't you think we have left the state relevance?'' Sen. Mike Lee, R-Utah, asked, suggesting that the mass records collection was too large to be an effective counter-terrorism tool.

"How can one get one's mind around the concept (of) that amount of data?'' Lee said.

Said Sen. Richard Blumenthal, D-Conn.: "It appears this system is failing in maintaining the trust and credibility of the American people.''

[....]

"When you look at the reach of this (phone record collection) program, it envelopes a substantial number of Americans,'' said Sen. Richard Durbin, D-Ill. "It seems to me that what is being described as a very narrow program is a very broad program.''

"There are going to be some proposals for changes to the law,'' Leahy said.

Intelligence officials tried to defend the program, but it didn't seem to win many people over. There was lots of talk of "connecting the dots" and "finding needles in haystacks," but considering the lack of evidence that the program actually helps with either of those things, they didn't make a very convincing case. Of course, the best response to all of this came, sarcastically, from Julian Sanchez's commentary on the hearings:

The only people who spend THIS much time "looking for needles" are addicts...

So true. Time to get intelligence officials into rehab.

Filed Under: metadata, mike rogers, nsa, nsa surveillance, patrick leahy, section 215, senate judiciary committee, surveillance, terrorism

Public Outlook Shifts: More Worried About Gov't Stomping On Civil Liberties Than Terrorism

from the about-time dept

We've already noted that the tide has shifted in Congress, such that the NSA's surveillance activities are almost certainly going to be at least somewhat restricted. Perhaps it's a reflection of the public realizing just how screwed up things are. As Glenn Greenwald notes, PewResearch's latest polls show that, for the very first time, Americans are more concerned about the loss of civil liberties than they are about terrorism.

"Overall, 47% say their greater concern about government anti-terrorism policies is that they have gone too far in restricting the average person's civil liberties, while 35% say they are more concerned that policies have not gone far enough to protect the country. This is the first time in Pew Research polling that more have expressed concern over civil liberties than protection from terrorism since the question was first asked in 2004."

The fear-mongering and FUD about "terrorism!" at every turn seems to have served the government well for over a decade in eroding civil liberties -- but it looks like the Snowden revelations about what the government is really doing is finally shifting things back in the other direction. It's about time.

Filed Under: civil liberties, privacy, public opinion, terrorism

Shallow Surveillance Efforts Like PRISM Will Only Catch The 'Stupidest, Lowest-Ranking Of Terrorists'

from the better-watch-out-for-the-skin-deep dept

Government officials keep assuring the public that these surveillance programs are in place to track terrorists and prevent further violent activity aimed at our nation. But much of what the government actually tracks and collects is nearly useless. It's aimed at the sort of platforms and communication devices used by the general public -- the sort of people who make use of the "top level" because they actually have nothing to hide.

Leonid Bershidsky argues that casting the net wide, but only to a shallow depth, won't actually "catch" anything but the most inept of terrorists.

The infrastructure set up by the National Security Agency, however, may only be good for gathering information on the stupidest, lowest-ranking of terrorists. The Prism surveillance program focuses on access to the servers of America’s largest Internet companies, which support such popular services as Skype, Gmail and iCloud. These are not the services that truly dangerous elements typically use.

Truly dangerous people are smart enough to know to avoid anything easily tracked, surveilled or easily exposed. There may be a little value in catching anything that briefly rises to the surface or surveilling the "public faces" of terrorism, but those serious about their agenda will be operating far below these easily-tapped sources.

In a January 2012 report titled “Jihadism on the Web: A Breeding Ground for Jihad in the Modern Age,” the Dutch General Intelligence and Security Service drew a convincing picture of an Islamist Web underground centered around “core forums.” These websites are part of the Deep Web, or Undernet, the multitude of online resources not indexed by commonly used search engines.

The Netherlands’ security service, which couldn’t find recent data on the size of the Undernet, cited a 2003 study from the University of California at Berkeley as the “latest available scientific assessment.” The study found that just 0.2 percent of the Internet could be searched. The rest remained inscrutable and has probably grown since. In 2010, Google Inc. said it had indexed just 0.004 percent of the information on the Internet.

If someone or something doesn't want to be found on the internet, it's easy to stay hidden, or at the very least, continue to operate below the dragnet. On top of what's not being indexed, there are options available to go completely off the grid. This makes steady communication difficult, but not impossible. What does happen on the net is encrypted or otherwise obfuscated.

