***scroll for updates…The ACLU wants a special prosecutor (but not for the leakers)…Some on the Left aren’t happy with the Times, either…Arlen Specter says the Judiciary Committee will investigate (the Bush administration, not the leakers)…12/17 Bush fights back…***
This morning, the Drudge Report–HUGE RED FONT and all–chose to aid and abet the civil liberties Chicken Littles at the N.Y. Times. That’s a shame. The real headline news is not that President Bush took extraordinary measures to protect Americans in the aftermath of the Sept. 11 terrorist attacks, but that the blabbermouths at the Times chose to disclose classified information in a pathetically obvious bid to move the Iraqi elections off the front pages. And to help sabotage the Patriot Act reauthorization, which went down in the Senate this afternoon.
[Update: And to grease the wheels for Times reporter James Risen’s new book.
Well, well, well.]
I’m sure the New York Times editorial page will be clamoring for a special counsel to get to the bottom of the illegal, national security-compromising leaks that fueled this story.
The Times attempts to create a national uproar over something called a “special collection program” launched by the National Security Agency sometime after the Sept. 11 attacks. The opening paragraphs give the alarming impression that the agency is spying broadly on “Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying.”
Those who actually read the piece will note that the paper must grudgingly acknowledge that it is talking about the NSA’s monitoring of international communications (e-mails, cellphone calls, etc.) only; the agency still seeks warrants to monitor entirely domestic communications.
And not until the 16th paragraph, some 1,110 words into the massive piece, does the paper tell you the important context in which the program was created and used:
What the agency calls a “special collection program” began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism. The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists’ computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, the officials said.
In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said.
The article notes:
The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.
“Some,” but not all.
The paper’s reporters righteously pat themselves on the back for waiting a year. But why is the Times’ decision to publish the story any less dangerous now? Why did the editors choose to run the piece on the day after the Iraqi elections? Why not the day before? Why not Sunday?
But I digress.
As a result of the NSA program, buried down in the 11th paragraph, we learn that the terrorist plot involving convicted al Qaeda operative Iyman Faris was uncovered–possibly saving untold lives, not to mention New York bridges and possibly Washington, D.C. trains.
NSA’s “special collection program” nabbed terrorist plotter Iyman Faris
Here is some info about Faris’s activities not included in the Times’ piece, via the Justice Department’s October 2003 press release upon Faris’ sentencing to 20 years in prison for providing material support to terrorists:
Faris has admitted traveling to a training camp in Afghanistan in late 2000, where he was introduced to Usama bin Laden. Faris admitted that during a meeting in late 2000, one of bin Laden’s men asked him about “ultralight” airplanes, and said al Qaeda was looking to procure an “escape airplane.” Faris admitted that about two months later, he performed an Internet search at a café in Karachi, Pakistan and obtained information about ultralights, which he turned over to a friend for use by al Qaeda.
Faris also admitted that during a visit to Karachi in early 2002, he was introduced to a senior operational leader in al Qaeda. A few weeks later, the operational leader asked what he could do for al Qaeda. Faris said he discussed his work as a truck driver in the United States, his trucking routes and deliveries for airport cargo planes, in which the al Qaeda leader said he was interested because cargo planes would hold “more weight and more fuel.”
According to Faris’ admission, the operational leader then told Faris that al Qaeda was planning two simultaneous attacks in New York City and Washington, D.C. The al Qaeda leader spoke with Faris about destroying a bridge in New York City by severing its suspension cables, and tasked Faris with obtaining the equipment needed for that operation. The leader also explained that al Qaeda was planning to derail trains, and asked Faris to procure the tools for that plot as well.
Faris admitted that upon returning to the United States from Pakistan in April 2002, he researched “gas cutters” – the equipment for severing bridge suspension cables – and the New York City bridge on the Internet. Between April 2002 and March 2003, he sent several coded messages through another individual to his longtime friend in Pakistan, indicating he had been unsuccessful in his attempts to obtain the necessary equipment. Faris admitted to traveling to New York City in late 2002 to examine the bridge, and said he concluded that the plot to destroy the bridge by severing cables was unlikely to succeed because of the bridge’s security and structure. In early 2003, he sent a message that “the weather is too hot” – a coded message indicating that the bridge plot was unlikely to succeed.
Civil liberties extremists pretend there are no tradeoffs, no costs, to putting legal absolutism over national security. That is simply not the case. Had Faris remained free, he may have likely kept forging ahead until he found the right tools, the right bridge, the right trains, and the right time to execute the al Qaeda plot.
The Bush administration argues that the NSA program that helped uncover the Faris plot was necessary because officials needed to act quickly on large caches of information, such as the data found after the Zubaydah capture in March 2002. Normally, the government obtains court orders to monitor such information from the Foreign Intelligence Surveillance Court. But the window of opportunity to exploit the names, numbers, and addresses of those associated with the top terrorist leaders was obviously small.
Contrary to the impression the piece and headline leave of an administration acting in complete secrecy and with total impunity and disregard for civil liberties, the reporters reveal that Vice President Dick Cheney, then-NSA director Gen. Michael V. Hayden of the Air Force, and then-CIA director George Tenet called a meeting with Congressional leaders from both parties to brief them on the program.
