Rovner on the CIA and Afghanistan
Joshua Rovner has a thoughtful post up at The National Interest‘s The Skeptics today, and it reminded me to plug Josh’s book, and the event that we are hosting with him, Paul Pillar, and Mark Lowenthal on Monday, October 31st. It should be a terrific discussion. Details here.
Rovner’s blog post fits directly with the themes addressed in the book, but it also touches on something that I wrote about several months ago: would the appointment of David Petraeus as CIA Director subtly affect the agency’s assessment of progress—or lack thereof—in Afghanistan? Josh nicely summarizes the relevant concerns as Petraeus prepared to assume his new duties:
Petraeus was the public champion of the counterinsurgency doctrine that he claimed was necessary to defeat the Taliban and deliver stability to Afghanistan. How could he protect the objectivity of CIA analyses when he had such an obvious conflict of interest? Would he faithfully transmit analysts’ conclusions to policymakers, even if they implicitly criticized his approach to the war?
Petraeus addressed these concerns during his Senate confirmation hearings in June. “My goal has always been to ‘speak truth to power,’” he said, “and I will strive to do that as Director of the CIA.”
Rovner then explains what happened next, beginning last Thursday with Kim Dozier’s story for the AP that described a change in CIA analysis of Afghanistan that incorporated more information from military commanders on the ground. Citing a senior intelligence official, the story explained that ”Critics of the change say allowing the military more pushback will have a chilling effect on the analysts’ ability to give the war a failing grade.” Another “intelligence official expressed concern that this would institutionalize the former general’s habit when in Afghanistan of challenging the CIA’s unflattering conclusions.”
CIA officials denounced the report the following day, and Petraeus responded with a memorandum to all CIA employees on the AP story which, he said, “presents an inaccurate picture of my thoughts on the CIA’s Afghanistan analysis.” The change was made before Petraeus assumed duties as director, the memo explains, and it “will in no way undermine the objectivity of DI analysis on the war in Afghanistan. We will still ‘call it like we see it,’ but now with even better ground truth.”
The original story, and the CIA and Petraeus’s responses to it, have an air of “he said, she said” about them. Perhaps this was an honest attempt to improve the quality of intelligence from Afghanistan? Perhaps it was intended to shape the outcome in a more positive direction? Who knows? Rovner hones in on the essential question:
Take Petraeus at his word, accept his promises that he will not let vested interests affect his management decisions, and assume that the shift in the assessment process is not an attempt to manipulate intelligence. Is it still a good idea?
There is obvious value in incorporating military views into intelligence products. Field commanders can offer uniquely detailed views on the nature of the conflict. Continued fighting allows them to monitor enemy tactics as well as changes in the enemy’s level of effort. Their interaction with civilians also allows them to gauge public sentiment, at least at the local level. Done well, military assessments can paint a vivid portrait of the overall course of the war.
But assessments are not always done well. One reason is that they are inherently narrow. This is not to criticize: troops operating in a small area inevitably see the war through a soda straw. Nonetheless, they might conclude that trends in their own area are representative of larger trends throughout the country. Avoiding this problem requires methodical efforts to aggregate micro-level military perspectives into macro-level analyses while remaining cognizant of the serious analytical dangers involved.
Rovner concludes:
Accurate and timely intelligence will be critical as the Obama administration reconsiders what kinds of political outcomes are possible with a stripped-down force in Afghanistan. Integrating military views might lead to more comprehensive CIA assessments, but it might lead to more confusion if bad metrics are included for the sake of keeping estimates current. Hopefully the dust-up over the AP report will remind CIA officials to remain on guard against politicization, and to make sure that the changes in the assessment process do not lead to false optimism.
Cillizza on Cain and Know-Nothing Foreign Policy
Asked on Meet the Press this weekend whether the alleged Iranian plot to assassinate the Saudi ambassador was an act of war, Herman Cain gave the following response:
After I looked at all of the information provided by the intelligence community, the military, then I could make that decision. I can’t make that decision because I’m not privy to all of that information… I’m not going to say it was an act of war based upon news reports, with all due respect. I would hope that the president and all of his advisers are considering all of the factors in determining just how much, how much the Iranians participated in this.