Communication on the core forums is often encrypted. In 2012, a French court found nuclear physicist Adlene Hicheur guilty of, among other things, conspiring to commit an act of terror for distributing and using software called Asrar al-Mujahideen, or Mujahideen Secrets. The program employed various cutting-edge encryption methods, including variable stealth ciphers and RSA 2,048-bit keys.

As Bershidsky puts it, tools like the PRISM system and phone metadata are much better suited for surveilling those who don't have any reason to suspect the government has an interest in their movements and actions. In other words: American citizens, the same people who are supposedly not being targeted.

If the FBI and the NSA are only interested in catching clumsy would-be terrorists who can't be bothered to stay off open channels, then, much like the programs themselves, they can only offer us a false sense of security. Being saved from the bench warmers of the terrorism world doesn't ultimately do anything to increase safety, but it does give these agencies something to point to when their actions are questioned. (The FBI has practically set up its own "Busting Stupid Terrorists" cottage industry.) "We stopped [insert plausible but impressive number here] attacks, therefore we need to continue collecting 'dots' and multiple haystacks of connective material."

Whatever the FBI and NSA are gathering from skimming the web's surface is only a minute percentage of what's available. It would seem that deeper, targeted efforts would be much more effective, rather than simply asking for everything and working backwards. But if the actual intent is to surveill American citizens (with prevented acts of terrorism being a bonus), then these agencies are in the perfect position to do exactly that.

Filed Under: dark web, deep web, encryption, nsa, nsa surveillance, prism, terrorism, terrorists

Only A Terrorist Would Complain About Tennessee's Water Quality

from the drink-the-damn-water...-or-the-terrorists-win! dept

The War on Terror has lasted so long the words have lost all meaning. Some of our war on terror actually involves warlike actions in other countries. Other parts of this war take the form of a debate on which constitutional rights are now considered optional -- a debate the general public isn't welcome to attend.

Still other parts of this capital-W, neverending war are even more poorly defined. Whenever some act or statement might have potentially negative consequences for Americans and/or their government, these too become our enemies. Another example of how the word "terrorism" has come to mean everything and nothing simultaneously is gracelessly provided by a member of Tennessee's water regulation body.

A Tennessee Department of Environment and Conservation deputy director warned a group of Maury County residents that unfounded complaints about water quality could be considered an “act of terrorism.”

“We take water quality very seriously. Very, very seriously,” said Sherwin Smith, deputy director of TDEC’s Division of Water Resources, according to audio recorded by attendees. “But you need to make sure that when you make water quality complaints you have a basis, because federally, if there’s no water quality issues, that can be considered under Homeland Security an act of terrorism.”

It's tough to tell where Smith was headed when he began this statement, but it's altogether unsurprising where it ends up. Anything is an act of terrorism, even complaining about water quality. If the state disagrees with the public's assessment that the water is so hard it's best consumed with a chisel and a fork, they're now on The List and should know that any attempts to board a plane in the future will require a full-blown molestation of their person and carry-on luggage.

Even if the state agrees the water is better described as "heavily diluted silt," you've still got the feds to deal with, at least according to Smith. Apparently, the US government also has the power to declare your drinking water "pretty excellent, actually" before charging your complaining ass with "communicating terroristic speculation on local water quality."

At least the audience had the presence of mind to a.) get it all on tape and b.) say what everyone was thinking.

“Can you say that again, please?” an audience member can be heard asking on the audio.

Smith went on in the recording to repeat the claim almost verbatim.

Well, if you can't be right, at least be consistent. Smith's spokespeople were quick to issue a "no comment" and pledged to get to the bottom of Smith's statement, which was probably "misheard" or "taken out of context."

“In terms of the comments made by a member of the Water Resources Division at the meeting, we are just receiving the information and looking into this on our end,” spokeswoman Meg Lockhart said. “The department would like to fully assess what was said in the meeting. I am told that the meeting was far longer than the audio clip provided by SOCM and that Mr. Smith actually clarified his remarks. But again, we are looking into it.”

The comment shocked and outraged attendees, who saw it as an attempt to silence complaints, said Brad Wright, organizer for SOCM in Middle Tennessee.

Rep. [Sheila] Butt, who organized the meeting, also was shocked.

“I think that we need to be very careful with how we use the words ‘terrorist’ and ‘terrorism,’ ” she said. “I thought it was out of context. That did not apply to anything that we were discussing at the meeting.”

Butt said the water issue had been marred by “communication breakdowns” by both sides, which wouldn’t be made easier with such inflammatory comments being made.

