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| NSA Headquarters, Ft. Meade Maryland |
GUEST BLOG—By Peter Bergen, David Sterman, Emily
Schneider, Bailey Cahall, New America Foundation.
Note: This essay is reposted from the New America
Foundation blog (www.newamerica.net). It appeared January 13, 2014. For a complete copy of the report go to the
following address:
http://www.newamerica.net/sites/newamerica.net/files/policydocs/Bergen_NAF_NSA%20Surveillance_1_0.pdf
On June 5, 2013, the Guardian broke the first story
in what would become a flood of revelations regarding the extent and nature of
the NSA’s surveillance programs. Facing
an uproar over the threat such programs posed to privacy, the Obama
administration scrambled to defend them as legal and essential to U.S. national
security and counterterrorism.
 |
| Journalist Peter Bergen |
Rep. Mike Rogers (R-Mich.),
chairman of the House Permanent Select Committee on Intelligence, said on the
House floor in July that “54 times [the NSA programs] stopped and thwarted
terrorist attacks both here and in Europe – saving real lives.”
However, our review of the
government’s claims about the role that NSA “bulk” surveillance of phone and
email communications records has had in keeping the United States safe from
terrorism shows that these claims are overblown and even misleading.
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. Indeed, the controversial bulk collection of American
telephone metadata, which includes the telephone numbers that originate and
receive calls, as well as the time and date of those calls but not their
content, under Section 215 of the USA PATRIOT Act, appears to have played an
identifiable role in initiating, at most, 1.8 percent of these cases. NSA
programs involving the surveillance of non-U.S. persons outside of the United
States under Section 702 of the FISA Amendments Act played a role in 4.4
percent of the terrorism cases we examined, and NSA surveillance under an
unidentified authority played a role in 1.3 percent of the cases we examined.
Regular FISA warrants not
issued in connection with Section 215 or Section 702, which are the traditional
means for investigating foreign persons, were used in at least 48 (21 percent)
of the cases we looked at, although it’s unclear whether these warrants played
an initiating role or were used at a later point in the investigation. (Click
on the link to go to a database of all 225 individuals, complete with additional
details about them and the government’s investigations of these cases:
http://natsec.newamerica.net/nsa/analysis).
Surveillance of American
phone metadata has had no discernible impact on preventing acts of terrorism
and only the most marginal of impacts on preventing terrorist-related activity,
such as fundraising for a terrorist group. Furthermore, our 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.
Additionally, a careful
review of three of the key terrorism cases the government has cited to defend
NSA bulk surveillance programs reveals that government officials have
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.
In 28 percent of the cases
we reviewed, court records and public reporting do not identify which specific
methods initiated the investigation. These cases, involving 62 individuals, may
have been initiated by an undercover informant, an undercover officer, a family
member tip, other traditional law enforcement methods, CIA- or FBI-generated
intelligence, NSA surveillance of some kind, or any number of other methods. In
23 of these 62 cases (37 percent), an informant was used. However, we were
unable to determine whether the informant initiated the investigation or was
used after the investigation was initiated as a result of the use of some other
investigative means. Some of these cases may also be too recent to have
developed a public record large enough to identify which investigative tools
were used.
We have also identified
three additional plots that the government has not publicly claimed as NSA
successes, but in which court records and public reporting suggest the NSA had
a role. However, it is not clear whether any of those three cases involved bulk
surveillance programs.
Finally, the overall
problem for U.S. counterterrorism officials is not that they need vaster
amounts of information from the bulk surveillance programs, but that they don’t
sufficiently understand or widely share the information they already possess
that was derived from conventional law enforcement and intelligence techniques.
This was true for two of the 9/11 hijackers who were known to be in the United
States before the attacks on New York and Washington, as well as with the case
of Chicago resident David Coleman Headley, who helped plan the 2008 terrorist
attacks in Mumbai, and it is the unfortunate pattern we have also seen in several
other significant terrorism cases.
The above is an overview by
the authors of the full report. For more
on this article:
For more on New America
Foundation:
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About New America
Foundation
The New America Foundation is a nonprofit,
nonpartisan public policy institute that invests in new thinkers and new ideas
to address the next generation of challenges facing the United States. |
| Also by Peter Bergen |
New America emphasizes work that is responsive to
the changing conditions and problems of our 21st Century information-age
economy -- an era shaped by transforming innovation and wealth creation, but
also by shortened job tenures, longer life spans, mobile capital, financial imbalances
and rising inequality.
The foundation's mission is animated by the American
ideal that each generation will live better than the last. That ideal is today
under strain. Our education and health care systems are struggling with
problems of quality, cost and access. The country requires creative means to
address its fiscal challenges and pay for needed public, social and
environmental investments. Abroad, the United States has yet to fashion
sustainable foreign and defense policies that will protect its citizens and
interests in a rapidly integrating world.
Too often, these challenges have proven impervious
to conventional party politics and incremental proposals. With an emphasis on
big ideas, impartial analysis and pragmatic solutions, New America invests in
outstanding individuals whose ability to communicate to wide and influential
audiences can change the country's policy discourse in critical areas, bringing
promising new ideas and debates to the fore.
Launched in 1999, the foundation was guided through
a period of rapid growth by founding president Ted Halstead. The institute is
now led by President Anne-Marie Slaughter and an outstanding Board of
Directors, chaired by Eric Schmidt.
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