That struck me as a refreshingly reasonable position. Yet the Washington Post‘s election handicapper, Chris Cillizza, decided to make that quote the centerpiece of an article on Cain’s “know-nothing foreign policy.” He then presents a poll showing that Republicans don’t care much about foreign policy this year, only to conclude that foreign-policy ignorance could be a fatal handicap for Cain. His evidence for that conclusion is a quote from Max Boot of the Council on Foreign Relations, who specializes in arguing for wars and imperialism. Boot, as it happens, just wrote a blog post for Commentary titled, “Iran Plot Goes Straight to the Top,” where he attacks those willing to question the evidence against Iran’s leaders and vaguely supports attacking them.
Cillizza’s article makes clear that foreign-policy ignorance is far preferable to the Washington Post‘s idea of expertise. The worst part is that Cain, who claims not to know what neoconservatives are, seems likely to become one, call Boot for advice, and win the Post‘s respect.
What Not to Learn from bin Laden’s Killing
The tendency to treat Osama bin Laden’s killing as national holiday akin to V-E day is both understandable and unfortunate. Everyone with a sense of justice appreciates the death of mass murderers, particularly the terrorist sort. But celebrating as if we killed Hitler or won a war plays into al Qaeda’s self-serving myth. Paul Pillar put it well:
An unfortunate irony of the huge reaction to the killing of Bin Ladin is that it continues to give him in death what he worked so hard to achieve in life: the status of arch foe of the most powerful nation on earth. It is a status that conforms with Bin Ladin’s narrative of himself as the leader of the Muslim world, protecting that world against the predations of the Judeo-Christian West, the leader of which is the United States.
We should also avoid drawing sweeping conclusions about our counterterrorism policies from Osama bin Laden’s death. We typically overgeneralize about important events. After the September 11 attacks, for example, even defense analysts tended to interpret al Qaeda’s capability largely through the purview of that plot, rather than treating it as a particularly important data point in al Qaeda’s history. The myopic take made al Qaeda seem far more capable than it was. With that in mind, here are several things that bin Laden’s death either cannot tell us much about or will not tell us much about until more information surfaces.
1. The war in Afghanistan. There are many reasons we should draw down in Afghanistan, but the bin Laden raid offers little intellectual ammunition for either side of the war debate. The intelligence that led to Abbottabad came years ago, from prisoners outside Afghanistan and operations in Pakistan. The helicopters flew from a base in Afghanistan, but it didn’t take a decade of war and a massive ground force to get that. The fact that bin Laden was living in an area of Pakistan where the state was relatively strong does nothing to support the idea that we should fight wars trying to build authority in ungoverned regions lest terrorists gain haven there.
But the fact that Sunday’s events do not serve pro-war arguments does not show logically, the correctness of the anti-war position, which is mine. The pro-war argument, flawed as it is, depends on other claims (i.e. terrorists will gain haven in Afghanistan if we draw down) that bin Laden’s death does not affect. That something is not an orange does little to tell you whether it’s a pear. Hopefully, however, bin Laden’s death may make it easier, politically to get out of Afghanistan.
How Many 215 Orders?
There was an interesting exchange during a Senate Intelligence Committee hearing yesterday concerning the use of the Patriot Act’s §215 orders for business records and other tangible things. FBI Director Robert Mueller hinted that the orders may have been used to track purchases of hydrogen peroxide purchases in the investigation of aspiring bomber Najibullah Zazi, while Sen. Ron Wyden (D-Oreg.) asserted that there is “a huge gap today between how you all are interpreting the PATRIOT Act and what the American people think the PATRIOT Act is all about and it’s going to need to be resolved.”
Let’s leave our curiosity about that by the wayside for the moment, though. I’m curious about one simple empirical claim Mueller made in his testimony: That the provision has been used over 380 times since 2001. I assume he’d know, but that seems inconsistent with what’s been publicly reported to date. It’s worth noting that there are actually minor discrepancies between the numbers provided in Congressional Research Service reports, audits from the Office of the Inspector General, and the Justice Department’s annual reports to Congress. But there are plenty of legitimate reasons these numbers might vary depending on how you count, and the total variance is a difference of about 17 orders total over the years.
We know from those Inspector General reports that the majority of those 215 orders issued were “combination” orders issued in tandem with another type of surveillance order called a “pen register” so that investigators could get subscriber information about the people whose communications patterns they were tracking. When Congress amended the Patriot Act in 2006, it built that authority right into the pen register statute, making it unnecessary to seek those “combination” orders. Prior to the amendment, the government got 173 of those “combination” orders. “Pure” 215 orders, which are now the only type needed, have been used much more sparingly. None were issued at all until 2004, and from 2004 through 2009 (depending on whose tally you want to use) there were between 75 and 92 orders issued (for an average of 12–15 annually since 2004). Throw in the combination orders and the upper-bound number through the end of 2009 is 265 orders.
