Graph from New America Foundation analysis of terrorism cases

A policy institute based in Washington, DC, has released an analysis of hundreds of terrorism cases, which concludes that the National Security Agency’s collection of phone records has had “no discernible impact on preventing acts of terrorism.”

According to the analysis by the New America Foundation, “An in-depth analysis of 225 individuals recruited by al-Qaeda or a like-minded group or inspired by al-Qaeda’s ideology, and charged in the United States with an act of terrorism since 9/11, demonstrates that traditional investigative methods, such as the use of informants, tips from local communities, and targeted intelligence operations, provided the initial impetus for investigations in the majority of cases, while the contribution of NSA’s bulk surveillance programs to these cases was minimal.”

Telephone metadata collection “played an identifiable role in initiating, at most, 1.8 percent of these cases.”

Initially, when revelations from disclosures from former NSA contractor Edward Snowden began to be published, US intelligence agency officials responded by claiming the program collecting the phone records of hundreds of millions of Americans had helped thwart 54 terrorist plots. That fabricated statistic gradually unraveled, especially after Senator Patrick Leahy confronted NSA director Gen. Keith Alexander during a Senate Judiciary Committee hearing.

He said the statistic was “plainly wrong, but we still get it in the letters to members of Congress. We get it in statements.” These weren’t all plots and they weren’t all thwarted. The American people are getting left with an inaccurate impression of the effectiveness of the NSA programs, he added.

The NSA now cites no terrorism cases or one terrorism case when defending this surveillance program. Except, as the New America Foundation demonstrates, this single case does not come close to justifying the program.

…[O]ur examination of the role of the database of U.S. citizens’ telephone metadata in the single plot the government uses to justify the importance of the program – that of Basaaly Moalin, a San Diego cabdriver who in 2007 and 2008 provided $8,500 to al-Shabaab, al-Qaeda’s affiliate in Somalia – calls into question the necessity of the Section 215 bulk collection program. According to the government, the database of American phone metadata allows intelligence authorities to quickly circumvent the traditional burden of proof associated with criminal warrants, thus allowing them to “connect the dots” faster and prevent future 9/11-scale attacks. Yet in the Moalin case, after using the NSA’s phone database to link a number in Somalia to Moalin, the FBI waited two months to begin an investigation and wiretap his phone. Although it’s unclear why there was a delay between the NSA tip and the FBI wiretapping, court documents show there was a two-month period in which the FBI was not monitoring Moalin’s calls, despite official statements that the bureau had Moalin’s phone number and had identified him. This undercuts the government’s theory that the database of Americans’ telephone metadata is necessary to expedite the investigative process, since it clearly didn’t expedite the process in the single case the government uses to extol its virtues…

The review also found “government officials” had “exaggerated the role of the NSA in the cases against David Coleman Headley and Najibullah Zazi, and the significance of the threat posed by a notional plot to bomb the New York Stock Exchange.” This has been known for some time by journalists who took the time to deconstruct statements of officials.

Judge Richard Leon recognized this when he ruled this program was “likely unconstitutional.”

“Given the limited record before me at this point in the litigation—most notably, the utter lack of evidence that a terrorist attack has ever been prevented searching the NSA database was faster than other investigative tactics—I have serious doubts about the efficacy of the metadata collection in cases involving imminent threats of terrorism,” Leon wrote in his ruling.

Before the year was over, another judge, William H. Pauley, dismissed a similar lawsuit and found the collection of phone records was “lawful.” But he showed clear deference to the government and refused to challenge the flawed claims about the efficacy of the program in fighting terrorism.

Significantly, the New America Foundation’s analysis found, “In at least 48 of the 225 cases in our database, evidence derived from a regular FISA warrant was used by the government in court; there were at least three other cases where the defendant had reason to believe the government had used FISA evidence and filed a motion to compel disclosure of that evidence.”

“Although these court documents show that the government used FISA authorities to investigate these individuals, it is unclear at what point in the investigations it was used.”

