Mike Rogers: As Confused about Telecom Surveillance as He Is about Drone Strikes

Congressman Mike Rogers, like most members of the ranking Gang of Four members of the Intelligence Committees, has long made obviously false claims about the drone program, such as that public reports of civilian casualties (which were being misreported in intelligence reports) were overstated.

That’s just one of the many reasons I was dubious about this report, claiming that, well … it’s not entirely clear what it claimed. Here’s the lead two paragraphs:

A secret U.S. intelligence program to collect emails that is at the heart of an uproar over government surveillance helped foil an Islamist militant plot to bomb the New York City subway system in 2009, U.S. government sources said on Friday.

The sources said Representative Mike Rogers, chairman of the House of Representatives Intelligence Committee, was talking about a plot hatched by Najibullah Zazi, an Afghan-born U.S. resident, when he said on Thursday that such surveillance had helped thwart a significant terrorist plot in recent years.

These paragraphs suggest that we found Najibullah Zazi — pretty clearly the most successful effort to prevent a known terrorist attack since 9/11 — because of one of the programs the Guardian (and WaPo) broke over the last few days.

Some paragraphs down, the piece explains the program in question was the “one that collected email data on foreign intelligence suspects.” Which is weird, because we’ve learned about a program to collect email data on everyone in the United States, not “foreign intelligence suspects.” And a program to collect a range of telecom content on known foreign intelligence suspects and their associates. Already, Reuters’ sources seemed confused.

The next paragraph describes the PRISM program by name.

The Washington Post and Britain’s Guardian newspaper on Thursday published top-secret information from inside NSA that described how the agency gathered masses of email data from prominent Internet firms, including Google, Facebook and Apple under the PRISM program.

And the rest of the report traces what former Agent and now FBI mouthpiece CBS pundit John Miller had to say.

All of that might lead you to believe this is a story reporting that we had foiled Zazi’s plot using PRISM, the program that involves the NSA accessing bulk data on everything these foreign targets were doing. But even that is problematic, since Zazi is a US person, whose communications are supposedly excluded from this program.

Then there are the problems with the actual content of this.

Dianne Feinstein, who unlike Rogers, was on the Gang of Four in 2009 and therefore privy to the most comprehensive intelligence, and who is pretty systematic about boasting how the intelligence programs she has approved have netted terrorists, has (as far as I’m aware) never made such a claim. As far as I’m aware, she has never, not even during the FISA Amendments Act extension, boasted that it got Zazi (she usually vaguely points to a list of 100 people we’ve caught and vaguely said some of them were caught using FAA). Mind you, DiFi has boasted about how central Section 215 was to the ongoing investigation into Zazi several months after he was caught. Even assuming that wasn’t just surveillance re-approval season bluster, that’s the other program we’re talking about, Section 215, not PRISM. Furthermore, it’s possible that she was so intent on tying 215 to Zazi solely so FBI could identify more entirely innocent people to interrogate, as they had 3 apparently innocent people already.

Then there’s the public reporting that contradicts what I assume to be Mike Rogers’ staffers’ claim. This NPR piece, obviously designed to showcase all the new surveillance tools used to nab Zazi, makes no mention of anything beyond roving NSA wiretaps.

The wiretap used on Zazi was different. In his case, officials tell NPR they asked a judge for what’s called a roving FISA wire tap. (FISA stands for Foreign Intelligence Surveillance Act.)


FISA wiretaps are meant to be aimed at foreign targets — people who work for or are representing a foreign entity. FISA wiretaps used to be all about espionage, but, according to former FBI Assistant Director Tom Fuentes, that changed to include terrorism. The foreign entity in this case would be a group like al-Qaida.

In fact, NPR attributed our discovery of Zazi to a tip from Pakistan.

FISA wiretaps are meant to be aimed at foreign targets — people who work for or are representing a foreign entity. FISA wiretaps used to be all about espionage, but, according to former FBI Assistant Director Tom Fuentes, that changed to include terrorism. The foreign entity in this case would be a group like al-Qaida.

But that’s not all. This NPR piece bragging about all the new toys deployed to catch Zazi makes it clear that the first tip-off came from Pakistan.

Sources say officials acted after Pakistani intelligence allegedly told them that Zazi had met with al-Qaida operatives there.

The AP’s Adam Goldman says even that is not right. The tip came from the Brits, not Pakistan.

Let’s be clear Operation Pathway in London uncovered email that thwarted Najibullah Zazi plot in 2009. Public docs available….

Brits got this email –[email protected] — and gave it to USG. Zazi sent urgent message to that email. Alarms went off. See PACER

This was not PRISM identifying associations. It was the Brits identifying the email of a Pakistani bomber, which we then tracked right to Zazi’s desperate requests for bomb-making help.