Silence by rhetoric or not, there's evidence that those in charge of regulating water supplies take any disparagement of the goods very seriously.

A few months ago, a couple of Florida DJs pranked the local population, issuing a warning that the local drinking water was full of "dihydrogen monoxide." A small panic ensued and the pair briefly found themselves facing possible felony charges before more rational thinking prevailed.

[A]pparently, the station, the water works, and perhaps the authorities are still trying to figure out if the two hosts could face felony charges for, again, reporting that the scientific name of water was coming out of the pipes. "My understanding is it is a felony to call in a false water quality issue," Diane Holm, a public information officer for Lee County, told WTSP, while Renda stood firm about his deejays: "They will have to deal with the circumstances."

There you have it. If citizens know what's good for them, they'll shut up and choke down the local water, no matter how loaded with unexpected minerals, chemicals and barely treated sewage it is. This is America, dammit, home of the world's finest water! We certainly don't need rowdy crowds of dehydrated malcontents ruining our reputation at home and abroad with their terroristic complaining.

Filed Under: sherwin smith, tennessee, terrorism, water quality

Yet Another Claim Of How NSA Surveillance 'Saved Us' From Terrorists Falls Apart Under Scrutiny

from the keep-trying-guys dept

As NSA apologists in the government seek to defend the NSA surveillance program, they keep talking about how critical it was to stopping "more than 50" terrorist operations. However, every time they've described any, the details have shown that the surveillance programs often had little to do with uncovering the plot, and were clearly not a key component of stopping anything. We already discussed the NYC subway bombing plot, which was discovered through other means. The other story initially raised, concerning David Headly was similarly found to be on shaky ground as well.

At the hearings this week, FBI deputy director Sean Joyce claimed that the programs were helpful in stopping a plan to bomb the NY Stock Exchange, saying that the program helped find and capture the planners "in the very initial stages," implying that this was before any damage was done. When questioned just how "serious" the plot was, Joyce claimed: "I think the jury considered it serious, since they were all convicted." Ah, well, convictions are public and people went looking, and now it appears that this story is rapidly falling apart as well. The case in question was about Sabirhan Hasanoff and Wesam El-Hanafi, both of whom pleaded guilty to providing material support to terrorism. But nothing in the case had to do with bombing the stock exchange. The idea that the jury convicted them of such caught those involved in the case by surprise:

Joshua L. Dratel, a lawyer for Mr. Hasanoff, called Mr. Joyce's portrayal "astonishing" because none of the defendants was charged with the stock exchange allegation and there was no jury trial in any of the cases.

And, now it's come out that the "threat" to the stock exchange never really existed. The people involved did explore the idea, but gave it up on their own well before doing any serious planning, and, of course, the charges against them had nothing to do with that. In other words, while these guys may have supported terrorism, they didn't have any actual plot to bomb the stock exchange, there was no risk, no lives were saved, and they were not convicted of any such plot. So, no, the programs didn't save any lives here either.

You'd think that the NSA and the FBI would be trotting out the good examples first. If this is the best they have...

Filed Under: fbi, nsa, nsa surveillance, ny stock exchange, sean joyce, terrorism

Senator Lindsey Graham Defends NSA Surveillance By Arguing About Something Entirely Different

from the who-elected-this-guy? dept

We recently mentioned that Senator Lindsey Graham said he was happy that the NSA was collecting the data on his calls, because he doesn't speak to terrorists. Of course, that's an incredibly ignorant statement in many, many ways. However, Senator Graham is continuing to make very silly statements about the NSA surveillance program. During an appearance on Meet the Press, Graham defended the program because, he explained, we should be tracking terrorists:

"I believe we should be listening to terrorists, known terrorist emails, following their emails and following their phone calls. And if they're emailing somebody and the United States or calling a number in the United States, I would like to get a judge's position to monitor that phone call," Graham said on "Meet the Press" on NBC. "If we don't do that, another attack on our homeland is very likely."

That's nice and all... but the things he discussed -- listening to terrorists, and getting info on their emails -- have nothing to do with the new programs that have been revealed. That kind of stuff was possible well before all of these new things came along. The NSA has long been able to do surveillance on such things. And, law enforcement has been able to go to a judge and get a wiretap order on phone calls. But that's not what has everyone concerned: it's the fact that this program collects data on everyone. It's not just collecting data on terrorists, and much of it doesn't require having to go to a judge to monitor specific information. Rather, broad collections of data are being pulled, so that the NSA can later go through them.

