Robert Mueller, the director of the FBI testified in front of the House judiciary committee on Thursday, and like others before him, attempted to justify widespread domestic surveillance by pointing at all the terrorist activity it has and could have prevented. (All the while conveniently ignoring the fact that these tactics had little to do with successfully prevented terrorist attacks.)
He described how Khalid al-Midhar, one of the 9-11 hijackers, had called a Yemeni safe house from a phone in San Diego shortly before the attack – a phone call that would have been intercepted and acted upon, claimed Mueller, had today's surveillance system been in place.
Prevented 9/11? That's an interesting claim -- one that can't be easily disputed (or verified). But there's a couple of problems with Mueller's scenario. One, the FBI would have needed to "connect all the dots" beforehand, something that much easier said than done. Not having these dots connected allowed the Boston bombers to slip through
the surveillance net. This is not necessarily a failure. Exponentially increasing the amount of data turns surveillance into a search for a needle in a haystack -- and the FBI, NSA, et al seem to be mainly concerned that the haystack just isn't big enough.
Two, there's a good possibility that the FBI and NSA already had something like this in the works (if not actually operable) even before
the 9/11 attacks. The Big Picture points out that the NSA was already installing backdoors in the Windows operating system back in 1999
, and links to
a story detailing a DEA/NSA collaboration, which supposedly installed a domestic "call tracing program" at AT&T and Verizon in December of 2000
and which had been tracking calls from the US to various countries since the 1990's.
The government’s dependence on the phone industry, driven by the changes in technology and the Bush administration’s desire to expand surveillance capabilities inside the United States, has grown significantly since the Sept. 11 attacks. The N.S.A., though, wanted to extend its reach even earlier. In December 2000, agency officials wrote a transition report to the incoming Bush administration, saying the agency must become a “powerful, permanent presence” on the commercial communications network, a goal that they acknowledged would raise legal and privacy issues.
In the drug-trafficking operation, the N.S.A. has been helping the Drug Enforcement Administration in collecting the phone records showing patterns of calls between the United States, Latin America and other drug-producing regions. The program dates to the 1990s, according to several government officials, but it appears to have expanded in recent years.
Officials say the government has not listened to the communications, but has instead used phone numbers and e-mail addresses to analyze links between people in the United States and overseas. Senior Justice Department officials in the Bush and Clinton administrations signed off on the operation, which uses broad administrative subpoenas but does not require court approval to demand the records...
In a separate program, N.S.A. officials met with the Qwest executives in February 2001 and asked for more access to their phone system for surveillance operations, according to people familiar with the episode. The company declined, expressing concerns that the request was illegal without a court order. The agency, those knowledgeable about the incident said, wanted to install monitoring equipment on Qwest’s “Class 5” switching facilities, which transmit the most localized calls. Limited international traffic also passes through the switches.
Other N.S.A. initiatives have stirred concerns among phone company workers. A lawsuit was filed in federal court in New Jersey challenging the agency’s wiretapping operations. It claims that in February 2001, just days before agency officials met with Qwest officials, the N.S.A. met with AT&T officials to discuss replicating a network center in Bedminster, N.J., to give the agency access to all the global phone and e-mail traffic that ran through it.
The same lawsuit accuses Verizon of setting up a dedicated fiber optic line from New Jersey to Quantico, Va., home to a large military base, allowing government officials to gain access to all communications flowing through the carrier’s operations center.
This certainly gives the appearance that someone, if not necessarily the FBI, would have had access to a great many phone records months before the 9/11 attacks
, if not actually years
before. And yet, the attacks still happened and the head of the FBI is using the tragedy as a crutch to support harvesting millions of records on domestic
(For added verification that the "because terrorism" argument for widespread surveillance predates the 9/11 attacks, here's George Herbert Walker Bush complaining that requiring warrants for "terror" wiretaps would be an "unnecessary diminution of collection of foreign intelligence"
-- in 1976
Despite this, Mueller doubled down on the "threat prevention" argument. Not only could the surveillance prevent the next 9-11, but the next Boston bombing as well. This led to many Congressmen angrily asking why the FBI hadn't bothered preventing the first
Boston bombing, seeing as it had access to all of this ultra-effective, terrorist-fighting data. Mueller's rebuttal? Even the smallest curtailing of the FBI's virtually unlimited access to data would be catastrophic.
"If you narrow [the scope of surveillance], you narrow the dots and that might be the dot that prevents the next Boston," said Mueller.
Mueller also expressed concern about granting permission to Google and other internet companies to disclose details on requests for data.
He also rejected calls from technology companies such as Google to disclose the scale of the programs, saying even this information could help terrorists seeking to hide their communications.
"Any tidbit of information that comes out" about how authorities track communications means terrorists "find ways around", he said.
"Every time we have a leak like this and you follow it up and look at the intel afterwards [you find terrorists] are looking for ways around.. If we lose our ability to get their communications we are going to be exceptionally vulnerable."
Sure, terrorists might decide to use services that fight government data requests
(or avoid services the government is currently surveilling) but so will many Americans and foreigners who are currently suspected of nothing but are being loosely surveilled all the same. Keeping the terrorists in the dark would be one thing if the surveillance was limited to suspected terrorists, but the FBI/NSA's blanket coverage affects millions of people worldwide. This, combined with the lack of proof these supposedly crucial tools are useful in fighting terrorism, is a strong argument for allowing companies forced to comply with untargeted data hauls granted by a secret court to, at minimum, inform their users that these demands are being received and/or complied with.
You have to admire Mueller's one-track defense. According to him, everything that's been leaked harms our national anti-terrorists efforts. Non-terrorist Americans have no need to question the methods being used or fear for their privacy. Mueller says the call data can only
be used for anti-terrorism efforts, citing section 205 of the PATRIOT ACT. But as Julian Sanchez points out
, this section explicity allows the supposedly "one-purpose" information to be disseminated to law enforcement in order to pursue non-terrorist suspects
In this section, the term “minimization procedures” means—
(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is 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.
Above and beyond these "minimization procedures" that allow for a surprising amount of easy dissemination, there's the fact that the FBI (and others) have rendered the limitations of the PATRIOT ACT meaningless by declaring pretty much everything collected to be "relevant" to anti-terrorist efforts.
Others questioned whether the FBI had acted lawfully in seeking to use section 215 of the Patriot Act to target all calls made in the US on the basis that they "might become relevant" to future terrorism investigations.
Searching the houses of every phone owner might
uncover something relevant to current
investigations, which is arguably more useful than harvesting data for future reference, and yet, no one seems to think that's a good idea. Gathering metadata is much less intrusive than house-to-house sweeps, but just because it's less noticeable doesn't mean it's any less wrong.
Mueller's excuses were worn out before he even started using them. But it wasn't the first time "terrorism" has been used to justify government overreach and it surely won't be the last.