A Patriot Update
A few developments from a business meeting of the Senate Judiciary Committee held this morning. As I noted last month the new House Intelligence Chair, Rep. Mike Rogers (R-Mich.) has already introduced another one-year straight renewal without modification. Since then, Sen. Pat Leahy (D-Vt.) has introduced a bill that would renew the expiring Patriot Act surveillance provisions through 2013, but with some very basic additional safeguards and oversight requirements—many of which the Justice Department has already agreed to implement voluntarily—including most crucially added constraints and a new sunset for expanded National Security Letter powers, which have already been held at least partly unconstitutional in their current form by federal courts, and which the government’s own watchdogs have already found to be subject to widespread abuse.
Enter Sen. Dianne Feinstein (D-Calif.), chair of the Senate Intelligence Committee, who played a key role in killing the same mild reforms last year. She’s already introduced legislation of her own, which would provide for an extension through the end of 2013, without any modifications, of not only the provisions set to expire this year, but also the highly troubling FISA Amendments Act, which in effect legalized the Bush administration’s illicit programmatic wiretapping with an added sliver of judicial oversight. Even this was not quite enough for Sen. Chuck Grassley (R-Iowa), who announced he would introduce a bill making the expiring provisions permanent—effectively removing an important impetus to continuing oversight.
Feinstein, interestingly, purported to be theoretically supportive of Leahy’s reformist impulses, but argued that the “time crunch” created by the end-of-February sunset deadline makes this the wrong time to consider reforms. (In order to hurry things up, a Hill contact tells me, Feinstein’s bill will be fast-tracked to the floor under Senate Rule 14, circumventing the committee process.) This really makes very little sense. Leahy’s bill is essentially the same proposal reported out favorably by a bipartisan Judiciary Committee majority; the point of doing a one-year reauthorization in 2010 was supposedly to allow Congress to consider reform alternatives in the interim. Moreover, the Justice Department has already effectively agreed to accept the reforms that bill contains. If there’s nevertheless a need for further deliberation, Congress can do exactly what it did last time around and extend the sunset by a few weeks or months to allow for additional debate.
The time constraints here are wholly of Congress’ own making. And while the Leahy bill doesn’t go far enough by any means, there is just no good excuse to delay at least the beginning of needed reforms any further.
Collecting Dots and Connecting Dots
As Jeff Stein notes over at the Washington Post, the declassified summary of the Senate Intelligence Committee’s report on the Christmas underpants bomber ought to sound awfully familiar to anyone who thumbed through the 9/11 Commission’s massive analysis of intelligence failures. Of the 14 points of failure identified by the Senate, one pertains to a failure of surveillance acquisition: the understandably vague claim that NSA “did not pursue potential collection opportunities,” which it’s impossible to really evaluate without more information. (Marc Ambinder tries to fill in some of the gaps at The Atlantic.) The other 13 echo that old refrain: Lots of data points, nobody managing to connect them. Problems included myopic analysis—folks looking at Yemen focused on regionally-directed threats—sluggish information dissemination, misconfigured computers, and simple failure to act on information already in hand.
Yet you’ll notice that in the wake of such failures, the political response tends to be heavily weighted toward finding ways to collect more dots. We hear calls for more surveillance cameras in our cities, more wiretapping with fewer restrictions, fancier scanners in the airport, fewer due process protections for captured suspects. Sometimes you’ll also see efforts to address the actual causes of intelligence failure, but they certainly don’t get the bulk of the attention. And little wonder! Structural problems internal to intelligence or law enforcement agencies, or failures of coordination between them, are a dry, wonky, and often secret business. The solutions are complicated, distinctly unsexy, and (crucially) don’t usually lend themselves to direct legislative amelioration—especially when Congress has already rolled out the big new coordinating entities that were supposed to solve these problems last time around.
But demands for more power and more collection and more visible gee-whiz technology? Well, those are simple. Those are things you can trumpet in a 700-word op-ed and brag about in press releases to your constituents. Those are things pundits and anchors can debate in without intimate knowledge of Miroesque DOJ org charts. In short, we end up talking about the things that are easy to talk about. We should not be under any illusions that this makes them good solutions to intel’s real problems. Hard as it is for pundits to sit silent or legislators to seem idle, sometimes the most vital reforms just don’t make for snazzy headlines.
