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DOJ’s New “Transparency” on the Dragnet: Admitting Their “Physical Search” Was the “Dragnet”

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DOJ has been boasting to the press for weeks that it will give Jamshid Muhtorov (though they didn’t name him) notice that they used NSA spook authorities to catch him in his alleged support for Uzbekistan’s Islamic Jihad Union. Now that they have released his name, there are a lot of reasons to be cynical about that: the possibility they’ll try to implicate Human Rights Watch, the possibility they’ll tie him to Najibullah Zazi (like Muhtorov) living in Aurora, CO, the apparent fact that they have no other evidence against him except intercepts.

But here’s what this notice constitutes. Here’s the notice they filed in February 2012.

Comes now the United States of America, by John F. Walsh, United States Attorney, and Gregory Holloway, Assistant United States Attorney, both for the District of Colorado and Jason Kellhofer and Erin Creegan, Trial Attorneys United States Department of Justice, National Security Division, Counterterrorism Section, and hereby provides notice to this Court and the defendant, Jamshid Muhtorov that pursuant to Title 50, United States Code, Sections 1806(c) and 1825(d), the government intends to offer into evidence or otherwise use or disclose in any proceedings in the above-captioned matter, information obtained and derived from electronic surveillance and physical search conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. §§ 1801-1811, 1821-1829.

And here’s the notice they filed today, in their big bid for transparency.

Comes now the United States of America, by John Walsh, United States Attorney, and Gregory Holloway, Assistant United States Attorney, both for the District of Colorado and Erin Creegan, Trial Attorney United States Department of Justice, National Security Division, Counterterrorism Section, and hereby provides notice to this Court and the defense, pursuant to 50 U.S.C. ” 1806(c) and 1881e(a), that the government intends to offer into evidence or otherwise use or disclose in proceedings in the above-captioned matter information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. ‘ 1881a. Dated this 25th day of October, 2013.

That is, their idea of “transparency” is to notice 50 USC 1881a, which is Section 702 of FAA (wiretapping based off a foreign target), instead of 50 USC 1825(d) which is physical search. (See here and here for just two of the instances where I note they’re calling dragnet searches physical ones.)

That’s it. For years, they’ve been telling defendants they were subjects of a physical search, when in fact they were subjects of a dragnet.

And this is their gleeful new exhibit of transparency.

On the 12th Day of Christmas, the NSA Gave to Me … 12 “Terrorism Supporters”

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Dianne Feinstein is writing op-eds again. Of course, I’m not actually recommending you read her defense of the phone dragnet program — though I do recommend this rebuttal of her claims from ACLU’s Mike German.

In other words, the problem was not that the government lacked the right tools to do its job (it had ample authority to trace Mihdhar’s calls). The problem was that the government apparently failed to use them.

But I do want to look at how DiFi dances around the debunked claims about all the plots the dragnet have stopped.

Since its inception, this program has played a role in stopping roughly a dozen terror plots and identifying terrorism supporters in the U.S.

Her claim is grammatically false, of course. Of the 2 known of these 12 cases where Section 215 was useful, with just one — when it was used to identify an unknown phone of one already identified accomplice of Najibullah Zazi — was a plot actually stopped. In the other, all Section 215 did was identify a supporter of terrorism, Basaaly Moalin. And even there, the FBI itself believed Moalin sent money to al-Shabaab not so much to support terrorism, but to support expelling (US backed) Ethiopian invaders of Somalia.

So while she could say that on 12 occasions Section 215 has helped stop a plot or identified terrorism supporters, what she has said is — surprise surprise! — a lie.

But I am rather amused at how close DiFi gets to arguing a dragnet of every Americans’ phone based relationships is worthwhile because it has found 12 guys who support, but do not engage in, terrorism.

The Scandal of Lying about “Thwarted” “Plots” Started 4 Years Ago

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As predicted, one big takeaway from yesterday’s NSA hearing (the other being the obviously partial disclosure about location tracking) is Keith Alexander’s admission that rather than 54 “plots” “thwarted” in the US thanks to the dragnet, only one or maybe two were. Here are some examples.

But they’re missing this real scandal about the government’s lies about the central importance of Section 215.

That scandal started 4 years ago, when an example the FBI now admits had limited import played a critical role in the reauthorization of Section 215 without limits on the dragnet authority.