But there’s one more problem with Mike Rogers’ story about Zazi. Look at that second paragraph again.

The sources said Representative Mike Rogers, chairman of the House of Representatives Intelligence Committee, was talking about a plot hatched by Najibullah Zazi, an Afghan-born U.S. resident, when he said on Thursday that such surveillance had helped thwart a significant terrorist plot in recent years.

This is a reference to when, sometime well before 2PM on Thursday, Rogers said the Section 215 dragnet collection of US call data had thwarted a plot. PRISM wasn’t broken until a number of hours later.

So this article suggests (though not consistently–Rogers’ anonymous sources seem confused!) that PRISM busted Zazi, when chronologically, it must be Section 215 he’s thinking of.

The record doesn’t appear to support that either. More likely, he’s remembering that when the Intelligence Committees renewed the PATRIOT Act in 2009, the FBI and others boasted that they were using Section 215 in interesting ways.

But again–the public record doesn’t necessarily suggest that was anything more than 3 innocent Muslims buying haircare products.

Maybe there’s more to this. But until there is, the record suggests that 1) Rogers’ staffers (or Reuters’ other sources) are hopelessly confused, and can’t keep these programs separate and 2) that Rogers has a fundamentally different understanding of what happened than even DOJ suggested in their court filings.

Rogers is confused. And he’s what counts as oversight on these dragnet programs.

Update: Thanks to Ben Smith for doing the legwork to prove how silly Rogers’ claims are.

The path to his capture, according to the public records, began in April 2009, when British authorities arrested several suspected terrorists. According to a 2010 rulingfrom Britain’s Special Immigration Appeals Commission, one of the suspects’ computers included email correspondence with an address in Pakistan.

The open case is founded upon a series of emails exchanged between a Pakistani registered email account [email protected] and an email account admittedly used by Naseer [email protected] between 30 November 2008 and 3 April 2009. The Security Service’s assessment is that the user of the sana_pakhtana account was an Al Qaeda associate…”

“For reasons which are wholly set out in the closed judgment, we are sure satisfied to the criminal standard that the user of the sana_pakhtana account was an Al Qaeda associate,” the British court wrote.

Later that year, according to a transcript of Zazi’s July, 2011 trial, Zazi emailed his al Qaeda handler in Pakistan for help with the recipe for his bombs. He sent his inquiry to the same email address: [email protected]

An FBI agent, Eric Jurgenson, testified, “I was notified, I should say. My office was in receipt of several e-mail messages, e-mail communications.” Those emails — from Zazi to the same [email protected] — “led to the investigation,” he testified.

Update: Go figure. NYT has a story that, like Reuters, conflates 215 and PRISM and then, without apparently mastering the difference between the two or known facts of Zazi’s case, declares “Victory!.” After mentioning stockpiling of email, it says,

To defenders of the N.S.A., the Zazi case underscores how the agency’s Internet surveillance system, called Prism, which was set up over the past decade to collect data from online providers of e-mail and chat services, has yielded concrete results.

“We were able to glean critical information,” said a senior intelligence official, who spoke on the condition of anonymity. “It was through an e-mail correspondence that we had access to only through Prism.”

Except we know the email correspondance could have been available via FISA under the rules in place in 1998. Did they use fancy software? Maybe, but they certainly didn’t need it.

Later, it admits it doesn’t know which program, if any, foiled which plot, if any.

An administration official said Friday that agencies were evaluating whether they could publicly identify particular terrorism cases that came to the government’s attention through the telephone or Internet programs.

Representative Mike Rogers, the Michigan Republican who is chairman of the House intelligence committee, said Thursday that the program “was used to stop a terrorist attack.” He did not identify the plot, or explain whether the call logs in the case would have been unavailable by ordinary subpoenas.

Then, later, it cites DiFi’s (also dubious) list of plots foiled by FAA. Zazi’s plot is not included.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

26 replies
  1. What Constitution? says:

    This web of inconsistencies, reeking of deceit, reminds one of a quaint bit of “legal advice” rumored to be used in counseling clients. It goes something like this: “tell the truth, and not necessarily just because it’s the right thing to do, but at least because it’s the only story you can tell repeatedly without tripping up by failing to recollect what you said before.” Seems resolutely appropriate as the “spokespersons” scurry to explain why the “real” issue here isn’t whether the actions of the government have been illegal, it’s whether the disclosure of that illegality is some sort of “damaging leak”.

  2. orionATL says:

    Very, very nice;

    Very, very precise!

    Journalism – interpretive journalism – as it should be practiced.

