Both Mike Rogers and Ron Wyden made claims about the efficacy of the surveillance scoops of the last few days, especially the use of Section 215 to collect the phone data — and other tangible stuff, including credit card records — of every American.
The assessment of efficacy ought to consider a number of factors: Whether this surveillance has prevented any attacks (Rogers says it has, but mentions only one in the entire 7 year span of the program). Why it didn’t prevent an attack like the Boston Marathon bombing, which was carried out by two guys whose lives and extremist interests were splashed all over social media, and one of whom was discussed in international texts that would have been fair game for collection under PRISM.
But an efficacy assessment also needs to find a way to quantify the costs such surveillance has on false positives.
So let’s consider what may have happened to three probable false positives who had their lives thoroughly investigated in 2009 after being — wrongly, apparently — tied to Najibullah Zazi’s plot to bomb the NYC subway.
We first learned of these three people when they appeared in the detention motion the FBI used to keep him in custody in Brooklyn. As part of the proof offered that Zazi was a real threat, FBI described 3 people in Aurora, CO, who bought large amounts of beauty supplies.
Evidence that “individuals associated with Zazi purchased unusual quantities of hydrogen and acetone products in July, August, and September 2009 from three different beauty supply stores in and around Aurora;” these purchases include:
- Person one: a one-gallon container of a product containing 20% hydrogen peroxide and an 8-oz bottle of acetone
- Person two: an acetone product
- Person three: 32-oz bottles of Ion Sensitive Scalp Developer three different times
Unlike just about everything else cited in the detention motion, there was no obvious means by which these individuals were identified.
During the debate on PATRIOT Act reauthorization later that fall, Dianne Feinstein used the Zazi investigation to insist that Section 215 retain its broad “relevant to” standard. Given her insistence Section 215 had been important to the investigation, and given that the identification of these beauty supply buying subjects appeared to work backwards from their purchase of beauty supplies, I guessed at the time that the FBI used Section 215 to cross reference all the people who had bought these beauty supplies in Aurora, CO — which are precursors for the TATP explosive Zazi made — with possible associations with Zazi.
Just days later, as part of the debate, Ben Cardin discussed using National Security Letters to track people who buy “cleaning products that could be used to make explosive device.” And John Kyl discussed wanting to “know about Joe Blow buying hydogen peroxide.” Acetone and hydrogen peroxide, the same precursors used to implicate these three people.
In February 2011, Robert Mueller confirmed explicitly that Section 215 had been used to collect “records relating to the purchase of hydrogen peroxide.”
That seems to suggest that the government used Section 215 or NSLs to search on all the people who bought acetone and hydrogen peroxide in Aurora (by all public reporting, Zazi kept to himself the entire time he lived in CO).
But here’s the thing: these three people never appeared again in the legal case against Zazi and his co-conspirators. The only one from CO ever implicated in the plot was Zazi’s father, who had lied to protect his son.
They were three known associates buying dangerous explosives precursors one day, and apparently became either cleared innocents or recruited confidential informants the next day.
In other words, they appear to be false positives identified by the Section 215 dragnet celebrated by Obama and DiFi and everyone else implicated in it now as a great way to prevent terrorism (Zazi, remember, was discovered through legal FISA intercepts obtained after we got a tip from Pakistan).
Now, no one, as far as I know, has ever found these three probable false positives to ask them what they went through during the period when they were suspected of being co-conspirators in the biggest terrorist attack since 9/11. But given the likelihood that the association with Zazi went through his mosque (the other likely possibility is another driver from the airport), I imagine that their neighbors and employers got awfully suspicious when the FBI showed up and started asking questions. How badly does being actively — and, apparently, falsely — investigated for being a terrorist ruin your life if you’re an American Muslim? Do you lose job security? Do other kids’ parents refuse to let their kids play with yours? Does your homeowners association try to cause you trouble?
That’s what this debate about efficacy needs to quantify. Data mining is never completely accurate, and given the small number of terrorists and therefore the high degree of guessworks that goes into what counts as an association, you’re going to have false positives, as appears to have happened here.
Lots of apologists are saying they never do anything wrong, and therefore they don’t have to worry. But it appears that doing something as innocent as buying hair bleach can get you sucked into this dragnet.
The final vote was 86-13. No votes were Lee, Paul, DeMint, Risch, Crapo, and Coburn (the last three not on civil liberties grounds), and Cardin, Wyden, Sanders, Durbin, Franken, Harkin, and Merkley.
I’m sure Obama will sign this in time for us all to be indefinitely detained this weekend.
Update: Senator Franken sent out a statement explaining his no vote. It ends, “Today is the anniversary of the ratification of the Bill of Rights, and this wasn’t the way to mark its birthday.”
AFP has a report (notably picked up by Pakistan’s Dawn) on the Senate’s hand-wringing over whether we should tie aid to Pakistan to the release of Raymond Davis, the “consulate employee” who shot two alleged Pakistani spies. Here’s what Lindsey Graham had to say:
But Senator Lindsey Graham, the top Republican on Leahy’s subcommittee, strongly warned against any rollback of assistance to Pakistan, citing the need for help in the war in Afghanistan and the hunt for suspected terrorists.