First, note that even while Leahy got Alexander to back off his “54 plots” claim, the General still tried to insist Section 215 had been critical in two plots, not just one.

SEN. LEAHY: Let’s go into that discussion, because both of you have raised concerns that the media reports about the government surveillance programs have been incomplete, inaccurate, misleading or some combination of that. But I’m worried that we’re still getting inaccurate and incomplete statements from the administration.

For example, we have heard over and over again the assertion that 54 terrorist plots were thwarted by the use of Section 215 and/or Section 702 authorities. That’s plainly wrong, but we still get it in letters to members of Congress; we get it in statements. These weren’t all plots, and they weren’t all thwarted. The American people are getting left with an inaccurate impression of the effectiveness of NSA programs.

Would you agree that the 54 cases that keep getting cited by the administration were not all plots, and out of the 54, only 13 had some nexus to the U.S. Would you agree with that, yes or no?

DIR. ALEXANDER: Yes.

SEN. LEAHY: OK. In our last hearing, Deputy Director Inglis’ testimony stated that there’s only really one example of a case where, but for the use of Section 215, bulk phone records collection, terrorist activity was stopped. Is Mr. Inglis right?

DIR. ALEXANDER: He’s right. I believe he said two, Chairman; I may have that wrong, but I think he said two, and I would like to point out that it could only have applied in 13 cases because of the 54 terrorist plots or events, only 13 occurred in the U.S. Business Record FISA was only used in (12 of them ?).

SEN. LEAHY: I understand that, but what I worry about is that some of these statements that all is — all is well, and we have these overstatements of what’s going on — we’re talking about massive, massive, massive collection. We’re told we have to do that to protect us, and then statistics are rolled out that are not accurate. It doesn’t help with the credibility here in the Congress; doesn’t help with the credibility with us, Chairman, and it doesn’t help with the credibility with the — with the country. [my emphasis]

Here’s the transcript at I Con the Record from the previous hearing, where Inglis in fact testified that Section 215 was only critical in the Basaaly Moalin case (which was not a plot against the US but rather funding to defeat a US backed invasion of Somalia).

MR. INGLIS: There is an example amongst those 13 that comes close to a but-for example and that’s the case of Basaaly Moalin.

 

That is, in fact, Inglis said it had been critical in just one “plot.”

After he did, FBI Deputy Director Sean Joyce piped in to note the phone dragnet also “played a role” by identifying a new phone number of a suspect we already knew about in the Najibullah Zazi case.

MR. JOYCE: I just want to relate to the homeland plots. So in Najibullah Zazi and the plot to bomb the New York subway system, Business Record 215 played a role; it identified specifically a number we did not previously know of a —

SEN. LEAHY: It was a — it was a critical role?

MR. JOYCE: What I’m saying — what it plays a —

SEN. LEAHY: (And was there ?) some undercover work that was — took place in there?

MR. JOYCE: Yes, there was some undercover work.

SEN. LEAHY: Yeah —

MR. JOYCE: What I’m saying is each tool plays a different role, Mr. Chairman. I’m not saying that it is the most important tool —

SEN. LEAHY: Wasn’t the FBI — wasn’t the FBI already aware of the individual in contact with Zazi?

MR. JOYCE: Yes, we were, but we were not aware of that specific telephone number, which NSA provided us. [my emphasis]

So, when pressed, Joyce admitted that Section 215 wasn’t critical to finding Adis Medunjanin, one of Zazi’s conspirators. (And if you read Matt Apuzzo and Adam Goldman’s Enemies Within, you see just how minor a role it played.)

That’s important, because the Administration’s use of Section 215 in the Zazi case was crucially important to the defeat of two efforts to rein in the dragnet in 2009.

Read more →

Oh, So THAT’S Why the Government Is So Insistent Section 215 Had a Role in the Zazi Case?

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There’s a remarkable passage in the Primary Order for the Section 215 dragnet that Judge Reggie Walton signed on September 3, 2009.

In addition, the Custodian of Records of [redacted] shall produce to NSA upon service of the appropriate Secondary Order an electronic copy of the same tangible things created by [redacted] for the period from 5:11 p.m. on July 9, 2009 to the date of this Order, to the extent those records still exist.