    This essay gets at the thing that bothers me a lot about this massive data collection activity – authorized by the president and a secret court operating as nothing more than a star tribunal (that one’s for you, reggie) and conducted, illegally, by an agency of the u.s. dept of defense operating illegally within the united states.

    Is it really effective?

    Or is it the result of reflexive legislating and presidenting to avoid any possible future blame.

    Does our president talk with us about that and our choices?

    Does the speaker of the house talk with us about that and our choices?

    Do members of the house or senate intelligence committees talk with us about that and our choices?

    This universal electronic spying activity cannot be preventive unless and until untilthere is prior human input. data collection can never begin until after some entity mentions a name, group of names, specific event, etc., and that entity’s “data” is relayed to nsa. Nsa operates as the blind man with acute hearing in the american “security” bureaucracy.

    Once names (or other denominators) are known, then nsa can get to work – unless.

    Unless – they collect all call data, all the time and review that data retroactively as law enforcement/security agencies demand. This is apparently the current strategy.

    Is it inefficient, ineffective, and bordering on stupid? I would not be surprised, based not on my meager knowledge of electronic spying, but on my decades of watching u.s. security bureaucracies fuck things up – over and over again.

    Example: anybody still living who remembers that after 1989, we citizens suddenly discovered that the cia had grossly, grotesquely, falsely overestimated the military and nuclear weapons capacity of the dying soviet union at least thru the ’70’s and ’80’s?

  3. myiq2xu says:

    I’m sure if we threw out the Bill of Rights the cops would catch more criminals. You can’t make an omelette without breaking some laws.

  4. ess emm says:

    But instead of adding a back door to their servers, the companies were essentially asked to erect a locked mailbox and give the government the key, people briefed on the negotiations said. Facebook, for instance, built such a system for requesting and sharing the information, they said.

    contrasted with

    We had not heard of a program called Prism until yesterday


    Obama admits what he’s doing and says in his Father Knows Best voice that he’s struck the right balance. And the Internet firms try to deny everything instead of squealing that the USG held a gun to their head. What game did every single one of the internet firms think they were playing? And then the USG completely pulls the rug out from under that little charade.

    And this is happening because the USG is untouchable and the billionaire fatcats arent?

  5. TomVet says:

    No one has mentioned this bit of news which appeared in Alternet on Wednesday, before Glenn Greenwald’s story on Prism, and which puts Google’s claims to know nothing in a whole new light.
    Here’s just a brief sample:

    “Two decades ago, federal police and intelligence agencies asked Silicon Valley to build trap doors that they could access in any new electronic device and the industry complied. After the 2001 attacks by al-Qaeda, telecom firms gave the National Security Agency access to key nodes so it could capture all Internet traffic. The Bush administration’s installation of those taps on AT&T’s network became known as the ‘warrantless wiretap’ scandal.”

    What a wondrous web of lies they are weaving!

  6. GKJames says:

    Best guess? Rogers & Co. are dim. NYT, on the other hand, is so embedded with whoever’s in power that what looks like confusion could well be deliberate massaging of the public on the Administration’s behalf.

  7. Karl Idsvoog says:

    And how vigorously are local reporters from his district questioning him about such misstatements? Probably not at all.

    When journalism fails, bad things happen

  8. stryx says:

    Speaking of NPR, Cindy Cohn of EFF gave a fine interview on ATC yesterday:
    It’s pretty well established that a bigger haystack doesn’t make it easier to find needles. It makes it harder. So again, I think there is a dream here and there’s some magical thinking that somehow the government can make us safer if we give up all of our privacy.

    But I think it’s a false choice. And the fact that the government won’t tell us what they’re doing and how they’re doing it and why they’re doing it ought to raise eyebrows even further.

    Cohn and EFF have been in court with the Feds over these specific issues for quite some time, and it will be very interesting how things develop now that, what- the cat is out of the bag or the horse has left the barn?

  9. Frank33 says:

    Great Scoop by Wheelzilla.

    And even Politico wants to help expose the rascals, and pretend they are actually journalists. They have an old Bushie memo from NSA.

    “Make no mistake, NSA can and will perform its missions consistent with the Fourth Amendment and all applicable laws. But senior leadership must understand that today’s and tomorrow’s mission will demand a powerful, permanent presence on a global telecommunications network that will host the ‘protected’ communications of Americans as well as the targeted communications of adversaries.”…

    There are a wide variety of threats that are threatening Banksters, Bilderbergers, and other oligarchs. Occupy, Internet freedom, Bill of Rights, Gen Greenwald, Sibel Edmonds…

    “Information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats.”

