Many people — including those who are perhaps a little too anxious to shoot down the controversial NSA phone/credit card dragnet and PRISM information technology spying program as if they were another manufactured Benghazi — are claiming that one or both of these programs were responsible for stopping a terrorist attack inside the United States in 2009.
While the government did stop such an attack by Najibullah Zazi, who pleaded guilty to planning an attack in early 2010, anonymous claims by the Obama administration that these programs were responsible appear intentionally misleading.
The NPR article linked above from 2009 made no mention of any previously unknown intelligence programs that lead the government to suspect Zazi was planning an attack or the existence of his email accounts. It attributes successful surveillance of Zazi to an FBI investigation, not one by the NSA, that used ordinary subpoenas and wiretaps under existing authority from the USA Patriot Act and FISA court orders.
Adam Goldman of the Associated Press reported that Operation Pathway, a British counter-terrorism program surveilling suspected terrorists in Pakistan, discovered the email accounts through a digital data-gathering operation of its own and handed them to the United States along with its suspicions about Zazi in 2009.
Marcy Wheeler, in a post about Congressmen Mike Rogers (where I got most of this information), recalls that it was foreign intelligence surveillance programs (most likely the FISA orders) that later revealed important communications from Zazi, not PRISM. Given the very low threshold for surveillance set in the FISA Amendments Act of 2008 and Protect America Act of 2007, which opened new loopholes that allow purely domestic American communications to be swept up, both PRISM and the NSA telephone dragnet would have been unnecessary.
The open case is founded upon a series of emails exchanged between a Pakistani registered email account email@example.com and an email account admittedly used by Naseer firstname.lastname@example.org 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…”
There are more questions than answers and very little is known about the full extent of PRISM and the NSA phone/credit card dragnet, and nothing is known about other similar programs that may exist. President George W. Bush’s warrantless domestic surveillance program reportedly began as early as 2001 and wasn’t discovered and revealed to the public until 2005, after the 2004 presidential election. The NSA dragnet has reportedly been in operation in complete secrecy for the last seven years, until it was revealed this past week.
Yet in seven years, neither of these programs has stopped a single terrorist attack or apparently broke open an investigation. The anonymous administration claims fell apart almost immediately, and even if that hadn’t happened, one good hit in seven years is a miserable success rate. As expansive as these programs are, people are asking why they didn’t discover the Boston marathon bombing plot, “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.”
We also don’t know about the possible failures of these programs. Has anyone by identified as a threat and run through the system, harming their personal and professional lives, that was later found to be innocent? At least three people were wrongly caught up in the Zazi investigation and little information is available about what price they paid for it.
Has anyone been prosecuted for something unrelated to terrorism or national security where evidence was gathered through either of these programs? Many federal laws were passed in the wake if Watergate to prevent intelligence agencies from sharing run-of-the-mill evidence of crimes with domestic law enforcement in order to protect privacy, and many of those protections were either scaled back and eliminated immediately after the September 11th terrorist attacks.
How much are we spending on these programs that don’t seem particularly successful? Intelligence spending is usually hidden from the public and even most of Congress in bulk black budgets where only agency-wide totals are known.
Have any private sector companies violated their privacy policies, opening them to civil litigation, or state privacy laws by cooperating with the government, and have any of them refused to cooperate and then been threatened by the government and coerced? We know that some provisions of the PAA and FAA banned states and private citizens from going after telecommunications companies for violating privacy laws.
The administration isn’t going to anonymously leak any of that to the press, and it’s doubtful that Congress can uncover anything that leakers haven’t revealed, given the separation of powers doctrine and the federal courts unyielding deference to the executive branch in matters of national security.
The American Civil Liberties Union challenged the FAA the day it was signed into law in 2008 by President Bush, joined by human rights activists, lawyers, and press organizations. The Supreme Court dismissed the lawsuit in February of this year based on the administration’s argument that the ACLU couldn’t prove that anyone was being spied on, and so had no standing to challenge the constitutionality of the law.
In other words, the administration — like the one that came before — argued that the program was too secret for a court to consider if it was legal or not, and got the case thrown out without even being heard.
The scandal isn’t the NSA dragnet involving Verizon and probably every other major telco in the country, nor PRISM. It’s America turning into a police state where no civil liberty, be it online or telephone privacy, or the right to a trail before execution, can’t be scaled back in the name of state security. And they aren’t fading away. If anything, the situation that began after 9/11 has significantly worsened.