Turns Out Feds Actually Tracked Most International Calls For Nearly A Decade Before 9/11 -- Didn't Stop The Attack

from the well,-look-at-that dept

One of the big arguments trotted out repeatedly by surveillance state defenders concerning the NSA's Section 215 program to collect records on all phone calls is that such a thing "would have prevented 9/11" if it had been in place at the time. Here's former FBI boss Robert Mueller making just that argument right after the initial Snowden leaks. Here's Dianne Feinstein making the argument that if we had that phone tracking program before September 11th, we could have stopped the attacks. And here's former NSA top lawyer and still top NSA supporter Stewart Baker arguing that the program is necessary because the lack of such a program failed to stop 9/11.

Except, it turns out, the feds did have just such a program prior to 9/11 -- run by the DEA. As you may recall, back in January it was revealed that the DEA had its own database of phone call metadata of nearly all calls from inside the US to foreign countries. Brad Heath at USA Today came out with a report yesterday that goes into much more detail on the program, showing that it dates back to at least 1992 -- meaning that the feds almost certainly had the calls that Feinstein and Mueller pretended the government didn't have prior to 9/11.
The now-discontinued operation, carried out by the DEA's intelligence arm, was the government's first known effort to gather data on Americans in bulk, sweeping up records of telephone calls made by millions of U.S. citizens regardless of whether they were suspected of a crime. It was a model for the massive phone surveillance system the NSA launched to identify terrorists after the Sept. 11 attacks. That dragnet drew sharp criticism that the government had intruded too deeply into Americans' privacy after former NSA contractor Edward Snowden leaked it to the news media two years ago.
But, you might say, perhaps the DEA didn't share that info with the NSA. Well... if we go back to some of the NY Times award-winning reporting on the NSA's surveillance programs from 2007, we see that it actually mentions this DEA program... and notes that the NSA worked with the DEA on it:
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.
That's from 2007 reporting by James Risen, Eric Liechtblau and Scott Shane. Heath's reporting fills in some additional gaps:
The data collection began in 1992 during the administration of President George H.W. Bush, nine years before his son, President George W. Bush, authorized the NSA to gather its own logs of Americans' phone calls in 2001. It was approved by top Justice Department officials in four presidential administrations and detailed in occasional briefings to members of Congress but otherwise had little independent oversight, according to officials involved with running it.

The DEA used its data collection extensively and in ways that the NSA is now prohibited from doing. Agents gathered the records without court approval, searched them more often in a day than the spy agency does in a year and automatically linked the numbers the agency gathered to large electronic collections of investigative reports, domestic call records accumulated by its agents and intelligence data from overseas.

The result was "a treasure trove of very important information on trafficking," former DEA administrator Thomas Constantine said in an interview.
The report also shows how the DEA got this info from telcos using the simple process of an administrative subpoena, so there was no court review. Telcos could have protested and gone to court, but the DOJ urged them not to do so:
The DEA obtained those records using administrative subpoenas that allow the agency to collect records "relevant or material to" federal drug investigations. Officials acknowledged it was an expansive interpretation of that authority but one that was not likely to be challenged because unlike search warrants, DEA subpoenas do not require a judge's approval. "We knew we were stretching the definition," a former official involved in the process said.

Officials said a few telephone companies were reluctant to provide so much information, but none challenged the subpoenas in court. Those that hesitated received letters from the Justice Department urging them to comply.

After Sprint executives expressed reservations in 1998, for example, Warren, the head of the department's drug section, responded with a letter telling the company that "the initiative has been determined to be legally appropriate" and that turning over the call data was "appropriate and required by law." The letter said the data would be used by authorities "to focus scarce investigative resources by means of sophisticated pattern and link analysis."
And, of course, the DEA kept this whole database of metadata a secret by... using parallel construction:

To keep the program secret, the DEA sought not to use the information as evidence in criminal prosecutions or in its justification for warrants or other searches. Instead, its Special Operations Division passed the data to field agents as tips to help them find new targets or focus existing investigations, a process approved by Justice Department lawyers. Many of those tips were classified because the DEA phone searches drew on other intelligence data.

That practice sparked a furor when the Reuters news agency reported in 2013 that the DEA trained agents to conceal the sources of those tips from judges and defense lawyers. Reuters said the tips were based on wiretaps, foreign intelligence and a DEA database of telephone calls gathered through routine subpoenas and search warrants.

As a result, "the government short-circuited any debate about the legality and wisdom of putting the call records of millions of innocent people in the hands of the DEA," American Civil Liberties Union lawyer Patrick Toomey said.