In an order authorizing the prospective collection of phone records until October 30, 2009, Walton also authorizes the retroactive collection of phone records generated between July 9 and September 3, 2009, if the telecom(s) haven’t destroyed them yet.

This seems to suggest that in an Order on July 9 (which we don’t get, but which the government references in its August 19 submission) Walton halted the program.

Boom. 5:11, July 9. No more phone records, from at least one telecom.

We don’t know why he did so either. In his June 22 Order, he referenced a May 29 Order (another one we didn’t get), responding to NSA’s very delayed disclosures that unminimized results had been shared with NSA analysts unauthorized to receive them and that CIA, FBI, and NCTC had access to the dragnet databases.  He had assigned the government a new report, due on June 18. But in that, too, the government revealed new abuses (including one — described on page 4 — that may pertain to the Internet dragnet rather than the phone dragnet; recall that the NSA offered to “review” that program at the same time they did the phone dragnet). Walton issued new homework to the NSA, requiring the government to provide a weekly report of the dissemination that occurred, with the first due July 3 and therefore the second due July 10, the day after Walton appears to have stopped the collection.

In the government’s August submission, this line seems to indicate querying has been halted.

Based on these findings and actions, the Government anticipates that it will request in the Application seeking renewal of docket number BR 09-09 authority that NSA, including certain NSA analysts who obtain appropriate approval, be permitted to resume non-automated querying of the call detail records using selectors approved by NSA.

But it doesn’t seem to reflect that collection stopped. (Note, Walton’s June Order had a docket number of 09-06, whereas the August submission bears the docket number 09-09).

So while we can’t be sure, it appears the discoveries submitted to Walton in June 2009, as well as new ones in early July, may have led him to halt production of new phone records.

And that collection was turned back on on September 3, 2009. 3 days before the NSA intercepted Najibullah Zazi’s frantic emails to Pakistan trying to get help making TATP he planned to use in a September 11 attack on NYC’s subways.

According to Matt Apuzzo and Adam Goldman’s superb Enemies Within, after discovering Zazi’s emails, FBI had used travel records to find Zazi’s suspected accomplices, Zarein Ahmedzay and Adis Medunjanin.

But when the government tried to justify the dragnet earlier this year, they pointed to the fact that Medunjanin came up in the Section 215 collection as proof of the dragnet’s value, as in this July 17 House Judiciary Committee hearing where FBI National Security Division Executive Assistant Director Stephanie Douglas testified.

Additionally, NSA ran a phone number identifiable with Mr. Zazi against the information captured under 215. NSA queried the phone number and identified other Zazi associates. One of those numbers came back to Adis Medunjanin, an Islamic extremist located in Queens, New York.

The FBI was already aware of Mr. Medunjanin, but information derived from 215 assisted in defining his — Zazi’s network and provided corroborating information relative to Medunjanin’s connection to Zazi. Just a few weeks after the initial tip by NSA, both Zazi and Medunjanin were arrested with — along with another co-conspirator. They were charged with terrorist acts and a plot to blow up the New York City subway system.

As I noted 4 years ago, Dianne Feinstein immediately started using the Zazi investigation to successfully argue that Section 215 must retain its broad relevance standard, defeating an effort by Pat Leahy to require some tie to terrorism.

Now, it may be that the FBI also used Section 215 to collect records of 3 apparently innocent people buying beauty supplies. The government has neither explained what happened to these apparently innocent people or on what basis (it may have been the Section 215 dragnet) they claimed they were associates of Zazi.

But the public case that backs up DiFi’s claims that Section 215 dragnet was central to the Zazi investigation is now limited to the fact that the FBI used the dragnet to find a Zazi associate they already knew about.

Yet imagine! What if Reggie Walton’s stern action in response to the government’s blatantly violating dissemination rules on the dragnet prevented the FBI from finding Zazi’s associates (which wasn’t a problem, and would have been less of a problem if the NYPD hadn’t tipped of Zazi, but never mind)? What if Walton’s effort to rein in the government had prevented the FBI from thwarting an attack?

That, it seems to me, is the implicit threat. The government claims — in spite of all the evidence to the contrary — that Section 215 played a key role in thwarting one of the only real terrorist attacks since 9/11. And, I’d bet they warn in private, they might have been prevented from doing so because a pesky FISA judge halted the program because they hadn’t followed the most basic rules for it.

