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.
Every Time I Say “Terrorism,” the Patriot Act Gets More Awesome
Can I send Time magazine the bill for the new crack in my desk and the splinters in my forehead? Because their latest excretion on the case of Colleen “Jihad Jane” LaRose and its relation to Patriot Act surveillance powers is absolutely maddening:
The Justice Department won’t say whether provisions of the Patriot Act were used to investigate and charge Colleen LaRose. But the FBI and U.S. prosecutors who charged the 46-year-old woman from Pennsburg, Pa., on Tuesday with conspiring with terrorists and pledging to commit murder in the name of jihad could well have used the Patriot Act’s fast access to her cell-phone records, hotel bills and rental-car contracts as they tracked her movements and contacts last year. But even if the law’s provisions weren’t directly used against her, the arrest of the woman who allegedly used the moniker “Jihad Jane” is a boost for the Patriot Act, Administration officials and Capitol Hill Democrats say. That’s because revelations of her alleged plot may give credibility to calls for even greater investigative powers for the FBI and law enforcement, including Republican proposals to expand certain surveillance techniques that are currently limited to targeting foreigners.
Sadly, this is practically a genre resorted to by lazy writers whenever a domestic terror investigation is making headlines. It consists of indulging in a lot of fuzzy speculation about how the Patriot Act might have been crucial—for all we know!—to a successful investigation, even when every shred of available public evidence suggests otherwise. My favorite exemplar of this genre comes from a Fox News piece penned by journalist-impersonator Cristina Corbin after the capture of some Brooklyn bomb plotters last spring, with the bold headline: “Patriot Act Likely Helped Thwart NYC Terror Plot, Security Experts Say.” The actual article contains nothing to justify the headline: It quotes some lawyers saying vague positive things about the Patriot Act, then tries to explain how the law expanded surveillance powers, but mostly botches the basic facts. From what we know thanks to the work of real reporters, the initial tip and the key evidence in that case came from a human infiltrator who steered the plotters to locations that had been physically bugged, not new Patriot tools.
Of course, it may well be that National Security Letters or other Patriot powers were invoked at some point in this investigation—the question is whether there’s any good reason to suspect they made an important difference. And that seems highly dubious. LaRose’s indictment cites the content of private communications, which probably would have been obtained using a boring old probable cause warrant—and the standard for that is far higher than for a traditional pen/trap order, which would have enabled them to be getting much faster access to more comprehensive cell records. Maybe earlier on, then, when they were compiling the evidence for those tools? But as several reports on the investigation have noted, “Jihad Jane” was being tracked online by a groups of anti-jihadi amateurs some three years ago. As a member of one group writes sarcastically on the site Jawa Report, the “super sekrit” surveillance tool they used to keep abreast of LaRose’s increasingly disturbing activities was… Google. I’m going to go out on a limb and say the FBI could’ve handled this one with pre-Patriot authority, and a fortiori with Patriot authority restrained by some common-sense civil liberties safeguards.
What’s a little more unusual is to see this segue into the kind of argument we usually see in the wake of an intelligence failure, where the case is then seen as self-evidently justifying still more intrusive surveillance powers, in this case the expansion of the “lone wolf” authority currently applicable only to foreigners, allowing extraordinarily broad and secretive FISA surveillance to be conducted against people with no actual ties to a terror group or other “foreign power.” Yet as Time itself notes:
In fact, Justice Department terrorism experts are privately unimpressed by LaRose. Hers was not a particularly threatening plot, they say, and she was not using any of the more challenging counter-surveillance measures that more experienced jihadis, let alone foreign intelligence agents, use.
Which, of course, is a big part of the reason we have a separate system for dealing with agents of foreign powers: They are typically trained in counterintelligence tradecraft with access to resources and networks far beyond those of ordinary nuts. What possible support can LaRose’s case provide for the proposition that these industrial-strength tools should now be turned on American citizens? They caught her—and without much trouble, by the looks of it. Sure, this domestic nut may have invoked to Islamist ideology rather than the commands of Sam the Dog or anti-Semitic conspiracy theories… but so what? She’s still one more moderately dangerous unhinged American in a country that has its fair share, and has been dealing with them pretty well under the auspices of Title III for a good while now.