It's shameful that Senator Graham would so misrepresent what this debate is about. Either he doesn't understand it (which is horrifying) or he's deliberately misleading the public about it (which is worse).

Filed Under: lindsey graham, nsa, nsa surveillance, terrorism

Dick Cheney's Crystal Ball Says That NSA Surveillance Could Have Stopped 9/11

from the but-not-the-boston-bombing dept

We already commented on FBI director Robert Mueller arguing that the NSA's mass surveillance techniques would have prevented 9/11, and now it appears that Dick Cheney is agreeing with this fictional scenario in which his crystal ball says what might have happened:

"As everybody who's been associated with the program's said, if we had had this before 9/11, when there were two terrorists in San Diego — two hijackers — had been able to use that program, that capability, against that target, we might well have been able to prevent 9/11," Cheney said on "Fox News Sunday."

That's speculation based on nothing, frankly. As has been widely covered, there were a number of reasons why the government failed to stop 9/11, just as there were plenty of reasons it failed to stop the Boston bombings back in April. The idea that this program would have stopped one (while it clearly missed the other) isn't particularly convincing.

Of course, none of that gets to the bigger question of whether or not it's worth it. In theory, we could stop all sorts of crimes by putting military personnel and equipment in the streets, with the power to invade any home and do a full search. But we don't allow that. Because that's a violation of our privacy. And, yes, the loss of life from a terrorist attack is tragic and horrifying -- but many more people are killed in car accidents, and we don't freak out about that and take away everyone's cars. Giving up our basic principles of freedom on the off chance it might possibly stop a terrorist attack (while still missing other terrorist attacks) doesn't really seem like living up to the basic ideals of this country.

Filed Under: 9/11, dick cheney, fud, nsa, nsa surveillance, terrorism

FBI Boss: Collecting Billions Of Phone Records Could Prevent Next 9/11, Boston Bombing -- Despite Not Having Prevented The Originals

from the if-at-first-you-don't-succeed,-double-down dept

Robert Mueller, the director of the FBI testified in front of the House judiciary committee on Thursday, and like others before him, attempted to justify widespread domestic surveillance by pointing at all the terrorist activity it has and could have prevented. (All the while conveniently ignoring the fact that these tactics had little to do with successfully prevented terrorist attacks.)

He described how Khalid al-Midhar, one of the 9-11 hijackers, had called a Yemeni safe house from a phone in San Diego shortly before the attack – a phone call that would have been intercepted and acted upon, claimed Mueller, had today's surveillance system been in place.

Prevented 9/11? That's an interesting claim -- one that can't be easily disputed (or verified). But there's a couple of problems with Mueller's scenario. One, the FBI would have needed to "connect all the dots" beforehand, something that much easier said than done. Not having these dots connected allowed the Boston bombers to slip through the surveillance net. This is not necessarily a failure. Exponentially increasing the amount of data turns surveillance into a search for a needle in a haystack -- and the FBI, NSA, et al seem to be mainly concerned that the haystack just isn't big enough.

Two, there's a good possibility that the FBI and NSA already had something like this in the works (if not actually operable) even before the 9/11 attacks. The Big Picture points out that the NSA was already installing backdoors in the Windows operating system back in 1999, and links to a story detailing a DEA/NSA collaboration, which supposedly installed a domestic "call tracing program" at AT&T and Verizon in December of 2000 and which had been tracking calls from the US to various countries since the 1990's.

The government’s dependence on the phone industry, driven by the changes in technology and the Bush administration’s desire to expand surveillance capabilities inside the United States, has grown significantly since the Sept. 11 attacks. The N.S.A., though, wanted to extend its reach even earlier. In December 2000, agency officials wrote a transition report to the incoming Bush administration, saying the agency must become a “powerful, permanent presence” on the commercial communications network, a goal that they acknowledged would raise legal and privacy issues.

In the drug-trafficking operation, the N.S.A. has been helping the Drug Enforcement Administration in collecting the phone records showing patterns of calls between the United States, Latin America and other drug-producing regions. The program dates to the 1990s, according to several government officials, but it appears to have expanded in recent years.

Officials say the government has not listened to the communications, but has instead used phone numbers and e-mail addresses to analyze links between people in the United States and overseas. Senior Justice Department officials in the Bush and Clinton administrations signed off on the operation, which uses broad administrative subpoenas but does not require court approval to demand the records...

