How Dianne Feinstein Misled Congress About How 'Useful' NSA Spying Authorities Were In Stopping Plots

from the say-what-now? dept

We've been following the case of Adel Daoud for a little while now. He's one of the many people arrested for "terrorism" in one of the FBI's dozens of "home grown plots" in which they create their very own terrorist plot, dupe someone into "joining" and then arrest (and then relish in the headlines about stopping a terrorist "plot" that was never a real plot in the first place). In Daoud's case, the made up "plot" involved blowing up a Chicago bar. But the Daoud case got a lot more attention, because in the big "debate" over the renewal of the FISA Amendments Act (FAA) in late 2012, Senator Dianne Feinstein directly described the Daoud "plot" as an example of why the FAA and Section 702 were necessary. Here's what she said:
There is a view by some that this country no longer needs to fear attack. I don't share that view, and I have asked the intelligence committee staff to compile arrests that have been made in the last 4 years in America on terrorist plots that have been stopped. There are 100 arrests that have been made between 2009 and 2012. There have been 16 individuals arrested just this year alone. Let me quickly review some of these plots. Some of these may arrests come about as a result of this program. Again, if Members want to see the specific cases where FISA Amendments Act authorities were used, they can go and look at the classified background of these cases.

First, in November, 1 month ago, two arrests for conspiracy to provide material support to terrorists and use a weapon of mass destruction. That was Raees Alam Qazi and Sheheryar Alam Qazi. They were arrested by the FBI in Fort Lauderdale, FL. The next case is another conspiracy to provide material support. Arrested were Ralph Deleon, Miguel Alejandro Santana Vidriales and Arifeen David Gojali. These three men were planning to travel to Afghanistan to attend terrorist training and commit violent jihad; third, was a plot to bomb the New York Federal Reserve Bank; fourth, a plot to bomb a downtown Chicago bar; fifth, a conspiracy to provide material support to the Islamic Jihad Union; sixth, a plot to carry out a suicide bomb attack against the U.S. Capitol in February of 2012; seventh, a plot to bomb locations in Tampa, FL; eighth, a plot to bomb New York City targets and troops returning from combat overseas; ninth, a plot to assassinate the Saudi Ambassador to the United States; and it goes on and on and on.

So I believe the FISA Amendments Act is important and these cases show the program has worked
That caught the attention of a bunch of folks, because nowhere in Daoud's case had the government suggested it had obtained or used evidence via the FAA -- leading to serious questions about whether the government had been withholding evidence or if that evidence had been unconstitutionally obtained. Unfortunately, Daoud's attempt to get access to whatever evidence has been collected on him has been shut down by the courts. Judge Richard Posner issued a "supplemental classified opinion" to go with the original opinion we wrote about, but parts of that opinion have been released as well. Very large portions of it, however, remain totally redacted. What remains more or less says that the government did everything in a proper way and there were no constitutional problems. It also implies there was a ton of evidence pointing to Daoud's activities.

However, what caught my attention in the unredacted snippets of the ruling is Judge Posner basically claiming that Feinstein's claims about Daoud's case involving the FAA didn't actually mean the FAA was used:
The defendant's challenge relies primarily on a December 27, 2012 Senate floor speech by Senator Feinstein, who said: "There have been 16 individuals arrest[ed] just this year alone. Let me quickly just review what these plots were. And some of them come right from this program [meaning the FAA]. The counter-terrorism come[s] -- and the information came right from this program. And again, if members want to see that, they can go and look in a classified manner.... Fourth, a plot to bomb a downtown Chicago bar...." (emphasis added) (visited July 11, 2014).

The referenced "plot" is obviously the defendant's, and because the Senator used the examples to support the reauthorization of the FAA, the defendant not unreasonably interpreted her remarks to mean that the FAA had been used in his case. But an equally reasonable interpretation of the Senator's remarks is that she was merely saying that the defendant was one of the 16 individuals who had been arrested in 2012, same of whom had been arrested on the basis of such information. The Senate's Legal Counsel confirmed in a letter to defense counsel that "Senator Feinstein did not state, and did not mean to state, that FAA surveillance was used in any or all of the nine cases she enumerated, including [the defendant's] case, in which terrorist plots had been stopped.... Rather, her purpose in reviewing several recent terrorism arrests was to refute the "view by some that this country no longer needs to fear attack.'"
Reading the original quote, Posner is correct that before Feinstein lists the examples, she adds the caveat that "some" of them "may" have used the FAA. But she also concludes it by insisting that these prove that the FAA worked. If anything, this ruling highlights just what a disingenuous and deceiving speech Feinstein gave during the debate over the FAA. Any reasonable person listening to that speech would hear that and believe that this program (the FAA and its 702 surveillance program) was the key to breaking up all of those "plots." After all, the entire debate was about renewing the FAA.

And yet, now it's quite clear that Feinstein was just listing out any and all "plots" (and even that is not really accurate since so many, including Daoud, were plots created by the FBI itself, meaning they never needed the FAA anyway), and falsely implying the FAA was necessary to break them up. Feinstein's scare-mongering over what would happen without a renewal of the FAA was a big part of why it passed, and as this ruling more or less confirms, she completely mislead others in Congress and the American public about it.

Filed Under: adel daoud, dianne feinstein, fisa amendments act, fud, nsa, richard posner, section 702, surveillance, terrorism


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  1. identicon
    Trevor, 1 Aug 2014 @ 1:16pm

    Let's Recap

    Let's Recap:

    1. Snowden releases information suggesting the NSA is spying on everyone.

    2. The extent of the FAA/FISA/etc systems indicate that secret courts have found all of this legal.

    3. EFF/ACLU/Amnesty file suits challenging the constitutionality of such programs, including the violation of the Fourth Amendment.

    4. Amnesty Case makes it to Appellate Court, where Solicitor General says it isn't a violation, and suggests that if evidence obtained via FISA/etc. is used against that defendant, the defendant will have access to it in court. The Supreme Court took this as true and ruled that Amnesty had no standing because it couldn't prove it was spied on.

    5. Feinstein makes that awesome speech, and uses specific examples of how the FISA/etc. evidence helped stop various plots, including the Chicago Bar bombing.

    6. Defendant and his counsel in Chicago Bar Bombing case are interested, because per #4, they were never given any information derived from FISA/FAA, suggesting withheld evidence. Lawsuits are had.

    7. Judge Posner considers the case, and finds everything is hunky dory, and everything was legal, and the Defendant does not get access to the evidence obtained via FISA/FAA.

    Therefore:

    8. Since Defendant cannot see evidence used against him, he does not have standing to challenge the constitutionality of the seizure or search.

    Even though the Solicitor General told the Supreme Court that if FISA/etc. is used to gather evidence in a criminal case, the Defendant and his counsel would have access to it. The judges relied on this in denying standing.

    Circular reasoning is circular. There is no way to break the loop and see what evidence was used against him.

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