Since the National Security Agency’s surveillance programs were publicly exposed in June 2013, President Barack Obama and intelligence officials have argued that the surveillance had foiled dozens of terrorist plots, a claim that has recently been proven false.
Other supporters of the programs opined that it could have prevented the September 11 terrorist attacks. That opinion was promulgated by U.S. District Court Judge William Pauley, who held last week that the NSA metadata collection is legal.
“Prior to the September 11th attacks, the National Security Agency intercepted seven calls made by hijacker Khalid al-Mihdhar, who was living in San Diego, California, to an al-Qaeda safe house in Yemen,” wrote Pauley in ACLU v. Clapper. “The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar’s telephone number identifier.”
“Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States. Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Investigation of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States,” he added.
But the notion from Pauley and others is counterfactual thinking. It cannot be proven. But Justin Elliott of ProPublica, a public interest organization, noted last summer that federal law enforcement officials had the means to bring in al-Mihdhar, who was on the flight that crashed into the Pentagon, and simply didn’t act.
“It is impossible to know for certain whether screening phone records would have stopped the attacks — the program didn’t exist at the time. It’s also not clear whether the program would have given the NSA abilities it didn’t already possess with respect to the case,” wrote Elliott.
“But one thing we do know: Those making the argument have ignored a key aspect of historical record,” he noted. “U.S. intelligence agencies knew the identity of the hijacker in question, Saudi national Khalid al-Mihdhar, long before 9/11 and had the ability find him, but they failed to do so,” pointing to the 9/11 Commission Report to backup his conclusion.
It’s worth noting that al-Mihdhar was added to the terror watch list just a couple weeks before the 2001 terrorist attacks. He was also flagged by the Computer-Assisted Passenger Prescreening System (CAPPS) on September 11, and subject to additional scrutiny.
Elliott also quoted Richard Clarke, a counterterrorism official who served in the Clinton and Bush administrations, who noted that the Justice Department could have obtained a warrant to “show all calls from the U.S. which went to the Yemen number.”
“As far as I know, they did not do so. They could have,” Clarke told Elliott. “My understanding is that they did not need the current All Calls Data Base FISA warrant to get the information they needed. Since they had one end of the calls (the Yemen number), all they had to do was ask for any call connecting to it.”
Clarke, by the way, served on the White House Review Group on Intelligence and Communications Technology. That five-member panel recommended last month that the metadata program be taken out of the hands of the NSA and significantly reformed.
The key problem related to al-Mihdhar, according to Peter Bergen, was not a lack of information, rather the lack of information-sharing between the CIA and FBI, the “wall” between the agencies that was scrutinized in the 9/11 Commission Report.
“Since we can’t run history backward, all we can say with certainty is that it is an indisputable fact that the proper sharing of intelligence by the CIA with other agencies about al-Mihdhar may well have derailed the 9/11 plot,” Bergen explained in an editorial at CNN. “And it is merely an untestable hypothesis that if the NSA bulk phone collection program had been in place at the time that it might have helped to find the soon-to-be-hijackers in San Diego.”
The thing is that the NSA doesn’t need a database of more than 1 trillion phone records to locate potential terrorists. Intelligence agencies already have the ability to obtain warrants to specific potential targets to connect the dots. They could have done that with al-Mihdhar and the Yemen safe house, but didn’t.