As I noted the other day, one basis Judge Richard Leon used to find that the dragnet was likely unconstitutional was that it wasn’t all that useful. But I was particularly interested in the evidence he points to to establish that (see page 61 of his ruling), because it and the underlying basis for it reveal far more about how the government uses the dragnet than we’ve seen.
Leon points to the three cases in which the phone dragnet was supposed to be useful, which he gets from the declaration of FBI Acting Assistant Director Robert Holley. Holley claims the dragnet was useful in the Khalid Ouazzani, David Headley, and Najibullah Zazi cases (though Holley does not mention Ouazzani by name), using the following language.
In January 2009, using authorized collection under Section 702 of the Foreign Intelligence Surveillance Act to monitor the communications of an extremist overseas with ties to al-Qa’ida, NSA discovered a connection with an individual based in Kansas City. NSA tipped the information to the FBI, which during the course of its investigation discovered that there had been a plot in its early stages to attack the New York Stock Exchange. After further investigation, NSA queried the telephony metadata to ensure that all potential connections were identified, which assisted the FBI in running down leads.
At the time of his arrest, Headley and his colleagues, at the behest of al-Qa’ida, were plotting to attack the Danish newspaper that published cartoons depicting the Prophet Mohammed. Headley was later charged with support for terrorism based on his involvement in the planning and reconnaissance for the 2008 hotel attack in Mumbai. Collection against foreign terrorists and telephony metadata analysis were utilized in tandem with FBI law enforcement authorities to establish Headley’s foreign ties and them in context with his U.S. based planning efforts.
NSA received Zazi’s telephone number from the FBI and ran it against the Section 215 telephony metadata, identifying and passing additional leads back to the FBI for investigation. One of these leads revealed a previously unknown number for co-conspirator Adis Medunjanin and corroborated his connection to Zazi as well as to other U.S.-based extremists.
First, note what’s missing? Any mention of Basaaly Moalin, the only defendant for which the government claims the phone dragnet was critical to his identification. Holley may have left Moalin out because of the timing: DOJ submitted his declaration on November 12, the day before the hearing on Moalin’s bid for a new trial and two days before Jeffrey Miller’s ruling rejecting that. Did DOJ think they might lose that argument, and so left it out out of fear it would make them more likely to lose this one (Leon does acknowledge Miller’s ruling in his own). Or was the case just so dated they chose not to mention it?
Whatever the reason, they’re left describing three cases in which even Keith Alexander admits the dragnet was at best only helpful.
But note the other thing: Up until now, the government has only described how the dragnet was useful in the Zazi case. While in its propaganda about 54 plots or maybe just terrorist events thwarted, it has implicitly suggested that only those with a US-nexus could involve the dragnet, I know of no other instance where they made it clear that they sort of used it in the Headley and Ouazzani cases (I’m going to check the declarations in the parallel suits later).
In both cases, it appears, the government only used it after the fact (which is how they used it in the Boston Marathon attack, which bizarrely also goes unmentioned).