The Wall Street Journal’s Surveillance Fantasies
There are too few periodical venues for good short fiction these days, so I’d normally be enthusiastic about the Wall Street Journal‘s decision to print works of fantasy. Unfortunately, they’ve opted to do so on their editorial page—starting with a long farrago of hypotheticals concerning the putative role of the Foreign Intelligence Surveillance Court in hindering the detection and apprehension of failed Times Square bomber Faisal Shahzad. In fairness to the editors, they acknowledge near the end of the piece that much of it is unvarnished speculation, but their flights of creative fancy extend to many claims presented as fact.
Let’s begin with the acknowledged fiction. The Journal editors wonder whether Shahzad might have been under surveillance before his botched Times Square attack, and posit that the NSA might have intercepted communications from “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.” Anything is possible. But it’s a leap to make this inference merely because investigators appear to have had fairly specific knowledge about his contacts with terrorists after he had already been identified. They would not have needed to “retroactively to reconstruct his activities from other already-gathered foreign wiretaps:” Once they had zeroed in on Shahzad, his calling patterns could have been reconstructed from phone company calling records whether or not he or his confederates were being targeted at the time the communications occurred, and indeed, those records could have been obtained by means of a National Security Letter without any oversight from the FISA Court.
‘The Dumbest Terrorist In the World’?
Businessweek has a story quoting a former federal prosecutor in Brooklyn, Michael Wildes, speculating that Faisal Shahzad, the would-be Times Square bomber, made so many mistakes (leaving his house keys in the car, not knowing about the vehicle identification number, making calls from his cellphone, getting filmed, buying the car himself) that he may be the “dumbest terrorist in the world.” But Wildes can’t accept the idea that an al Qaeda type terrorist would be so incompetent and suggests that Shahzad was “purposefully hapless” to generate intelligence about the police reaction for the edification of his buddies back in Pakistan.
Give me a break. This incompetence is hardly unprecedented. Three years ago Bruce Schneier wrote an article titled “Portrait of the Modern Terrorist as an Idiot,” describing the incompetence of several would-be al Qaeda plots in the United States and castigating commentators for clinging to image of these guys as Bond-style villains that rarely err. It’s been six or seven years since people, including me, started pointing out that al Qaeda was wildly overrated. Back then, most people used to say that the reason al Qaeda hadn’t managed a major attack here since September 11 was because they were biding their time and wouldn’t settle for conventional bombings after that success. We are always explaining away our enemies’ failure.
The point here is not that all terrorists are incompetent — no one would call Mohammed Atta that — or that we have nothing to worry about. Even if all terrorists were amateurs like Shahzad, vulnerability to terrorism is inescapable. There are too many propane tanks, cars, and would-be terrorists to be perfectly safe from this sort of attack. The same goes for Fort Hood.
The point is that we are fortunate to have such weak enemies. We are told to expect nuclear weapons attacks, but we get faulty car bombs. We should acknowledge that our enemies, while vicious, are scattered and weak. If we paint them as the globe-trotting super-villains that they dream of being, we give them power to terrorize us that they otherwise lack. As I must have said a thousand times now, they are called terrorists for a reason. They kill as a means to frighten us into giving them something.
The Latest ‘Intelligence Gap’
Stop me if you think you’ve heard this one before. The Washington Post reports that the National Security Agency has halted domestic collection of some type of communications metadata—the details are predictably fuzzy, though I’ve got a guess—in order to allay the concerns of the secret FISA Court that the NSA’s activity might not be technically permissible under the Foreign Intelligence Surveillance Act. Naturally, there’s the requisite quote from the anonymous concerned intel official:
“This is a basic tool we used to have, and it’s now gone,” said one intelligence official familiar with the impasse. “Every day, every week that goes by, there’s just one more week of information that we’re not collecting. You sit there and say, ‘This is unbelievable that we have this gap.’”
I want to take claims like these with due gravity, but I can’t anymore. Because we’ve heard them again and again over the past decade, and they’ve proven to be bogus every time. We were told that the civil liberties restrictions built into pre-9/11 surveillance law kept the FBI from searching “20th hijacker” Zacarias Moussaoui’s laptop—but a bipartisan Senate panel found it wasn’t true. We were told limits on National Security Letters were FBI delaying agents seeking vital records in their investigations—but the delay turned out to have been manufactured by the FBI itself. Most recently, we were warned that the FISA Court had somehow imposed a requirement that a warrant be obtained in order to intercept purely foreign telephone calls that were traveling through U.S. wires. Anyone who understood the FISA law realized that this couldn’t possibly be right—and as Justice Department officials finally admitted under pressure, that wasn’t true either. But this time there’s a really real for serious “intelligence gap” and we’ll all be blown up by scary terrorists any minute if it’s not fixed? Pull the other one.