That, I’m guessing, is why they claim the Section 215 dragnet was central to the Zazi investigation. Not because it was. But because it raises the specter of a judge’s effort to make the government follow the law interfering with FBI’s work.

Also, the Nail Polish Remover Lobby Didn’t Challenge Section 215 Orders

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The takeaway from the FISC opinion released today from about 6 outlets seems to be that no telecom has ever challenged a Section 215 order.

But the opinion actually says more than that. It says,

To date, no holder of records who has received an Order to produce bulk telephony has challenged the legality of such an Order. Indeed, no recipient of any Section 215 Order has challenged the legality of such an Order, despite the explicit statutory mechanism for doing so.

Now, if your bullshit antennae aren’t buzzing when you read that formulation, “no holder of records,” then you need to have them checked. Because it sure seems to allow for the possibility that someone whose customers had their records seized via someone deemed the actual holder of them objected. That entity, after all, wouldn’t be a Section 215 Order recipient, and therefore would have no standing to object, regardless of the statutory mechanism for doing so. (Plus, both EPIC and ACLU have — and had, by the time this order was written — objected. But they don’t count because they’re the actual customers.)

But remember, as far as we know, Section 215 has not been used for Internet metadata (except for subscriber information for the first 2 years of the program; see Verizon’s CEO bitching about the email companies his company stole data from for years complaining publicly about the dragnet). The one other big “customer base” we know has been targeted by bulk-ish orders are hydrogen peroxide and nail polish remover (acetone) purchasers.

However, there, too, like Internet providers whose data gets sucked up at a telecom provider’s switch, the actual beauty supply companies are unlikely to be the “holder of records.” The beauty of the Third Party doctrine, for the government, is it can always look elsewhere for people who have “records” that betray customers’ interests.

If only we had a powerful nail polish remover lobby we might be able to combat the dragnet.

In These Times We Can’t Blindly Trust Government to Respect Freedom of Association

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One of my friends, who works in a strategic role at American Federation of Teachers, is Iranian-American. I asked him a few weeks ago whom he called in Iran; if I remember correctly (I’ve been asking a lot of Iranian-Americans whom they call in Iran) he said it was mostly his grandmother, who’s not a member of the Republican Guard or even close. Still, according to the statement that Dianne Feinstein had confirmed by NSA Director Keith Alexander, calls “related to Iran” are fair game for queries of the dragnet database of all Americans’ phone metadata.

Chances are slim that my friend’s calls to his grandmother are among the 300 identifiers the NSA queried last year, unless (as is possible) they monitored all calls to Iran. But nothing in the program seems to prohibit it, particularly given the government’s absurdly broad definitions of “related to” for issues of surveillance and its bizarre adoption of a terrorist program to surveil another nation-state. And if someone chose to query on my friend’s calls to his grandmother, using the two-degrees-of-separation query they have used in the past would give the government — not always the best friend of teachers unions — a pretty interesting picture of whom the AFT was partnering with and what it had planned.

In other words, nothing in the law or the known minimization rules of the Business Records provision would seem to protect some of the AFT’s organizational secrets just because they happen to employ someone whose grandmother is in Iran. That’s not the only obvious way labor discussions might come under scrutiny; Colombian human rights organizers with tangential ties to FARC is just one other one.

When I read labor organizer Louis Nayman’s “defense of PRISM,” it became clear he’s not aware of many details of the programs he defended. Just as an example, Nayman misstated this claim:

According to NSA officials, the surveillance in question has prevented at least 50 planned terror attacks against Americans, including bombings of the New York City subway system and the New York Stock Exchange. While such assertions from government officials are difficult to verify independently, the lack of attacks during the long stretch between 9/11 and the Boston Marathon bombings speaks for itself.

Keith Alexander didn’t say NSA’s use of Section 702 and Section 215 have thwarted 50 planned attacks against Americans; those 50 were in the US and overseas. He said only around 10 of those plots were in the United States. That works out to be less than 20% of the attacks thwarted in the US just between January 2009 and October 2012 (though these programs have existed for a much longer period of time, so the percentage must be even lower). And there are problems with three of the four cases publicly claimed by the government — from false positives and more important tips in the Najibullah Zazi case, missing details of the belated arrest of David Headley, to bogus claims that Khalid Ouazzan ever planned to attack NYSE. The sole story that has stood up to scrutiny is some guys who tried to send less than $10,000 to al-Shabaab.

