Former NSA Lawer Stewart Baker: FISA Minimization Policies Are To Blame For 9/11 Attacks

from the next-up:-opinion-blogs-to-blame-for-9/11-attacks! dept

Stewart Baker, former DHS official and NSA counsel, has plenty of blame to spread around for the 9/11 attacks. None of it seems to lay at the feet of the terrorists who performed the attacks, however. He’s entertained various theories over the past few months as he’s defended the actions of the NSA, TSA and various other government agencies.

Most egregiously, Baker claimed civil liberties activists were to blame for the 9/11 attacks because their concern over warrantless wiretap programs somehow made the FISA court so defensive it wouldn’t let the FBI pursue terrorists it knew were currently in the country.

Baker expounds on this further in his post criticizing the NSA-targeting Leahy-Sensenbrenner bill, making the argument that FISA minimization policies prevented the FBI from tracking down terrorists located in the US.

The Leahy-Sensenbrenner USA FREEDOM Act puts the Foreign Intelligence Surveillance (FIS) court in charge of shaping, overseeing, and enforcing minimization guidelines in connection with section 215, pen/trap orders, and section 702, largely taking the Attorney General out of the process of writing minimization guidelines. I’m appalled, because the FIS court has taken control of minimization before, with disastrous consequences; it built a “wall” between intelligence and law enforcement without any legal basis for doing so, and enforced the wall so aggressively that the FBI couldn’t use its best counterterrorism assets to track down the hijackers in late August and early September 2001. In a very real sense, it was the FIS court’s legal error combined with a self-righteous use of its contempt power that thwarted the country’s last, best chance to stop the attacks.

Baker is one of the only people out there who have taken the FISA court to task for being “too restrictive.” According to Baker, this is because its reaction to early “rubber stamp” criticism was to swing the other way and utilize its contempt power to limit the reach of intelligence agencies.

It’s hard to argue with the rubber stamp perception, considering the court has approved nearly every request that has crossed its desk. The court may argue that several requests are sent back for major changes before finally being approved, but the end result is still the same: large-scale collections of untargeted, domestic data are still being OK’ed. Not only that, but expansions of programs have been granted even as FISA judges detail large amounts of agency wrongdoing within those same opinions.

But going back to Baker’s opening statement, the FISA court didn’t erect a minimization “wall” that prevented data from being shared between agencies. And even if it had, the breakdown that led to a domestically-located terrorist eluding multiple US agencies would not have been affected by looser minimization standards.

The ACLU’s Michael German thoroughly dissected the intelligence failures preceding the 9/11 attacks using widely-available information from the 9/11 Commission’s report. Baker’s supposedly hamstrung agencies are nowhere to be found.

It turns out that the NSA was intercepting calls to the al Qaeda safe house in Yemen as early as 1999, and both the FBI and CIA knew Mihdhar was an al Qaeda operative long before the 9/11 attacks.

The safe house was discovered during the FBI’s investigation into the 1998 bombings of two U.S. embassies in East Africa, and had been monitored by the NSA and CIA ever since. The inspector general’s report couldn’t be clearer that the intercepts were being broadly shared:

“The NSA’s reporting about these communications was sent, among other places, to FBI Headquarters, the FBI’s Washington and New York Field Offices, and the CIA’s CTC. At the FBI, this information appeared in the daily threat update to the Director on January 4, 2000.”

Here we see multiple agencies broadly sharing information on a known terrorist. Not only that, but the intercepted phone calls were to a known terrorist group, meaning the call data on those would be subject to very little, if any, minimization procedures and could be tipped to the FBI without stripping identifying info. At this point, three agencies knew about the calls to an al Qaeda safehouse.

What happened next had nothing to do with minimization procedures. The agencies involved knew Mihdhar was communicating with terrorist entities outside the US, so the governor was off, so to speak. Unfortunately, the CIA decided to do nothing with the additional information it had.

The CIA, however, failed to place Mihdhar on a watch list or “notify the FBI when it learned Mihdhar possessed a valid U.S. visa,” according to the 9/11 Commission report. The inspector general’s report revealed that five FBI officials assigned to the CIA Counterterrorism Center viewed CIA cables indicating Mihdhar had a U.S. visa. A week after the Kuala Lumpur meeting, Mihdhar and Hazmi flew into Los Angeles International Airport and entered the United States without a problem.

So, we have an agency failing to put a potentially dangerous person on a watch list and we have the FBI itself, the agency Baker claims was cut out of the loop by FISA court meddling, failing to do anything with the information it had pulled from CIA cables — information Baker is apparently claiming it had no access to.

