NSA Failures and Terror Successes Drive the Dragnet

Ryan Lizza has a long review of the dragnet programs. As far as the phone dragnet, it’s a great overview. It’s weaker on NSA’s content collection (in a piece focusing on Ron Wyden, it doesn’t mention back door searches) and far weaker on the Internet dragnet, the technical and legal issues surrounding which he seems to misunderstand on several levels. It probably oversells Wyden’s role in bringing pressure on the programs and treats Matt Olsen’s claims about his own role uncritically (that may arise out of Lizza’s incomplete understanding of where the dragnet has gone). Nevertheless, it is well worth a read.

I think it most valuable for the depiction of Obama’s role in the dragnet and its description of the ties between the war on terror and perceptions about the dragnet. Take this account of Obama’s decision not to embrace transparency during the PATRIOT Act Reauthorization in 2009-10. Lizza describes Wyden pressuring Obama to make information on the dragnets available to Congress and the public (we know HJC members Jerry Nadler, John Conyers, and Bobby Scott were lobbying as well, and I’ve heard that Silvestre Reyes favored disclosure far more than anyone else in a Ranking Intelligence Committee position).

But then the UndieBomb attack happened.

The debate ended on Christmas Day, 2009, when Umar Farouk Abdulmutallab, a twenty-three-year-old Nigerian man, on a flight from Amsterdam to Detroit, tried to detonate a bomb hidden in his underwear as the plane landed. Although he burned the wall of the airplane’s cabin—and his genitals—he failed to set off the device, a nonmetallic bomb made by Yemeni terrorists. Many intelligence officials said that the underwear bomber was a turning point for Obama.

“The White House people felt it in their gut with a visceralness that they did not before,” Michael Leiter, who was then the director of the National Counterterrorism Center, said. The center was sharply criticized for not detecting the attack. “It’s not that they thought terrorism was over and it was done with,” Leiter said, “but until you experience your first concrete attack on the homeland, not to mention one that becomes a huge political firestorm—that changes your outlook really quickly.” He added, “It encouraged them to be more aggressive with strikes”—drone attacks in Yemen and Pakistan—“and even stronger supporters of maintaining things like the Patriot Act.”

Obama also became more determined to keep the programs secret. On January 5, 2010, Holder informed Wyden that the Administration wouldn’t reveal to the public details about the N.S.A.’s programs. He wrote, “The Intelligence Community has determined that information that would confirm or suggest that the United States engages in bulk records collection under Section 215, including that the Foreign Intelligence Surveillance Court (fisc) permits the collection of ‘large amounts of information’ that includes ‘significant amounts of information about U.S. Persons,’ must remain classified.” Wyden, in his reply to Holder a few weeks later, expressed his disappointment with the letter: “It did not mention the need to weigh national security interests against the public’s right to know, or acknowledge the privacy impact of relying on legal authorities that are being interpreted much more broadly than most Americans realize.” He said that “senior policymakers are generally deferring to intelligence officials on the handling of this issue.”

Curiously, Lizza makes no mention of Nidal Hasan who, unlike Umar Farouk Abdulmutallab, actually succeeded in his attack, and like Abdulmutallab, had had communications with Anwar al-Awlaki intercepted by the NSA (and FBI) leading up to the attack. Weeks before the UndieBomb attack, Pete Hoekstra had already started criticizing the Obama Administration for not responding to Hasan’s emails to Awlaki, and Hasan’s attack led to more tracking of Awlaki (and, I suspect, Samir Khan’s) online interlocutors. I also suspect that, because of certain technical issues, the Hasan experience led to increased support for suspicionless back door searches.

But whether or not the UndieBomber alone or in conjunction with the Hasan attack was the catalyst, I absolutely agree Obama got spooked.

The question is whether Obama took the correct lesson from the UndieBomb, in particular. While the Hasan attack definitely led to real lessons about how to better use content collection (FISA and PRISM), the UndieBomb case should have elicited conclusions about having too much data to find the important messages, such as Abdulmutallab’s text to Awlaki proposing Jihad. (Note that Hoekstra’s blabbing about the Awlaki taps may have led AQAP to encrypt more of their data — as Awlaki was alleged to have done with Rajib Karim — which would have led to legitimate concerns about publicizing NSA techniques.) With the UndieBomb, NSA purportedly had advance warning of the attack that didn’t get read until after the attempt. Why not? And why wasn’t that Obama’s main takeaway?

And the National Security people still seem to be taking the wrong lessons. Here’s Matt Olsen and DiFi’s version of the National Security crowd’s latest fearmongering, that we need dragnets even more so now because the terrorist group has dispersed.

As core members of Al Qaeda were killed, the danger shifted to terrorists who were less organized and more difficult to detect, making the use of the N.S.A.’s powerful surveillance tools even more seductive. “That’s why the N.S.A. tools remain crucial,” Olsen told me. “Because the threat is evolving and becoming more diverse.”