Heath's report also notes that the NSA metadata collection under Section 215 was very much modeled on the DEA's collection that began a decade earlier. If there are any differences between the two it seems that the NSA was actually much more restrained in how it used all the phone call metadata.
For one thing, DEA analysts queried their data collection far more often. The NSA said analysts searched its telephone database only about 300 times in 2012; DEA analysts routinely performed that many searches in a day, former officials said.
Again, this DEA program isn't really a new revelation, but Heath's reporting sheds a lot more light on how widespread it was and how it was used over the years.

And, also, as we are less than two months away from the big fight over renewing Section 215 of the PATRIOT Act, you can be sure that some surveillance state defender is going to cite 9/11 as a reason why we need to keep the program. Hopefully, people can remind them that it appears we had just such a program (which was even more widely used) at the time, and it did not stop 9/11.

Furthermore, Heath's reporting shows that once the program disappeared, while the DEA claims it missed the program, it was quickly able to build a more reasonable followup by just targeting specific numbers:
The DEA asked the Justice Department to restart the surveillance program in December 2013. It withdrew that request when agents came up with a new solution. Every day, the agency assembles a list of the telephone numbers its agents suspect may be tied to drug trafficking. Each day, it sends electronic subpoenas — sometimes listing more than a thousand numbers — to telephone companies seeking logs of international telephone calls linked to those numbers, two official familiar with the program said.
In other words, targeted surveillance, rather than mass surveillance. As many have been arguing for years, there's no reason why the NSA can't adopt a similar program. So don't believe the intelligence community and its apologists when they wrongly insist that such a mass surveillance program is necessary.

Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 8 Apr 2015 @ 6:23am

    Doesn't matter. Even if an attack happens every year, and we increase their powers every year after they fail to predict and stop that attack, they will still use the excuse that they need "more powers". And they still won't stop the attacks...because it's just not possible to stop something like that without also going into millions of false positives:

    https://www.schneier.com/blog/archives/2006/03/data_mining_for.html

    reply to this | link to this | view in chronology ]

  • identicon
    Michael, 8 Apr 2015 @ 6:23am

    That practice sparked a furor when the Reuters news agency reported in 2013 that the DEA trained agents to conceal the sources of those tips from judges and defense lawyers.

    At this point, don't we have a responsibility to just release everyone that the DEA has jailed in the past decade because we cannot determine if their evidence was obtained legally?

    I'm not a big fan of releasing criminals, but our criminal justice system is not supposed to work the way it has been.

    reply to this | link to this | view in chronology ]

    • icon
      pixelpusher220 (profile), 8 Apr 2015 @ 8:10am

      Re:

      Indeed. I'm amazed at how the fact that the government has been falsifying evidence as a policy hasn't basically brought every single government case to its knees.

      If we *know* the policy is to lie...how exactly can anything offered up as evidence be trusted?

      I just can't see how this isn't viewed as a fundamental threat to our system of government.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 Apr 2015 @ 8:49am

        Re: Re:

        Remember, it's the same people who falsify who determine if something can be admitted in court.
        "We got caught! What do we do?"
        "It's fine, that's inadmissible in court anyway."

        reply to this | link to this | view in chronology ]

    • icon
      Padpaw (profile), 8 Apr 2015 @ 11:31am

      Re:

      but how would the DEA keep getting their bribes from for profit prisons then if they had to have their crimes actually be held accountable instead of just ignored because they are part of the government

      reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 8 Apr 2015 @ 6:33am

    Here's former FBI boss Robert Mueller making just that argument right after the initial Snowden leaks.

    Where? (Link appears to be missing.)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Apr 2015 @ 7:11am

    The DEA?

    If only those fucking terrorists were pot-smoking hippies, we would've had 'em.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Apr 2015 @ 7:33am

    If there is anything that this proves is that mass surveillance is not about stopping terrorism, as it is about control of information.

    reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 8 Apr 2015 @ 7:39am

    If you fail to find the needle in a haystack you're looking for, the obvious solution is to increase the size of the next haystack.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Apr 2015 @ 8:36am

      Re:

      ...If you fail to find the needle in a haystack you're looking for, the obvious solution is to increase the size of the next haystack...

      There's actually a needle to find?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Apr 2015 @ 7:48am

    Why would they stop the attack?

    Never pass up a good tragedy.

    "THIS ATTACK SHOWS WHY WE NEED MORE SNOOPING!"

