William Webster Meets Edward Snowden, IRTPA, Roving Wiretaps, and the Phone Dragnet

For a post on back-door searches, I’m re-reading the William Webster report on whether the FBI could have anticipated Nidal Hasan’s attack. In the light of the Edward Snowden disclosure, I’m finding there are a number of passages that read very differently (so expect this to be a series of posts).

As you read this, remember two things about Webster’s report. First, FBI and NSA’s failure to find Umar Farouk Abdulmutallab in spite of texts he sent to Anwar al-Awlaki was probably prominent on the Webster team’s mind as they completed this (and surely factors significantly in the classified version of the SSCI report on the UndieBomb). So some of the comments in the Webster report probably don’t apply directly to the circumstances of Nidal Hasan, but to that (and Webster notes that some of the topics he addresses he does because they’re central to counterterrorism approaches). And the Webster report is perhaps the most masterful example of an unclassified document that hides highly classified background.

All that said, in a section immediately following Webster’s description of Section 215, Webster discusses how Roving Wiretaps, Section 6001 of IRTPA, and Section 215 were all reauthorized in 2011.

When FISA was passed in 1978, the likely targets of counterterrorism surveillance were agents of an organized terrorist group like the Red Brigades, the Irish Republican Army, or the Palestinian terrorist organizations of that era. Given the increasing fluidity in the membership and organization of international terrorists, the FBI may not be able to ascertain a foreign terrorist’s affiliation with an international organization. Section 6001 of the Intelligence Reform and Terrorist Prevention Act of 2004 (IRTPA) allows the government to conduct surveillance on a non-U.S. person who “engages in international terrorism or activities in preparation therefor” without demonstrating an affiliation to a particular international terrorist organization. Pub. L. 108-458, § 6001, 118 Stat. 3638, 3742 (2004).

Sections 206 and 215 of the PATRIOT Act and Section 6001 of IRTPA were scheduled to “sunset” on December 31, 2009. In May 2011, after an interim extension, Congress extended the provisions until June 1, 2015, without amendment. [my emphasis]

I find this interesting, first of all, because it doesn’t mention the Pen Register and Lone Wolf language that also got reauthorized in 2011 (suggesting he lumped these three together for a specific reason). And because it puts the language, “engages in international terrorism or activities in preparation therefor” together with roving wiretaps (“continuous electronic surveillance as a target moves from one device to another”), and Section 215, which we now know includes the phone dragnet.

As we’ve seen, DiFi’s Fake FISA Fix includes the language from IRTPA, on “preparation therefor,” which I thought was an expansion of potential targets but which I presume now is what they’ve been using all along. While I don’t recall either the White Paper nor Claire Eagan’s language using that language, I’m wondering whether some underlying opinion does.

Now consider how the roving wiretap goes with this. One reason — probably the biggest reason — they need all phone records in the US is so they can use it to find targets as they move from one burner cell phone to another. Indeed, one passage from DiFi’s Fake FISA Fix seems specifically designed to authorize this kind of search.

(C) to or from any selector reasonably linked to the selector used to perform the query, in accordance with the court approved minimization procedures required under subsection (g).

That language “reasonably linked” surely invokes the process of using algorithms to match calling patterns to calling patterns to find a target’s new phone. And note this is the only query that mentions minimization procedures, so the Court must have imposed certain rules about how you treat a new “burner” phone ID until such time as you’ve proven it actually is linked to the first one.

What’s interesting, though, is that the Webster report also lumps roving wiretaps in with this. What’s at issue in Nidal Hasan’s case was effectively roving electronic communication; he emailed Awlaki from several different email addresses and one of the problems FBI had was in pulling up Hasan’s communications under both identities (you can see how this relates to the back door loophole). But the inclusion of roving wiretaps here seems to suggest the possibility that a court has used the existing of roving wiretap approval for the use of the phone dragnet to find burner phones (which shouldn’t have been an issue in the Nidal Hasan case but probably was for Abdulmutallab).

One more comment? The notion that identifying an Al Qaeda target is any harder than identifying an IRA-affiliate is utter nonsense. If anything, US-based IRA affiliates were harder to identify because they were completely and utterly socially acceptable. But I guess such myths are important for people advocating more dragnet.

1 reply
  1. Stephen says:

    @emptywheel: “The notion that identifying an Al Qaeda target is any harder than identifying an IRA-affiliate is utter nonsense. If anything, US-based IRA affiliates were harder to identify because they were completely and utterly socially acceptable.”

    I would take issue with part of that statement. It was not so much that “US-based IRA affiliates” were “completely and utterly socially acceptable” (vis-a-vis Al Qaeda ones, presumably) but that their AIMS and OBJECTIVES were socially acceptable to many in the United States, at least back before 9/11. The US has a long history of funding groups which engaged in the sort of activities which would now get Al Qaeda a visit from a Predator drone. When the US’s own aims and objective change (as they did, for example, after 9/11, at least for Muslim terrorist groups), then the very people who were social acceptable PRIOR to that–eg the Taliban of Afghanistan–suddenly become persona non grata.

    On that score the IRA would doubtless have suffered the same fate as Al Qaeda had they started biting the hand that was funding them by doing in the US what they were doing in the UK (and Northern Ireland in particular): blowing up bits and pieces of US real estate, along with their inhabitants.

    In other words, if what Al Qaeda did was wrong, so were the actions of the IRA; and to say that their “US-based…affiliates” as socially acceptable is no more than what Al Qaeda itself doubtless receives in those countries where its views are in synch with those of important segments of the local population. The current US response is to aim drones at those countries. Imagine the response in the United States if the British had decided to send the Royal Air Force across the Atlantic to blow up IRA sympathisers in places like Boston and New York.

    On further point. If you really want to be controversial go read America’s own Declaration of Independence by the reflected light of 9/11 and ask yourself this question: is that or is that not the manifesto of a band of would-be terrorists?

    The fact that:

    a) the band in question was “socially acceptable” to other Americans (especially those of similar sympathies); and

    b) The offences that document alleges against the British were all true;

    does not of itself justify the actions they afterwards took, at least from the perspective of the British. In the latter’s eyes, the American colonists who rebelled against them were the Al Qaeda of their day. Needless to say their response was just as extreme as the one that the Bush Administration took following 9/11. Had they handled it differently America might still be part of the British fold, just as had Bush responded to 9/11 some of the unforeseen consequences of that action (eg from the ongoing potential for civil war in Iraq to a nuclear North Korea and would-be nuclear Iran) might not now be happening.

Comments are closed.