Lawyers and intelligence experts with direct knowledge of two
intercepted terrorist plots that the Obama administration says confirm
the value of the
NSA's vast data-mining activities have questioned whether the surveillance sweeps played a significant role, if any, in foiling the attacks.
(Image via eff.org)
The defence of the controversial data collection operations,
highlighted in a series of Guardian disclosures over the past week,
has been led by Dianne Feinstein, chairwoman of the Senate intelligence
committee, and her equivalent in the House, Mike Rogers. The two
politicians have attempted to justify the
NSA's use of vast data sweeps such as Prism and Boundless Informant by pointing to the arrests and convictions of would-be
New York
subway bomber Najibullah Zazi in 2009 and David Headley, who is serving
a 35-year prison sentence for his role in the 2008 Mumbai attacks.
Rogers told ABC's This Week
that the NSA's bulk monitoring of phone calls and internet contacts was
central to intercepting the plotters. "I can tell you, in the Zazi case
in New York, it's exactly the programme that was used," he said.
A similar point was made in anonymous briefings by administration officials to the
New York Times and
Reuters.
But court documents lodged in the US and UK, as well as interviews
with involved parties, suggest that data-mining through Prism and other
NSA programmes played a relatively minor role in the interception of the
two plots. Conventional surveillance techniques, in both cases
including old-fashioned tip-offs from intelligence services in Britain,
appear to have initiated the investigations.
In the case of Zazi, an Afghan American who planned to attack the New
York subway, the breakthrough appears to have come from Operation
Pathway, a British investigation into a suspected terrorism cell in the
north-west of England in 2009.
That investigation discovered that one of the members of the cell had been in contact with an al-Qaida associate in Pakistan via the email address
sana_pakhtana@yahoo.com.
British newspaper reports at the time of Zazi's arrest said that UK intelligence passed on the email address to the US. The same email address,
as Buzzfeed has pointed out, was cited in
Zazi's 2011 trial as a crucial piece of evidence. Zazi, the court heard, wrote to
sana_pakhtana@yahoo.com asking in coded language for the precise quantities to use to make up a bomb.
Eric Jurgenson, an FBI agent involved in investigating Zazi once the
link to the Pakistani email address was made, told the court: "My office
was in receipt – I was notified, I should say. My office was in receipt
of several email messages, email communications. Those email
communications, several of them resolved to an individual living in
Colorado."
Michael Dowling, a Denver-based attorney who acted as Zazi's defence
counsel, said the full picture remained unclear as Zazi pleaded guilty
before all details of the investigation were made public. But the lawyer
said he was sceptical that mass data sweeps could explain what led law
enforcement to Zazi.
"The government says that it does not monitor content of these
communications in its data collection. So I find it hard to believe that
this would have uncovered Zazi's contacts with a known terrorist in
Pakistan," Dowling said.
Further scepticism has been expressed by David Davis, a former
British foreign office minister who described the citing of the Zazi
case as an example of the merits of data-mining as "misleading" and "an
illusion". Davis pointed out that Operation Pathway was prematurely
aborted in April 2009 after Bob Quick, then the UK's most senior
counter-terrorism police officer, was pictured walking into Downing
Street with top secret documents containing details of the operation in
full view of cameras.
The collapse of the operation, and arrests of suspects that hurriedly
followed, came five months before Zazi was arrested in September 2009.
"That was the operation that led to the initial data links to Zazi –
they put the clues in the database which gave them the connections,"
Davis said.
Davis said that the discovery of the
sana_pakhtana@yahoo.com
email – and in turn the link to Zazi – had been made by traditional
investigative work in the UK. He said the clue-driven nature of the
inquiry was significant, as it was propelled by detectives operating on
the basis of court-issued warrants.
"You can't make this grand sweeping [data collection] stuff subject
to warrants. What judge would give you a warrant if you say you want to
comb through vast quantities of data?"
Legal documents lodged with a federal court
in New York's eastern district shortly after Zazi's arrest show that US
counter-intelligence officials had been keeping watch over him under
targeted surveillance with the warranted approval of the special
intelligence court. During the course of the prosecution, the US served
notice that it would be offering evidence "obtained and derived from
electronic surveillance and physical search conducted pursuant to the
Foreign Intelligence Surveillance Act of 1978 (Fisa)."
Feinstein and Rogers have also pointed to the case of David Headley,
who in January was sentenced to 35 years in jail for having made
multiple scouting missions to Mumbai ahead of the 2008 terrorist attacks
that killed 168 people. Yet the evidence in his case also points
towards a British tip-off as the inspiration behind the US interception
of him.
In July 2009, British intelligence began tracking Headley, a
Pakistani American from Chicago, who was then plotting to attack Danish
newspaper Jyllands-Posten in retaliation for its publication of cartoons
of the prophet Mohammed. Information was passed to the FBI and he was
thereafter, until his arrest that October, kept under targeted US
surveillance.
An intelligence expert and former CIA operative, who asked to remain
anonymous because he had been directly involved in the Headley case, was
derisive about the claim that data-mining sweeps by the NSA were key to
the investigation. "That's nonsense. It played no role at all in the
Headley case. That's not the way it happened at all," he said.
The intelligence expert said that it was a far more ordinary lead
that ensnared Headley. British investigators spotted him when he
contacted an informant.
The Headley case is a peculiar choice for the administration to
highlight as an example of the virtues of data-mining. The fact that the
Mumbai attacks occurred, with such devastating effect, in itself
suggests that the NSA's secret programmes were limited in their value as
he was captured only after the event.
Headley was also subject to a plethora of more conventionally
obtained intelligence that questions the central role claimed for the
NSA's data sweeps behind his arrest.
In a long profile of Headley,
the investigative website ProPublica pointed out that he had been an
informant working for the Drug Enforcement Administration perhaps as
recently as 2005. There are suggestions that he might have then worked
in some capacity for the FBI or CIA.
Headley was also, ProPublica found, the subject of several inquiries
by agents of the FBI-led Joint Terrorism Task Force. A year before the
Mumbai attacks his then wife, Faiza Outalha, reported on him to the US
embassy Islamabad, saying he was on a secret mission in India and was a
"drug dealer, terrorist and spy".
© 2013 The Guardian
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