That said, Republicans are claiming the problem requires a mere “technical fix” to FISA, so we should at least be able to get a rough sense of what the issue is, if Congress actually decides to act. Democrats, by contrast, appear to think NSA can “address the court’s concerns without resorting to legislation.” The word “resort” here seems depressingly apt: They’ll ask for a legislative tweak if there’s absolutely no way to shoehorn what they want to do into the statute through clever lawyering in an ex parte proceeding in front of a highly deferential court, but it’s a last resort.
As for what the problem might be, I can think of a couple of possibilities off the top of my head. A few years back, the FISA pen register provision was amended to effectively build into the legal order for a standard pen register, which records data about calls or e-mails made and received, language mirroring a legal demand for subscriber records known as a 2703(d) order in the criminal context. Law enforcement routinely uses that combination of a 2703(d) plus a pen register to get location tracking information for cell phones. But the evidentiary standard for getting a 2703(d) order is (very) slightly higher than the standard for a pen register alone, and federal law prohibits the use of a pen register alone to gather location data. So there might be a question about whether FISA pen registers alone can be used for cell phone location tracking purposes.
Alternatively, given that Internet communications aren’t just “metadata” and “content” but rather a whole series of layers containing different types of information, there could be a question about just how far down “metadata” goes. This might be especially tricky for protocols where quite a lot of information about the content of the communication—which is supposed to require a full probable cause warrant—can be gleaned from sophisticated analysis of the size and timing of packets in the stream.
These are, of course, blind guesses. What’s disturbing is how much blind guessing the FISA court itself may be doing. The new hiatus, the Post tells us via an anonymous source, came about when the FISA Court “got a little bit more of an understanding”of what the NSA was up to. Their enhanced understanding concerns data that NSA has been getting with the court’s approval for “several years,” according to the Post. And there you have the real “intelligence gap” in modern surveillance: We have a Court going through a pantomime of oversight over thousands of highly technologically sophisticated interception programs, but it may take a few years for them to really understand what they’ve been signing off on.
We’ll understand still less about the rationale for any “technical fix” to FISA that Congress might approve, if they deign to go that route. But we’ll be reassured that it’s very important, necessary to keep us safe from the terrorist hordes, and nothing worth bothering our pretty heads about.
A Response to Intel Abuses at Last?
As I explain in yesterday’s BloggingHeads dialogue with Eli Lake, I’m chary of relying too much on legislative “sunset” provisions to check abuse of power, especially in the shadowy world of intelligence. (For the fleshed-out version of the argument, see Chris Mooney’s 2004 piece in Legal Affairs.) After all, in January, the Office of the Inspector General had released an absolutely damning report showing that for years, FBI agents systematically manipulated their incredibly broad National Security Letter authorities to get information about Americans telephone usage without following any legitimate legal process at all. To cover those abuses, officials compounded their crimes by lying to federal courts and refusing to use an auditable computer system for their information requests. The report was released amid debate over what reforms should be included in the reauthorization of several controversial Patriot Act provisions, with proposed changes to the NSL statutes front and center—not least because several courts had found constitutional problems with the gag orders accompanying NSLs. Yet just a month later, Congress consented to an extension of those Patriot provisions without implementing any of the various rather mild changes that had won approval in the House or Senate Judiciary Committees. If a sunset-inspired review didn’t yield any real consequences then, I thought, what would it take?
Today, however, I see a there are glimmers of interest in something more closely resembling serious oversight. In a letter to Attorney General Eric Holder, sent last month but released yesterday, Senate Judiciary Committee Chair Patrick Leahy (D-VT) urges DOJ to implement many of the reforms in the SJC’s bill voluntarily—above all procedures to guarantee a detailed record of the grounds on which various types of information sought, and to govern the retention, use, and distribution of information obtained. Leahy also signals his intent to ask department watchdogs to conduct audits of the use of Patriot authorities, as the Senate’s bill had stipulated. These are all, needless to say, good ideas—provided we don’t accept voluntary and mutable internal guidelines as a substitute for statutory limits with teeth.
