ARE WIRETAP LIMITS HAMPERING EFFORTS TO PRE-EMPT TERRORISTS?
REVIEW & OUTLOOK
MAY 13, 2010
Surveillance and Shahzad
Are wiretap limits making it harder to discover and pre-empt jihadists?The debate about the Times Square bomb plot has focused, so far, on what happened after Faisal Shahzad’s detonator fizzled. Should Congress make marginal changes to Miranda procedures, and the like? The more urgent question in our view is why Shahzad wasn’t stopped before he parked his SUV on West 45th Street.
Our national conversation would be very different had that bomb exploded in the heart of Manhattan, yet little attention has focused on this larger apparent intelligence failure. Specifically, why didn’t U.S. surveillance pick up Shahzad’s intentions on his many trips to Pakistan? And was this failure at all related to restrictions imposed on wiretapping by the Foreign Intelligence Surveillance Act, or FISA, the 1978 law that has been tightened on terrorist surveillance thanks to howling by the anti-antiterror left?
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While the evidence is heavily classified, what we have learned so far gives cause for concern. Shahzad was arrested on May 3, some 53 hours after his car bomb was discovered, and in short order Obama Administration officials were making very specific claims about his history and terror links.
Counterterrorism chief John Brennan confirmed in a May 10 interview that Shahzad had “extensive interaction” with the Pakistani Taliban, including bomb-making training in Waziristan. Pakistani authorities detained multiple suspects in connection with the plot, including two men who had apparently conspired with Shahzad during a five-month visit that ended in February. These arrests occurred only hours after Shahzad was apprehended on the JFK tarmac.
While Shahzad cooperated with interrogators, the speed of the investigation and the level of detail made public suggest that the Administration may possess additional corroborating evidence. Was Shahzad surveilled prior to his capture, or were intelligence officials able retroactively to reconstruct his activities from other already-gathered foreign wiretaps?
At a Senate hearing three days after Shahzad’s arrest, New Jersey Democrat Frank Lautenberg asked Eric Holder if any federal agencies were “looking at this fellow prior to the attempted bombing.” The Attorney General declined to answer, though he did reveal that “we’re in the process of looking at indices, files, and to see exactly what we knew about this gentleman and when we knew it.”
Mr. Lautenberg’s question is important for many reasons, not least because U.S. intelligence-gathering capability has been substantially curtailed in stages over the last decade. Via executive order after 9/11, the Bush Administration created the covert Terrorist Surveillance Program. TSP allowed the National Security Agency to monitor the traffic and content of terrorist electronic communications overseas, unencumbered by FISA warrants even if one of the parties was in the U.S.
While the Administration rightly believed this critical national-security tool was lawful, internal dissent soon limited the program’s scope; recall then-White House counsel Alberto Gonzales’s 2004 visit to Attorney General John Ashcroft’s hospital bed to keep the program running.
The New York Times exposed TSP’s existence in 2005, igniting the J. Edgar Cheney bonfire. By January 2007, TSP had been dissolved and Mr. Gonzales, then Attorney General, informed Congress that all surveillance “will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court.”
Inserting that special panel of federal appeals judges into the wartime chain of command was an unprecedented intrusion on executive powers. High-level Bush officials told us in summer 2007 that the new FISA procedures had reduced the effectiveness of the program by about two-thirds. In addition to excessive delays, the anonymous FISA judges demanded warrants even for foreign-to-foreign calls that were routed through U.S. switching networks. FISA was written in an analog era and meant to apply to domestic wiretaps in the context of the Cold War, not to limit what wiretaps were ever allowed.
Even so, the concession didn’t placate Democrats, and intelligence gathering became more constrained with each round of political combat. A six-month fix in 2007 and a four-year Congressional deal in 2008 modernized portions of the law, but at the cost of putting all overseas surveillance within a limited FISA perimeter.
The 2008 FISA law mandates “minimization” procedures to avoid targeting the communications of U.S. citizens or those that take place entirely within the U.S. As the NSA dragnet searches emails, mobile phone calls and the like, often it will pick up domestic information. Intelligence officials can analyze, retain and act on true smoking guns. But domestic intercepts must be effectively destroyed within 72 hours unless they indicate “a threat of death or serious bodily harm to any person” or constitute “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.”
This means that potentially useful information must be discarded if it is too vague to obtain a traditional judicial warrant. Minimization is the FISA equivalent of a fishing license that requires throwing back catches that don’t meet the legal limit. Yet the nature of intelligence analysis is connecting small, suggestive and often scattered clues.
U.S. wiretaps might have swept up information about Shahzad, given that he made 13 trips to Pakistan in seven years and ran with Tehrik-e Taliban Pakistan. What if the NSA intercepted a Waziristan Taliban talking about “our American brother Faisal,” which could have been cross-referenced against Karachi flight manifests? Or maybe Shahzad traded seemingly innocuous emails with Pakistani terrorists, and minimization precluded analysts from detecting a pattern.
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This is all speculative, but given that we might have had dozens of dead innocents in Times Square, Congress should ask some probing questions. The intelligence committees should follow up on Mr. Holder’s proposition: what the government knew about Shahzad, and when—and, more importantly, how it knew it. The larger question is whether FISA and its limitations are now undermining the government’s ability to identify and track terror networks, and thus its ability to anticipate and disrupt attacks.
In a letter at the end of 2008 that received too little media attention, New York City Police Commissioner Ray Kelly slammed FISA as “an unnecessarily protracted, risk-adverse process that is dominated by lawyers, not investigators and intelligence collectors.” The Bush Justice Department’s political timidity and deference to FISA judges, he wrote, meant that “the federal government is doing less than it is lawfully entitled to do to protect New York City, and the City is less safe as a result.”
Meanwhile, the FISA court reported in April that the number of warrant applications fell to 1,376 in 2009, the lowest level since 2003. A change in quantity doesn’t necessarily mean a change in intelligence quality—though it might. The Washington Post reported the same month that the NSA suspended the collection of some types of “metadata”—the destination of emails, calls made from a particular phone number, etc.—after the FISA court objected.
These constraints are being imposed at the same time that domestic terror plots linked to, or inspired by, foreigners are increasing. Our spooks did manage to pre-empt Najibullah Zazi and his co-conspirators in a plot to bomb New York subways, but they missed Shahzad and Nidal Hasan, as well as Umar Farouk Abdulmutallab’s attempt to bring down Flight 253 on Christmas Day.
Shahzad’s bomb didn’t explode, but we might not be so lucky next time. Surveillance and interrogation are our best antiterror tools, and a vital question is whether FISA is in practice giving jihadists a license to kill.
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