In a separate program, N.S.A. officials met with the Qwest executives in February 2001 and asked for more access to their phone system for surveillance operations, according to people familiar with the episode. The company declined, expressing concerns that the request was illegal without a court order. The agency, those knowledgeable about the incident said, wanted to install monitoring equipment on Qwest’s “Class 5” switching facilities, which transmit the most localized calls. Limited international traffic also passes through the switches.

Other N.S.A. initiatives have stirred concerns among phone company workers. A lawsuit was filed in federal court in New Jersey challenging the agency’s wiretapping operations. It claims that in February 2001, just days before agency officials met with Qwest officials, the N.S.A. met with AT&T officials to discuss replicating a network center in Bedminster, N.J., to give the agency access to all the global phone and e-mail traffic that ran through it.

The same lawsuit accuses Verizon of setting up a dedicated fiber optic line from New Jersey to Quantico, Va., home to a large military base, allowing government officials to gain access to all communications flowing through the carrier’s operations center.

This certainly gives the appearance that someone, if not necessarily the FBI, would have had access to a great many phone records months before the 9/11 attacks, if not actually years before. And yet, the attacks still happened and the head of the FBI is using the tragedy as a crutch to support harvesting millions of records on domestic end-to-end calls.

(For added verification that the "because terrorism" argument for widespread surveillance predates the 9/11 attacks, here's George Herbert Walker Bush complaining that requiring warrants for "terror" wiretaps would be an "unnecessary diminution of collection of foreign intelligence" -- in 1976.)

Despite this, Mueller doubled down on the "threat prevention" argument. Not only could the surveillance prevent the next 9-11, but the next Boston bombing as well. This led to many Congressmen angrily asking why the FBI hadn't bothered preventing the first Boston bombing, seeing as it had access to all of this ultra-effective, terrorist-fighting data. Mueller's rebuttal? Even the smallest curtailing of the FBI's virtually unlimited access to data would be catastrophic.

"If you narrow [the scope of surveillance], you narrow the dots and that might be the dot that prevents the next Boston," said Mueller.

Mueller also expressed concern about granting permission to Google and other internet companies to disclose details on requests for data.

He also rejected calls from technology companies such as Google to disclose the scale of the programs, saying even this information could help terrorists seeking to hide their communications.

"Any tidbit of information that comes out" about how authorities track communications means terrorists "find ways around", he said.

"Every time we have a leak like this and you follow it up and look at the intel afterwards [you find terrorists] are looking for ways around.. If we lose our ability to get their communications we are going to be exceptionally vulnerable."

Sure, terrorists might decide to use services that fight government data requests (or avoid services the government is currently surveilling) but so will many Americans and foreigners who are currently suspected of nothing but are being loosely surveilled all the same. Keeping the terrorists in the dark would be one thing if the surveillance was limited to suspected terrorists, but the FBI/NSA's blanket coverage affects millions of people worldwide. This, combined with the lack of proof these supposedly crucial tools are useful in fighting terrorism, is a strong argument for allowing companies forced to comply with untargeted data hauls granted by a secret court to, at minimum, inform their users that these demands are being received and/or complied with.

You have to admire Mueller's one-track defense. According to him, everything that's been leaked harms our national anti-terrorists efforts. Non-terrorist Americans have no need to question the methods being used or fear for their privacy. Mueller says the call data can only be used for anti-terrorism efforts, citing section 205 of the PATRIOT ACT. But as Julian Sanchez points out, this section explicity allows the supposedly "one-purpose" information to be disseminated to law enforcement in order to pursue non-terrorist suspects [Section §1861(g)(2)(c)].

In this section, the term “minimization procedures” means—

(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.

Above and beyond these "minimization procedures" that allow for a surprising amount of easy dissemination, there's the fact that the FBI (and others) have rendered the limitations of the PATRIOT ACT meaningless by declaring pretty much everything collected to be "relevant" to anti-terrorist efforts.

Others questioned whether the FBI had acted lawfully in seeking to use section 215 of the Patriot Act to target all calls made in the US on the basis that they "might become relevant" to future terrorism investigations.

Searching the houses of every phone owner might uncover something relevant to current investigations, which is arguably more useful than harvesting data for future reference, and yet, no one seems to think that's a good idea. Gathering metadata is much less intrusive than house-to-house sweeps, but just because it's less noticeable doesn't mean it's any less wrong.

Mueller's excuses were worn out before he even started using them. But it wasn't the first time "terrorism" has been used to justify government overreach and it surely won't be the last.

Filed Under: civil liberties, fbi, nsa, patriot act, robert mueller, surveillance, terrorism