Feinstein said, “It is very difficult to permeate the vast number of terrorist groups that now loosely associate themselves with Al Qaeda or Al Nusra or any other group. It is very difficult, because of language and culture and dialect, to really use human intelligence. This really leaves us with electronic intelligence.”

Olsen says the problem is, in part, that Al Qaeda is “less organized.” DiFi says one problem we have “permeating” terrorist groups is language and culture and dialect and her solution to that is to use “electronic intelligence.” While electronic intelligence — and specifically metadata — provides a way to compensate for linguistic failures (the NSA uses structure to identify which are the important conversations), in terrorist attack after terrorist attack (as well as CW attack) we turn out not to have been watching the right content feeds. And if we don’t have the linguistic skills, we’re likely not going to understand the messages correctly in any case.

And these are less organized groups! Are they really any more effective than crime gangs at this point, and crime gangs in countries far away with little means to access the US?

But rather than saving money on the dragnet and working instead on shoring up our cultural and linguistic failures, this failure is instead seen as another excuse to sustain the dragnet.

It’s clear that terror — whether NSA has failed or not — serves as a evergreen excuse for the dragnet. The real question is whether it should.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

8 replies
  1. GKJames says:

    So much for calm, rational, long-term thought on the part of people whose job is precisely NOT to get whip-sawed by every crazy, even if threatening, event. We haven’t (yet) turned the Constitution upside down for each knucklehead somewhere in the 50 states who elects to exorcise his/her sociopathic demons. And the Feinsteins of this world hardly would agree to have the apparatus open everyone’s hard-copy mail to make sure that nothing bad’s happening. So, are they justifying the dragnet simply because we have the resources to do it? That has it backwards, it seems.

  2. Greg Bean (@GregLBean) says:

    They can hardly come out and say, “we need the dragnet, in all its forms, so we can continue our economic espionage” now can they. So terror terror terror is still the justification, farcical as it is.

  3. Gaianne says:

    When the Administration uses the Undie Bomber as an excuse for anything, you know instantly that they are lying, deeply, and on many levels.

    How so? Start with the basics: We are told by the authorities that the undie bomb was made of PETN. This is a problem, and it falls out two ways, either of which is a problem: (1) The bomb was not PETN and the authorities are lying. The problem here is that in this case the authorities are simply lying and making shit up–specifically scary shit–for their own purposes–which obviously are not ours. This is a problem. (2) The bomb WAS PETN. But this is also a problem, because PETN requires a detonator, it cannot be detonated with a match, and anyone who works with PETN knows this. The last point is key: PETN is not something you can buy at a hardware store, you have to have a proper industry license. In this scenerio the undie bomb was not a bomb, but bullshit. And the authorities know it was bullshit. Which is the problem.

    Incidently, in the second scenerio the Undie Bomber himself could only be a dupe, and of no consequence, as his parents in fact asserted from the outset.

    PETN is not the only problem. There is also the problem of how the Undie Bomber was put on the plane. It turns out he was walked past security onto the plane. So our problem here is not a terrorist, but an airport security that is at cross-purposes, or is not security at all.

    In essence, the undie bomb was a false flag, carried out by somebody, with the co-operation of the highest levels of the US Government. An apparent purpose was to scare the American public into accepting intrusive searches of their person. Another apparent purpose was to justify the Surveillance State and to provide material for bullshit articles like Ryan Luzzi’s.

    –Gaianne

  4. Watson says:

    Have our security crackerjacks, whom we are supposed to trust as responsible custodians of total surveillance, explained how Nelson Mandela remained on their terrorist list until 2008?

  5. Snarki, child of Loki says:

    There are really two somewhat different threat scenarios:

    terrorists starting outside the US, unfamiliar with operating in the US (undiebomber), bringing in concealed bombs/weapons. These folks are getting through NON-TSA screening, and are going to do their actions ASAP, probably on the incoming flight itself…because they can’t count on getting through another security screening, and for their purposes the airplane is their ‘first contact’ with the US.

    terrorists starting inside the US, or comfortable operating in the US (Hasan), clearly do not need to bring anything in from outside; they just need to go to a gun show, load up on firearms, and find themselves a soft target.

    The problem with #2 for US politicians is that it is indistinguishable from the diehard core of one of our major political parties.

  6. klynn says:

    Interesting…This post is reminding me about some of Michael Mukasey’s “fear” statements as AG… not to mention the taste in artwork he had on the wall of his AG office.

    I also recall a John Conyers letter that pointed out a few facts to him…Conyer’s letter to him would be worth rereading today. Especially in light of your last two sentences.

    “It’s clear that terror — whether NSA has failed or not — serves as a evergreen excuse for the dragnet. The real question is whether it should.” -Emptywheel

  7. TedWa says:

    The NSA’s jobs are dependent on finding threats ….. or not. Not finding them seems to mean that we need a larger dragnet to the uninformed. Can we really trust private contractors in that position?

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