“Our relationship’s got to be bigger than this,” Graham said.
“This is a friction point, this is a troubling matter, it doesn’t play well in Afghanistan. We can’t throw this agent over, I don’t know all the details, but we cannot define the relationship based on one incident because it is too important at a time when we’re making progress in Afghanistan,” he said. [my emphasis]
Lindsey, Lindsey, Lindsey! Under Ben Cardin’s proposed law criminalizing leaks (and, frankly, under existing law), you could go to jail for such honesty. Good thing you have immunity as a member of Congress.
Though in the spirit of Bob Novak–who claimed to be thinking of a political professional running congressional campaigns in Dick Cheney’s state when he called Valerie Plame an “operative”–I suppose Graham could claim he just thought Davis serves some kind of service employee at the consulate, one of the “agents” that help with visas or some such nonsense.
Not that that’ll help the tensions over this incident in Pakistan at all.
Reid is on the floor talking about what votes we’ll have tomorrow:
Argh. This means we won’t have 60 there for exclusivity.
Reid and Mitch McConnell had some back and forth on the stimulus package.
Thank colleagues for agreeing to a way forward on this bill. Hehehe, it would do no good to pass a good that is good for politics, but does not do what those who protect our country need. With these fixes we’ll have a bill the President will sign.
Shorter Kit: this is very very technical and so we’ve decided to just do away with Congressional review and, while we’re at it, privacy. What Mike McConnell wants, Mike McConnell gets.
In this debate about revising FISA and cleaning up the damage done by the President’s warrantless wiretap program, the Administration expends all its rhetorical focus on what we agree on.
On what terms will this Administration spy on Americans?
The privacy of Americans from government surveillance.
Both Chairmen–Leahy and Rockefeller–have given it their blessing.
As former AG and USA, I oversaw wiretaps, and I learned that with any electronic surveillance, information about Americans is intercepted incidentally.
In domestic law enforcement, clear ways to minimize information about Americans. Prospect of judicial review is an important part of protecting Americans. Bond and Rockefeller have already put into the bill that the authority to review the minimization if the target is an American inside the US. But as will often be the case, the target will often be outside the US. An American could just as easily be intercepted in these situations. This protection (review of minimization) should apply when the intercepted It makes no sense to strip a court based on the identity of the target. It may be that if there’s litigation that a court will decide that it is implied. The mere prospect of judicial review has a salutary effect. The opposite is true as well, when executive officials are ensured that a Court is forbidden to police enforcement, then they are more apt to ignore compliance. Both here, where the FISA bill creates an unheard of limit on Court powers, and in the immunity debate, where we intercede to choose winners and losers. Bad precedent for separation of powers. Those of you who are Federalist Society members should be concerned about this absence of separation of powers. Continue reading
Apparently, Reid has brokered a Unanimous Consent agreement that everyone, from Feingold and Dodd to Jeff "Mutual Defense" Sessions, have bought off on.
cboldt’s description is, not surprisingly, the best description of what we’re looking at. What the UC sets up is the following:
One by the vice-chairman of the Intelligence panel, Christopher S. Bond, R-Mo., would change definitions in the law to allow surveillance without a warrant in cases that involve the proliferation of weapons of mass destruction. Its adoption would require a simple majority vote.
Cardin: Sorry I’m late, Junior Senator from VT was babbling on.
[That's okay, Bernie gets all the time he wants.]
Cardin: thanks for communicating. Waterboarding cannot be justified. If we try to justify it, it’ll be hard to defend American interests. I believe clarity is needed. It’s very difficult for us on Helsinki commission to explain what we’re doing.
Cardin: Immunity, I’d urge you to the precedent of giving retroactive immunity of further abuses, whether it would have a permanent damage on role of courts in protecting civil liberties of American people. We need to preserve the rights of our courts. I’d urge you to take a look at this to see if accommodation.
Cardin: Third point, sunset, you’re urging against. The Senate has a six year sunset, House two year, I have an amendment for four year sunset, I believe next administration needs to have a position on this.
Cardin: It’s important to keep Congress engaged in this to give whoever is engaged in FISA more cover.
Cardin: Election issues and Civil Rights, not enough attention. If 2006 is any indication, there will be efforts made to suppress minority voting. We’ve seen in past elections fraudulent material to intimidate minority voting. How will you make sure such things do not go unchallenged. We have a bill that would strengthen DOJ role. I would hope you’d give fair warning that such tactics will be challenged.
MM: Monitors to make sure there is access to ballots. Also a memo indicating that their sensitivities have to be heightened, and also bringing prosecutions that might be perceived as a prosecution to affect an election. Want to make sure it’s based ONLY on the facts of the investigation, not the timing of the election.
[Are you saying it was done in the past, Mike?] Continue reading