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Waren, 8 Apr 2015 @ 7:51am

    9/11 was an inside job

    If you still think 9/11 was done by tewworists, you have had your head up shoved completely your arse. Sorry but I'm getting tired of this "foreigners did 9/11" BS.

    https://www.youtube.com/watch?v=2O7LwySqtr4

    reply to this | link to this | view in chronology ]

  • icon
    Violynne (profile), 8 Apr 2015 @ 8:01am

    *shakes head

    The feds have been listening on "phone" calls back when Western Union delivered them as dots and dashes.

    Nothing changed then. Nothing will change now.

    Expectation of privacy over any utility is foolish.

    You'd think you'd be used to it by now.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Apr 2015 @ 8:11am

    Lets get the NSA to roll out this system on a larger scale!
    Oh the people dont like it, if only they knew we have been doing it for decades... Lets pretend we didnt!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Apr 2015 @ 8:54am

    To be fair

    To be fair, the program was set up to detect drug trafficking, not terrorism, so it's possible the system might work to identify terrorists if set up properly for that purpose. The risks to civil liberties are too great for this to be worth doing, but there is still a chance it might work.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Anonymous Coward, 8 Apr 2015 @ 9:06am

      Re: To be fair

      Two questions.

      How effective has the program been in drug trafficking (detection isn't an appropriate barometer, that's not winning that war, and neither is incarceration of low level dealers or for that matter users)?

      How does one define an algorithm to detect something that has never happened before?

      reply to this | link to this | view in chronology ]

      • icon
        beltorak (profile), 8 Apr 2015 @ 9:18am

        Re: Re: To be fair

        I don't think we can answer how effective it is in drug trafficking, since we all know the DEA has a vested interest in keeping that criminal enterprise alive, and even participates from time to time.

        I don't think I can reasonably argue that the NSA et al has a vested interest in keeping terrorists around to fly planes into our buildings. I'm not quite *that* jaded yet. I could be wrong of course....

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 Apr 2015 @ 4:06pm

        Re: Re: To be fair

        The best proxy I can think of would be a spike in the price relative to inflation coupled with a significant increase in the mass of drugs seized. If the mass of drugs seized and the spike in price happen simultaneously, it's likely the price spike is the result of drug enforcement efforts.

        This "success" would be a strange thing though. The more expensive drugs become, the more people a junkie has to rob to feed their habit. This increases my chances of being robbed. Fuck that.

        reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 8 Apr 2015 @ 10:17am

      Re: To be fair

      To be fair, the program was set up to detect drug trafficking, not terrorism ...

      They've known that terrorists had been using drug trafficking to finance their operations for a long time. Unfortunately, as was learned soon after 9/11, the LEOs were engaging in turf wars (attempting to maximize their particular agency's funding) and not sharing intel with each other (except when forced to do so, or when it served some PR purpose).

      reply to this | link to this | view in chronology ]

    • icon
      Padpaw (profile), 8 Apr 2015 @ 11:33am

      Re: To be fair

      nothing like creating a task force to fight the drug trade while supporting the opium trade with government resources and assets right?

      reply to this | link to this | view in chronology ]

  • identicon
    Ambrellite, 8 Apr 2015 @ 9:46am

    It's the status quo already

    To those who complain that stories like these are old news, remember that we only know how the government has abused its spying capabilities for decades because we're only told decades after the fact. This story is no exception. From the USAToday story: "More than a dozen current and former law enforcement and intelligence officials described the details of the Justice Department operation to USA TODAY. Most did so on the condition of anonymity because they were not authorized to publicly discuss the intelligence program, part of which remains classified."

    A controlled leak, just to offer the public a semblance of transparency while ensuring that any public outrage will take place within the context of decades-long practices whose secrecy and long duration effectively enshrines the policies as the status quo without accounting for the financial and human costs.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Apr 2015 @ 10:20am

    So no 9/11 was nothing but an excuse for them

    Well colour me sarcastically surprised

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 8 Apr 2015 @ 11:28am

    It did allow the white house to send a memo to it's staff telling them not to fly that day though.

    As well as removing most of the gold kept in the towers prior to the attack.

    They knew something was going to happen but used that knowledge to help themselves at the cost of people they were charged with protecting dying

    reply to this | link to this | view in chronology ]

  • identicon
    That One Other Not So Random Guy, 8 Apr 2015 @ 3:02pm

    How many IP's does it take to spam a comment?

    Yes inappropriately flagged 911 was an inside job comment. It sure was.

    reply to this | link to this | view in chronology ]

  • icon
    toyotabedzrock (profile), 9 Apr 2015 @ 1:34am

    Can we stop this pretense. We know Bush ignored all the warnings he was given about this group and didn't respond.

    Why is the current generation of journalists holding back for? Because he is the king? No this society doesn't work that way!

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Show Now: Takedown
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.