Then we have the NSA itself collecting even more data and doing nothing with it.

After their entrance, the NSA would intercept at least six calls from the al Qaida safe house in Yemen to the United States, according to the Los Angeles Times.

Even if the NSA was prevented by FISA court interference from tipping these calls to the FBI (which is doubtful, considering they were contacts with a terrorist entity), it still had the info in its possession and didn’t act on it.

There are many levels of failure at play here, but protecting the data of American citizens isn’t one of them. Baker’s interest in placing the blame for the 9/11 attacks on the NSA’s critics has gone past unseemly. At this point, he sounds like a one-man echo chamber. The entities he despises the most (EFF, ACLU, etc.) are somehow the villains in every scenario, whether it’s a national tragedy or the TSA’s invasive pre-flight security theater, even when every argument he makes fails to produce any evidence towards his conclusions.

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Comments on “Former NSA Lawer Stewart Baker: FISA Minimization Policies Are To Blame For 9/11 Attacks”

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The Real Michael says:

Re: Re:

None of those buildings could’ve collapsed from a fire. Their steel frame would’ve remained intact. The steel underneath the rubble of the WTC was molten (i.e. around 2,000 degrees) until sometime in mid-December of that year. The workers there are recorded on video saying as much, talking about how nobody could even get near it without their workboots melting. There’s even a NASA infra-red photo taken from an aerial view showing just how hot it was. Building 7 pancaked into its own footprint despite not even being hit. No way in hell is it possible to take down skyscrapers with fire. It takes expert planning months in advance by a demolition crew in order to bring a skyscraper down.

One word: thermite.

Indy says:

Privacy tag

Speaking of Privacy, does anyone know why Techdirt uses Feedsportal for it’s RSS feed delivery? Feedsportal has no stated privacy policy, and add-ons like ghostery block it.

Given you have a prrivacy policy, and you ask that sites also try and preserve the privacy of its users to the balance of users and the original website, why do you do business with feedsportal?

Anonymous Coward says:

contempt power

I’d be interested in knowing what use of it’s contempt power Baker is referring to. What was the government doing to require the courts censure?
With the blatant disregard the executive has for the court orders and the misleading information they’ve provided the court recently, I’m disappointed the court hasn’t used its contempt power more. This court is patient to a fault. I’d like to hear what it was that the government was doing back then that caused the court to tell the government that it crossed the line (I wasn’t aware the court had a line).

Anonymous Coward says:

Once the court has negotiated minimization guidelines, it owns them, pet rocks and all.

As the court becomes more familiar with the agency, it grows more invested in the implementation of particular measures and policies. The temptation to declare that its favored measures are required by law is very great.

Stewart actually makes a good point here (thought perhaps not the point he was going for). The court has already told the NSA that it’s bulk record collection is fine. Courts don’t often like to contradict themselves. It’ll probably take a higher court, not bound by FISC precedent, to say no, it’s not fine.

Anonymous Coward says:

Re: Re:

It’ll probably take a higher court, not bound by FISC precedent, to say no, it’s not fine.

Don’t pin your hopes too much on the court system.

It’s not often remembered, but after Chief Justice Marshall established the court’s power to strike down a congressionally-enacted statute in Marbury v Madison (1803), the principle then remained unused and dormant for another half century. Then, the second case where the court struck down one of Congress’ acts was in 1857, when Chief Justice Taney decided the infamous case of Scott v Sandford.

The current court, the Roberts court, is no Warren court.

Anonymous Coward says:

it’s pricks like this that get the country into the shit street that it’s in now! the overreach of supposed ‘security forces’ and under reach of those that are supposed to keep a stern, watchful eye on what they are doing as well as what they are allowed to do are bad enough, but to blame them for the failings of the agencies? bloody ridiculous! if it were up to me, the lot would be up on charges, including him, for not taking responsibility for his actions

Anonymous Coward says:

Re: Re:

How about…I don’t know…the US government bullying people in the Middle East being responsible for the 9/11 attack?

On Tuesday, September 11, 2001, four civil transport aircraft, carrying civilian men, women and children were hijacked. Two of those airplanes were deliberately flown into a non-military target, the civilian office buildings at the World Trade Center, which were filled with non-combatant civilians. As a result of the attacks, hundreds of civil police and civil firefighters responded, and also lost their lives when the buildings collapsed.

About 3,000 people were killed. Nearly all were civilians, and most were private citizens, embarked on peaceful pursuits, going about their daily lives.