Wars, Crimes, and Underpants Bombers
I’ve been meaning to follow up on Gene Healy’s post from last week on the interrogation and prosecution of terror suspects. I share Gene’s bemusement at the howls emanating from Republicans who have abruptly decided that George Bush’s longstanding policy of dealing with terrorism cases through the criminal justice system is unacceptable with a Democrat in the White House. But I also think it’s worth stressing that the arguments being offered — both in the specific case of Umar Farouk Abdulmutallab and more generally — aren’t very persuasive even if we suppose that they’re not politically motivated.
Two caveats. First, folks on both sides would do well to take initial reports about the degree of cooperation terror suspects are providing with a grain of salt. For reasons too obvious to bother rehearsing, investigators won’t always want to broadcast accurately or in detail the precise degree of cooperation a suspect is providing. Second, as Gene noted, given that it seems unlikely we’ll need to use Abdulmutallab’s statements against him at trial, the question of whether the civilian or military system is to be preferred can be separated from the argument about the wisdom of Mirandizing him. That said, the facts we have just don’t seem to provide a great deal of support for the conclusion that, warning or no, criminal investigators are somehow incapable of effectively questioning terrorists.
Certainly if you ask veteran FBI interrogators, they don’t seem to share this concern that they won’t be able to extract intelligence their military counterparts would obtain. You might put that assessment down to institutional pride, but it’s consistent with the evidence, as the FBI has had impressive successes on this front already. And if you don’t want to take their word for it, you can always ask Judge Michael Mukasey who, before becoming attorney general under George W. Bush, ruled that military detainees were entitled to “lawyer up” — as critics of the Bush/Obama approach are wont to put it — explicitly concluding that “the interference with interrogation would be minimal or nonexistent.”
A Preemptive Word on “Lone Wolves”
As Marcy Wheeler notes, the press seem to have settled on the term “lone wolf” to describe Fort Hood gunman Nidal Malik Hasan, which means it’s probably only a matter of time before we encounter a pundit or legislator who is cynical or befuddled enough (or both) to invoke the tragedy in defense of the PATRIOT Act’s constitutionally dubious Lone Wolf provision. (A “matter of time” apparently meaning the time it took me to write that sentence: We have a winner!) Though the Senate Judiciary Committee has approved a bill that would renew the measure, their counterparts in the House wisely—though narrowly—voted to permit it to expire last week.
To spare anyone tempted by this argument some embarrassment: The Lone Wolf provision is totally irrelevant to this case. It could not have been used to investigate Hasan, nor would it have been necessary.
The Lone Wolf provision permits the targeting of non-U.S. persons when there is probable cause to believe they’re preparing to engage in acts of international terrorism. Even if we assume the statutory definition of “international terrorism” could be stretched to cover the Fort Hood attack—and perhaps it could—the provision would have been inapplicable to the Virginia–born Hasan.
So were investigators powerless? Of course not. PATRIOT’s Lone Wolf clause relates only to whether the tools available under the Foreign Intelligence Surveillance Act can be invoked. Shooting people, however, is a crime even when committed for reasons having nothing to do with jihad, and the standard for obtaining a warrant—probable cause—is the same. The chief advantage of FISA tools is that they tend to be both highly secret and, in certain respects, broader than criminal investigative tools—features that are vital when dealing with trained terror agents who are working with an international network it’s important not to tip off, but not so much for “lone wolves,” who by definition lack any such network.
In fact, though, even if the most ambitious reforms proposed by Democrats had been in place, PATRIOT powers could have been brought to bear on Hasan had investigators chosen to do so. We are told, for instance, that investigators months ago became aware of Hasan’s efforts to contact al-Qaeda affiliates abroad. That alone would have provided grounds—again, under current law and under the most civil-liberties protective modifications being considered—for the issuance of National Security Letters seeking his financial and telecommunications records.
The truth is that the Lone Wolf provision didn’t help—and couldn’t have helped—stop this “lone wolf.” Indeed, it’s hard to imagine what additional powers would have been useful here given what it seems investigators already knew. As our recent history makes all too clear, what typically makes the difference between intelligence success and failure is not how much information you can get, at least past a certain point, but knowing what to do with the information you’ve got. But of course, that’s difficult to do, and doesn’t tend to be the kind of thing that can be fixed with a couple crude statutory provision you can brag about in press releases to your constituents. So pundits and legislators see a delicate information processing system failing to flag the right targets and conclude, every time, that the right solution is more juice! Turn up the voltage! Try that troubleshooting strategy with your laptop sometime and let me know how it works out.
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