While that doesn’t mean the NSA surveillance programs played no role, it does mean that the government’s assertions of efficacy (at least as it pertains to terrorism) have proven to be overblown.

Yet from that, Nayman concludes these programs have “been effective in keeping us safe” (given Nayman’s conflation of US and overseas, I wonder how families of the 166 Indians Headley had a hand in killing feel about that) and defends giving the government legal access (whether they’ve used it or not) to — among other things — metadata identifying the strategic partners of labor unions with little question.

And details about the success of the program are not the only statements made by top National Security officials that have proven inaccurate or overblown. That’s why Nayman would be far better off relying on Mark Udall and Ron Wyden as sources for whether or not the government can read US person emails without probable cause than misstating what HBO Director David Simon has said (Simon said that entirely domestic communications require probable cause, which is generally but not always true). And not just because the Senators are actually read into these programs. After the Senators noted that Keith Alexander had “portray[ed] protections for Americans’ privacy as being significantly stronger than they actually are” — specifically as it relates to what the government can do with US person communications collected “incidentally” to a target — Alexander withdrew his claims.

Nayman says, “As people who believe in government, we cannot simply assume that officials are abusing their lawfully granted responsibility and authority to defend our people from violence and harm.” I would respond that neither should we simply assume they’re not abusing their authority, particularly given evidence those officials have repeatedly misled us in the past.

Nayman then admits, “We should do all we can to assure proper oversight any time a surveillance program of any size and scope is launched.” But a big part of the problem with these programs is that the government has either not implemented or refused such oversight. Some holes in the oversight of the program are:

  • NSA has not said whether queries of the metadata dragnet database are electronically  recorded; both SWIFT and a similar phone metadata program queries have been either sometimes or always oral, making them impossible to audit
  • Read more →

Terrorist Hobgoblins Bite the Intelligence Community in Its Efficacy Ass

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I just finished watching the House Intelligence Committee hearing on the NSA programs revealed by Edward Snowden. I’ll have a lot more to say about the content of the revelations in the next few days. But first, a general observation.

Since the initial Snowden revelations, the Intelligence Community and other Administration surrogates have been trying to minimize our understanding of the scope of their surveillance and use traditional fearmongering to justify the programs by focusing on the importance of the Section 702 collection to stopping terrorism. While James Clapper’s office has made it clear that Section 702 goes beyond counterterrorism by revealing that its  successes include counterproliferation and cybersecurity successes, as well as counterterrorism ones, the focus has nevertheless been on TERROR TERROR TERROR.

Today’s hearing was really the culmination of that process, when Keith Alexander boasted up upwards of 50 terrorist plots — about 40 of which were overseas — that Section 702 has prevented.

Of the four plots the government has revealed — David Headley, Najibullah Zazi, as well as these two today…

Mr. Joyce described a plot to blow up the New York Stock Exchange by a Kansas City man, whom the agency was able to identify because he was in contact with “an extremist” in Yemen who was under surveillance. Mr. Joyce also talked about a San Diego man who planned to send financial support to a terrorist group in Somalia, and who was identified because the N.S.A. flagged his phone number as suspicious through its database of all domestic phone call logs, which was brought to light by Mr. Snowden’s disclosures.

… the government has either overblown the importance of these programs and their success or are fairly minor plots.

None of the four may be as uniquely worthwhile as the cyberattack described by Clapper’s office a week ago, which it has not, however, fleshed out.

Communications collected under Section 702 have provided significant and unique intelligence regarding potential cyber threats to the United States, including specific potential network computer attacks. This insight has led to successful efforts to mitigate these threats.

That is, the government might–might!–be able to make a far better case for the value of these programs in discussing their role in preventing cyberattacks rather than preventing terrorist plots.

And yet it hasn’t done so, even as it pushes one after another attempt to legislate internet access in the name of protecting Intellectual Property and critical infrastructure.

Given the increasing focus on cybersecurity — and the already dishonest claims people like Mike Rogers have made about the means to accomplish that focus — this is the discussion we need to be having, rather than digging up terror plots first developed in 2004 that never happened. But in the same way the government shied away from conducting an honest discussion with us in 2001 and again in 2006 about these programs, it is refusing to conduct an honest discussion about cybersecurity today.