From the tone of your comment, you appear to be implying that the hijackings were justifiable ?blowback? resulting from ?US government bullying? in the Mideast.

I want to make sure that I understand you correctly on this point.

John Fenderson (profile) says:

Re: Re: Re:

I didn’t read the word “justifiable” in his comment anywhere. I think you might be imagining that. Remember, understanding and being able to explain the rationale someone is using doesn’t imply that you agree with it.

As I read it, his comment is right on the money. If we hadn’t been messing with those nations in such terrible ways, 9/11 would never have happened.

Anonymous Coward says:

Re: Re: Re: Re:

I didn’t read?

Well, he can speak for himself, can’t he?


If we hadn’t been messing with those nations in such terrible ways, 9/11 would never have happened.

I, personally, was not messing with those nations.

Nevertheless, I do believe that the attacks were directed at me. At the American people?or I guess we’re not really people, just abstract symbols. Statistics. Not even collateral damage?an office building isn’t a military target, so we can’t be damaged collaterally to anything. No, we’re not really even human. Just sub-human apes. Animals shaped like humans?that’s what we are.

John Fenderson (profile) says:

Re: Re: Re:2 Re:

I do believe that the attacks were directed at me. At the American people

Yes, obviously.

Just sub-human apes. Animals shaped like humans?that’s what we are.

Which is exactly how we view people we don’t directly interact with regularly. It’s the whole Monkeysphere thing. We all do it, them, us, me, and you. It’s built into our brains. It’s one of the worse human traits.

That’s why we can do things like abuse and harm the peoples of other nations just because they have a valuable resource that we are going to get one way or another. They aren’t people. They’re just some of the fauna on the land that has what we want.

Brazenly Anonymous says:

Re: Re: Re:2 Re:

I, personally, was not messing with those nations.

“Let them eat cake” This is you. This was all of us, or at least most of us. We didn’t understand them, and allowed our government to persecute and oppress them while we reaped the benefits of its position in the world.

What they did was horrible, and there is no justifying it. But reacting to the sympton and ignoring the root cause, the initiator of hostitilities is foolish. Yet the moment someone points this out you resort to a fallacious appeal to emotion and a straw man.

Why? What dog do you have in this fight. Full disclosure please.

Anonymous Coward says:

Re: Re: Re:3 Re:

“Let them eat cake”

No. ? It is now, ?Let them eat stones.?

It’s a Japanese thing. You probably won’t understand. The metaphor hasn’t had much currency here in America in well-over half a century. But perhaps you know a Japanese person who can explain it you.

Let them eat stones.

Let them all eat stones.

Niall (profile) says:

Re: Re: Re:2 Re:

Wow, extrapolating much? Also, that was a very multi-national target – for goodness sake, the ex-wife of Prince Andrew of Britain was nearly caught in it.

But unfortunately, you’ve made yourselves targets with the way you deal with other countries, with your blatant hypocrisies, and your arrogance (and not just you, the British have as well). Add to that a poorly integrated security apparatus and the most deplorably lax airplane security in the West and you had a real recipe for disaster.

And it’s not even like it was the first attempt to hit the Towers!

art guerrilla (profile) says:

Re: Re: Re:

with VERY FEW respites in its his story, amerika has been at war against one country or another… now, we’re so super-civilized (the most civilizedest EVAHHHH!), we can wage war against a handful of countries at one time, with one claw tied behind our backs…

we HAVE -directly and indirectly- been responsible for the MURDER of MILLIONS of mostly brown, mostly poor, mostly mooselimb people -‘civilians’, men, women and children of all ages- ACROSS THE PLANET against people and countries who COULD NOT under any conceivable circumstance pose a real risk to amerika…

endless, illegal, immoral, unjustified, worldwide war waged against EVERYONE, and on CIVILIANS who had less to do with whatever irked Empire, than fat, jingoist, propaganda-victims like yourself are responsible for by supporting this amoral Empire…

you should be ashamed, yet you bray like an ass…

if you go by body counts, you’ll lose that argument every day of the week, propagandabot…

art guerrilla
aka ann archy
art guerrilla at windstream dot net

georgio says:

Obtuse Americans

Shameful,after 12 years most Americans still believe Muslims did the Sept 11/01 Bombings and high jackings. hundreds of Israelies were arrested and FBI released them and charges kept secret. Get this dummies–a van with the sides painted with plane hitting WTC towers. Two occupants dressed as Arabs but FKN Israelies, and large quantities of explosives found.This bombings was to take place at Washington bridge. Where are these two Jew pukes–laughing it up in Israel on our tax dollars,

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