Maybe FISA authorities were not needed, but what this means is nearly 80 percent of terrorism cases involved evidence collected without authority from FISA.

Under what law was evidence obtained? What oversight mechanisms governed collection? What gave the government authority to conduct surveillance?

Furthermore, was parallel construction employed before going to the FISA court to obtain a warrant from the secret surveillance court? Did agents begin to build a case illegally and then go to the court to get a warrant so they could go back and collect evidence legally?

The graph (pictured at the top of this post) shows, for a substantial portion of cases, how they were initiated is unclear. Community/family tips also played a greater role in helping to build terrorism cases than indiscriminate collection of Americans’ phone records.

The New America Foundation highlighted how the NSA has “deliberately” tried to portray the issue as critical to “preventing future 9/11s.”

The administration has also deliberately tried to present the issue as one of preventing future 9/11s, taking advantage of the emotional resonances of that day. However, our review suggests that this rhetorical framing does not in any way accurately reflect the character of the plots that might be cited to justify the NSA programs. NSA talking points acquired by Al Jazeera through a Freedom of Information Act request, for example, demonstrate that the administration considered the 9/11 attacks a key point in its defense of the NSA programs. The talking points included statements such as, “NSA AND ITS PARTNERS MUST MAKE SURE WE CONNECT THE DOTS SO THAT THE NATION IS NEVER ATTACKED AGAIN LIKE IT WAS ON 9/11.” Spokespeople were also encouraged to use “SOUND BITES THAT RESONATE,” specifically, “I MUCH PREFER TO BE HERE TODAY EXPLAINING THESE PROGRAMS, THAN EXPLAINING ANOTHER 9/11 EVENT THAT WE WERE NOT ABLE TO PREVENT.”

Gen. Alexander has claimed, prior to 9/11, the NSA could not connect the dots because it did not have the dots. This is why it needs the bulk metadata program. But the government did not fail to stop hijacker Khalid al-Mihdhar because it did not have this program. “The government missed multiple opportunities to catch Mihdhar.”

In effect, the NSA is exploiting a major policy failure that led to a terrorist attack in order to justify mass surveillance. Had information been shared and had agencies responded to warnings of impending attacks, it is possible Mihdhar could have been stopped.

“The overall problem for US counterterrorism officials is not that they need the information from the bulk collection of phone data, but that they don’t sufficiently understand or widely share the information they already possess that is derived from conventional law enforcement and intelligence techniques, the study concludes. It cites a number of recent terrorism attacks where this has been the case: Headley, Maj. Nidal Hasan, Umar Farouq Abdulmutallab, Carlos Bledsoe.

This deconstruction of false statements has had an impact. Now, intelligence officials, like former NSA deputy director John Inglis (who retired on Friday), fall back on the argument that the program is an “insurance policy.”

…The 215 [phone records collection under PATRIOT Act] is designed to essentially cover a seam that we don’t know any other way to cover. There are other implementations of the 215 program. The government doesn’t need to hold the data, it could be held by a third party. You could compel others to essentially do the kind of search that today NSA is authorized and charged to undertake. But the question remains as to whether you’re going to have a capability to find something that is the connection of a foreign plot to a domestic extension of that plot. I have an insurance policy on my house. I’m happy to say that I’ve not collected on that insurance policy, at least for purposes of fire or significant damage in the 25 years I’ve lived in that house…

This is far from consistent, when considering prior statements by officials on the value of the program. It also is not much different from the “peace of mind” metric, which Director of National Intelligence James Clapper has said is more important than whether the program has been effective.

More than six months later, officials have retreated to we must have the phone records of all Americans in a database because it helps us sleep at night. Which proves there is no actual legitimate security justification for collecting and storing the phone records of all Americans.

The only argument for continuing this program is built on an unflinching belief in subjecting a population to mass surveillance. And, when Obama says he will continue it in some form on Friday, he will be arguing for the preservation of a clearly authoritarian program.