And, ironically, that refusal is preventing them from describing the value of a program that surely contributes more to countering cyberattacks than terror attacks at this point.

The Inefficacy of Big Brother: Associations and the Terror Factory

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The WSJ has a fascinating story, responding to (but not linking) this post, trying to address the question of whether the NSA programs we’ve learned about are efficient.

But some statisticians and security experts have raised another objection: As a terror-fighting tool, it is highly inefficient and has some serious downsides.

Their reasoning: Any automated approach to spotting something rare necessarily produces false positives. That means for every correctly identified target, many more alarms that go off will prove to be incorrect. So if there are vastly more innocent people than would-be terrorists whose communications are monitored, even an extremely accurate test would ensnare many non-terrorists.

[snip]

Even if the NSA’s algorithm “is terribly clever and has a very high sensitivity and specificity, it cannot avoid having an immense false-positive rate,” said Peter F. Thall, a biostatistician at the University of Texas’ M.D. Anderson Cancer Center. In his arena, false positives mean patients may get tests or treatment they don’t need. For the NSA, false positives could mean innocent people are monitored, detained, find themselves on no-fly lists or are otherwise inconvenienced, and that the agency spends resources inefficiently.

Others, though, noted a key difference between terrorism and, say, a needle in a haystack: Terrorists tend to talk to each other in a way that needles don’t. So by analyzing a network of communications, the NSA could be ferreting out clues from more than just the messages’ particulars.

This question is, obviously, one of the reasons I posted on the 3 apparent false positives presented as implicitly terrorist associates of Najibullah Zazi in 2009. Because — assuming I’m right that they were false positives — it provides a glimpse into precisely how the government understood a lot of these terms in 2009 (I assume, though could be wrong, that their approach continues to be fine-tuned). As a reminder, here’s what we know about these 3 people:

Evidence that “individuals associated with Zazi purchased unusual quantities of hydrogen and acetone products in July, August, and September 2009 from three different beauty supply stores in and around Aurora;” these purchases include:

Person one: a one-gallon container of a product containing 20% hydrogen peroxide and an 8-oz bottle of acetone

Person two: an acetone product

Person three: 32-oz bottles of Ion Sensitive Scalp Developer three different times

For a variety of reasons, I believe the 3 false positives consist of one person (probably person two) with a genuine relationship with Zazi who purchase relatively little acetone, and 2 people with false relationships with Zazi who bought an unusual amount of beauty supplies.

That says the FBI made two mistakes, IMO. Assuming any purchase of a common product, acetone, was criminal on behalf of someone with a real tie to Zazi.

And assuming the relationships between the other two — the ones buying more beauty supplies — were meaningful. This could be, and I suspect it is, an assumption that anyone who belongs to the same mosque (and unlike the radical one he attended in NY, Zazi was reportedly not close to people at his mosque in CO).

Also note. This program (unlike ones I believe to exist at the National Counterterrorism Center) may not be algorithms per se at all. Rather, it could just be associations: If tie to Zazi and if beauty supply purchaser = “positive.” In other words, for better and worse the FBI may not be asking the computers to “think” for it at all.

Nevertheless, the assumptions — that membership in the same mosque  (or, for that matter, a single communication with a suspected terrorist) necessarily equates to a meaningful relationship — probably doom the approach in any case.

Which brings me to my other point. The WSJ suggests the costs of false positives include wasted investigative resources and unfair persecution for false positives.

But it doesn’t consider the other possible uses of what may or may not be considered false positives.

First, there’s the possibility an FBI investigation into a true false positive — someone totally innocent of terrorism — may discover some other criminal exposure, which the FBI could and has been known to use to turn the false positive into an informant.

Then there’s the likelihood, especially if a potentially false positive is a young Muslim male, that the FBI will keep that person under heavy surveillance and recruitment for years and ultimately turn him into a terrorism statistic. The FBI started surveilling Mohamed Osman Mohamud 3 years, starting before he turned 18, before they got him to attempt to bomb a public event. His parents even alerted the authorities to his increasing radicalism, but instead of intervening to reverse it, the FBI exacerbated it with several informants.