    I do believe NSA, itself got hacked in 2000, according to this.

    “The need for action was underscored in January 2000 when NSA experienced a catastrophic network outage for 3 ½ days,” the memo said. “The outage greatly reduced the signals intelligence information available to national decision makers and military commanders. As one result, the president’s daily briefing — 60 percent of which is normally based on SIGINT — was reduced to a small portion of its typical size.”


  10. Frank33 says:

    Remember 1999, Clinton Impeachment, Al Qaeda in Bosnia, first NSA/Microsoft Windows Backdoor discovered.

    A careless mistake by Microsoft programmers has revealed that special access codes prepared by the US National Security Agency have been secretly built into Windows. The NSA access system is built into every version of the Windows operating system now in use, except early releases of Windows 95 (and its predecessors)…

    According to Fernandez of Cryptonym, the result of having the secret key inside your Windows operating system “is that it is tremendously easier for the NSA to load unauthorized security services on all copies of Microsoft Windows, and once these security services are loaded, they can effectively compromise your entire operating system“. The NSA key is contained inside all versions of Windows from Windows 95 OSR2 onwards.

  11. Arbusto says:

    Tens of billions worth of software and hardware to tract terrorists and their financial network and supporters. So how is it that with all the assassinations and extrajudicial killings, money still flows to these groups and the supporters in Saudi Arabia and elsewhere keep on dancing while the USofA moves toward a police state. No one in government will admit that while OSB is dead, he grossly exceeded his expectations impacting the USofA

  12. ess emm says:


    Guardian publishes new slide. Looking at the arrows pointing from the redacted program names to the map, it looks like intel collections focused on Venezuela, Kenya and….Sri Lanka?

    BTW, Greenwald defense is right: These are NSA documents! (Although it appears there are more than one powerpoint show)

  13. Hmmm says:

    Richard Brautigan wrote:

    I like to think (and
    the sooner the better!)
    of a cybernetic meadow
    where mammals and computers
    live together in mutually
    programming harmony
    like pure water
    touching clear sky.

    I like to think
    (right now, please!)
    of a cybernetic forest
    filled with pines and electronics
    where deer stroll peacefully
    past computers
    as if they were flowers
    with spinning blossoms.

    I like to think
    (it has to be!)
    of a cybernetic ecology
    where we are free of our labors
    and joined back to nature,
    returned to our mammal
    brothers and sisters,
    and all watched over
    by machines of loving grace.

    What’s the word for the opposite of ‘prescient’?

  14. newz4all says:


    Boundless Informant: the NSA’s secret tool to track global surveillance data

    Revealed: The NSA’s powerful tool for cataloguing data – including figures on US collection


    Boundless Informant NSA data-mining tool – four key slides

    The top-secret Boundless Informant tool details and maps by country the voluminous amount of information it collects from computer and telephone networks


    Boundless Informant: NSA explainer – full document text

    View the three-page explanation document, which showed the NSA collected almost 3 billion pieces of intelligence from US computer networks over a 30-day period ending in March


  15. newz4all says:

    NYT Gives Damning-With-Faintest-Praise-Possible Profile of Glenn Greenwald After Surveillance Scoops

    The article, remarkably, sidesteps the elephant in the room: what does this Administration conduct reveal about our democracy and our rights? The Times authors are more interested in telling us about how Greenwald had get down the curve on encryption tradecraft to handle these national security stories.

    The Times, sadly, has come a long and not at all good way since the days of the Pentagon Papers. And it isn’t just the famed l’affaire Judith Miller. Recall that the Times held off on publishing information about the cheney/bush administration warrantless wiretap program over a year, and hemmed and hawed when pressed on the question of whether it made the decision to hold back the story prior to the 2004 election (eventual answer, yes, with some less than persuasive justifications).

    Given the Times’ greater fealty to Obama than to Bush, and the dearth of any reliable American media outlets to its left, no wonder Greenwald’s source(s) came to him and the Guardian. The Times’ reluctance to give Greenwald all the credit he is due reflects its inability to face up to what his scoops say about the sorry state of American journalism.


  16. What Constitution? says:

    Hey! I just played “jihad” in a Words With Friends game. Should I be worried, even if I did get a double word score? Am I tracked now?

  17. Procopius says:

    I just looked up “Carnivore,” the FBI program that raised concerns in the hacker community when it was first revealed. I was surprised to find Wikipedia puts its date as 1997. I could have sworn it was earlier. I’m pretty sure there were collection programs in place back in the 80s, as email was just beginning to become popular and most online activity was still done on usenet, or using Gopher and WAIS. We should have realized what would happen when people were proclaiming, “Computer power to the people!”

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