Meanwhile, Rep. Jerry Nadler (D-NY) is holding Wednesday morning hearings on the abuses detailed in the Inspector General’s report. FBI General Counsel Valerie Caproni and IG Glenn Fine are slated to testify. (There are links to their prepared testimony already, though the documents themselves aren’t there yet as I write.) Extrapolating from past performances, I predict Caproni will allow that the abuses described were Very Serious Indeed (though, really, perhaps not quite as serious as all that…) but all cleaned up now. Nobody should be satisfied with this, and if Fine doesn’t broach the subject himself, somebody really ought to ask Caproni about some minimization procedures for the 25,000–50,000 National Security Letters the department issues annually. As Fine noted in recent testimony, the Bureau has been promising this for years now:
In August 2007, the NSL Working Group sent the Attorney General its report and proposed minimization procedures. However, we had several concerns with the findings and recommendations of the Working Group’s report, which we discussed in our March 2008 NSL report. In particular, we disagreed with the Working Group about the sufficiency of existing privacy safeguards and measures for minimizing the retention of NSL-derived information. We disagreed because the controls the Working Group cited as providing safeguards predated our NSL reviews, yet we found serious abuses of the NSL authorities.
As a result, the Acting Privacy Officer decided to reconsider the recommendations and withdrew them. The Working Group has subsequently developed new recommendations for NSL minimization procedures, which are still being considered within the Department and have not yet been issued. We believe that the Department should promptly consider the Working Group’s proposal and issue final minimization procedures for NSLs that address the collection of information through NSLs, how the FBI can upload NSL information in FBI databases, the dissemination of NSL information, the appropriate tagging and tracking of NSL derived information in FBI databases and files, and the time period for retention of NSL obtained information. At this point, more than 2 years have elapsed since after our first report was issued, and final guidance is needed and overdue.
Way, way overdue—much like some kind of serious congressional response to the Bureau’s NSL Calvinball.
Strategic Terrorist Interrogation
The cover story of this month’s National Interest focuses on different approaches to terrorist interrogation. Matthew Alexander, former senior military interrogator and author of How to Break a Terrorist: The U.S. Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq, profiles Colonel Tito Karnavian, the chief of intelligence for Detachment 88, Indonesia’s premier counterterrorist force. Karnavian’s approach to interrogation is strategic, as opposed to the tactical scenarios that dominate the debate in America.
The goal of the interrogators is not intelligence information that can prevent future terrorist attacks, but the conversion of the extremists into advocates against violent jihad. Interrogators have, de facto, become the primary facilitators of rehabilitation. In this manner, Karnavian has turned a tactical weapon into strategic leverage, and the results speak for themselves.
Following the implementation of Karnavian’s interrogation strategy, Indonesia did not have a terrorist bombing for almost the entire three years between 2006 and 2009, no doubt chalked up to the cooperation of numerous imprisoned extremists. Two former senior JI members captured by Detachment 88 have since written books admitting their erroneous violent beliefs. One book was a national best seller in Indonesia. In comparison, U.S. interrogation strategy, although improved since the revelations of torture and abuse at Abu Ghraib in 2005, is in the Stone Age.
State Secrets, Courts, and NSA’s Illegal Wiretapping
As Tim Lynch notes, Judge Vaughn Walker has ruled in favor of the now-defunct Al-Haramain Islamic Foundation—unique among the many litigants who have tried to challenge the Bush-era program of warrantless wiretapping by the National Security Agency because they actually had evidence, in the form of a document accidentally delivered to foundation lawyers by the government itself, that their personnel had been targeted for eavesdropping.
Other efforts to get a court to review the program’s legality had been caught in a kind of catch-22: Plaintiffs who merely feared that their calls might be subject to NSA filtering and interception lacked standing to sue, because they couldn’t show a specific, concrete injury resulting from the program.
But, of course, information about exactly who has been wiretapped is a closely guarded state secret. So closely guarded, in fact, that the Justice Department was able to force the return of the document that exposed the wiretapping of Al-Haramain, and then get it barred from the court’s consideration as a “secret” even after it had been disclosed. (Contrast, incidentally, the Supreme Court’s jurisprudence on individual privacy rights, which often denies any legitimate expectation of privacy in information once revealed to a third party.) Al-Haramain finally prevailed because they were ultimately able to assemble evidence from the public record showing they’d been wiretapped, and the government declined to produce anything resembling a warrant for that surveillance.
If you read over the actual opinion, however it may seem a little anticlimactic—as though something is missing. The ruling concludes that there’s prima facie evidence that Al-Haramain and their lawyers were wiretapped, that the government has failed to produce a warrant, and that this violates the Foreign Intelligence Surveillance Act. But of course, there was never any question about that. Not even the most strident apologists for the NSA program denied that it contravened FISA; rather, they offered a series of rationalizations for why the president was entitled to disregard a federal statute.
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