Would Mohamud have ever turned to terrorism without all that help from the FBI? Would he have developed the competence and acquired the resources to do harm? We can’t actually know, and I’m actually not aware that anyone has asked this question.

What we also can’t know is whether, had the FBI dedicated its efforts to something else, it could have prevented a crime developing without FBI’s help.

That is, there are a whole slew of questions that have to be asked as we assess this program. Which is why we need real transparency.

Dianne Feinstein: We Need to Collect Data on Every Single American Because We Can’t Control Our Informants

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I will have far, far more to say about the claims about the various surveillance programs aired on the Sunday shows today.

But this is absolutely batshit crazy.

FEINSTEIN: Well, of course, balance is a difficult thing to actually identify what it is, but I can tell you this: These programs are within the law. The [Section 215] business records section is reviewed by a federal judge every 90 days. It should be noted that the document that was released that was under seal, which reauthorized the program for another 90 days, came along with a second document that placed and discussed the strictures on the program. That document was not released.

So here’s what happens with that program. The program is essentially walled off within the NSA. There are limited numbers of people who have access to it. The only thing taken, as has been correctly expressed, is not content of a conversation, but the information that is generally on your telephone bill, which has been held not to be private personal property by the Supreme Court.

If there is strong suspicion that a terrorist outside of the country is trying to reach someone on the inside of the country, those numbers then can be obtained. If you want to collect content on the American, then a court order is issued.

So, the program has been used. Two cases have been declassified. One of them is the case of David Headley, who went to Mumbai, to the Taj hotel, and scoped it out for the terrorist attack. [my emphasis]

Dianne Feinstein says that one of the two plots where Section 215 prevented an attack was used (the other, about Najibullah Zazi, is equally batshit crazy, but I’ll return to that) is the Mumbai attack.

What’s she referring to is tracking our own informant, David Headley.

And it didn’t prevent any attack. The Mumbai attack was successful.

Our own informant. A successful attack. That’s her celebration of success 215’s use.

So her assertion is we need to collect metadata on every single American because DEA can’t keep control of its informants.

Update: Technically DiFi didn’t say this was a success, just that it had been used. I’ve edited the post accordingly.

Mike Rogers: As Confused about Telecom Surveillance as He Is about Drone Strikes

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Congressman Mike Rogers, like most members of the ranking Gang of Four members of the Intelligence Committees, has long made obviously false claims about the drone program, such as that public reports of civilian casualties (which were being misreported in intelligence reports) were overstated.

That’s just one of the many reasons I was dubious about this report, claiming that, well … it’s not entirely clear what it claimed. Here’s the lead two paragraphs:

A secret U.S. intelligence program to collect emails that is at the heart of an uproar over government surveillance helped foil an Islamist militant plot to bomb the New York City subway system in 2009, U.S. government sources said on Friday.

The sources said Representative Mike Rogers, chairman of the House of Representatives Intelligence Committee, was talking about a plot hatched by Najibullah Zazi, an Afghan-born U.S. resident, when he said on Thursday that such surveillance had helped thwart a significant terrorist plot in recent years.

These paragraphs suggest that we found Najibullah Zazi — pretty clearly the most successful effort to prevent a known terrorist attack since 9/11 — because of one of the programs the Guardian (and WaPo) broke over the last few days.

Some paragraphs down, the piece explains the program in question was the “one that collected email data on foreign intelligence suspects.” Which is weird, because we’ve learned about a program to collect email data on everyone in the United States, not “foreign intelligence suspects.” And a program to collect a range of telecom content on known foreign intelligence suspects and their associates. Already, Reuters’ sources seemed confused.

The next paragraph describes the PRISM program by name.

The Washington Post and Britain’s Guardian newspaper on Thursday published top-secret information from inside NSA that described how the agency gathered masses of email data from prominent Internet firms, including Google, Facebook and Apple under the PRISM program.

And the rest of the report traces what former Agent and now FBI mouthpiece CBS pundit John Miller had to say.

All of that might lead you to believe this is a story reporting that we had foiled Zazi’s plot using PRISM, the program that involves the NSA accessing bulk data on everything these foreign targets were doing. But even that is problematic, since Zazi is a US person, whose communications are supposedly excluded from this program.

Then there are the problems with the actual content of this.

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