The administration trusted that the briefing would remain confidential for the sake of national security. Obviously, they trusted too much.
The Times then discloses key information beginning in the 34th paragraph of the piece:
In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.
For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone’s communications, several officials said.
A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials. While not knowing all the details of the exchange, several government lawyers said there appeared to be concerns that the Justice Department, by trying to shield the existence of the N.S.A. program, was in danger of misleading the court about the origins of the information cited to justify the warrants.
One official familiar with the episode said the judge insisted to Justice Department lawyers at one point that any material gathered under the special N.S.A. program not be used in seeking wiretap warrants from her court. Judge Kollar-Kotelly did not return calls for comment.
A related issue arose in a case in which the F.B.I. was monitoring the communications of a terrorist suspect under a F.I.S.A.-approved warrant, even though the National Security Agency was already conducting warrantless eavesdropping. According to officials, F.B.I. surveillance of Mr. Faris, the Brooklyn Bridge plotter, was dropped for a short time because of technical problems. At the time, senior Justice Department officials worried what would happen if the N.S.A. picked up information that needed to be presented in court. The government would then either have to disclose the N.S.A. program or mislead a criminal court about how it had gotten the information.
1) Certain elements of the controversial program have been “suspended” and “revamped.” Which ones, the Times doesn’t say. Is the NSA still monitoring phone calls to and from the US? The Times does not make that clear.
2) Did you catch this: “According to officials, F.B.I. surveillance of Mr. Faris, the Brooklyn Bridge plotter, was dropped for a short time because of technical problems.” How long must we tolerate the screw-ups at the FBI?
3) For those who blithely suggest that the NSA had no reason to bypass the courts, note that Judge Colleen Kollar-Kotelly refused to issue FISA warrants based on the NSA info.
Once again, hindsight hypocrisy rears its head. If the Bush administration chose to pursue FISA warrants, failed to obtain them, let the information go to waste, and allowed another attack to occur as a result, is there any question the finger-waggers at the NYTimes would be the first to attack the President for failing to do everything necessary to prevent it?
Other blog reaction:
– Confederate Yankee Bob Owens:
In a time of extraordinary circumstances, while the remains of murdered Americans were still being recovered from Ground Zero, the Pentagon, and a field outside Shanksville, the President decided that stopping terrorists from killing more Americans was more important than entertaining the delicate sensibilities of the ACLU.
Thank God we have you, James Risen and Eric Lichtblau of the New York Times to guard our civil liberties! I just wish that you had been able to get this information when it was fresh and still of use to al Qaeda. Oh wait, it still might be, and you don’t care…
– Power Line’s John Hinderaker on the Times’ leak double standards: Let’s send these guys to jail.
If this report is true, it really is a major shift in U.S. surveillance policy — though I’m not sure whether snooping on international calls that originate or end in the U.S. is such a big departure.
Glenn writes that he “can’t see any very compelling reason to bypass the courts here, especially given that warrants in these cases are almost always granted.”
The Bush administration’s response, based on the Times article, hinges on the volume of intelligence gathered and speed with which it needs to be acted upon. The cellphone numbers and e-mail addresses obtained after the Zubaydah capture, for example, were probably rendered useless within hours–presumably not enough time to seek and win warrant approvals from the Federal Intelligence Surveillance Court. It will be interesting to see how the administration responds further on this point.
Scott Ott hits the bulls-eye with a dead-on spoof. Read it.
Reader Bat1 e-mails:
May I suggest that “moving the Iraqi elections off the front page” was at best a secondary reason for publication of the NSA story. All things considered (no pun), the NYT didn’t go out of its way to trumpet the remarkable event of yesterday’s Iraqi election anyway. Of more significance is the Senate debate over renewal of the Patriot Act and the fact that a number of RINOs are wavering. Its more than a little interesting that those who bray and yammer about the Valerie Plame “leak” would now go to such lengths as to once more disclose details of a classified operation. If I were Patrick Fitzgerald, I’d pack up and move to Tahiti.
James Joyner at Outside the Beltway:
While leaking classified information to the press is illegal and the perpetrators should be prosecuted, it is not readily apparent to me how the NYT’s publication of this report damages national security. I’m surprised and pleased that the paper actually waited a full year in consideration of these concerns.
As to the searches themselves, there’s not enough information here to cause a red flag to go up. Presumably, the NSA doesn’t have the time or inclination to eavesdrop on random Americans, preferring instead to concentrate their efforts on those whom they reasonably believe are tied to terrorists.
It also appears that reasonably stringent safeguards were put into the process. In addition to keeping the relevant congressional committees in the loop–a good indication that the administration was being above board–the targetting seems tightly focused…
Mark Levin has some quick FISA background and explains the damage these leaks do to national security–worth quoting in full:
Some brief background: The Foreign Intelligence Security Act permits the government to monitor foreign communications, even if they are with U.S. citizens — 50 USC 1801, et seq. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.
The reason the President probably had to sign an executive order is that the Justice Department office that processes FISA requests, the Office of Intelligence Policy and Review (OIPR), can take over 6 months to get a standard FISA request approved. It can become extremely bureaucratic, depending on who is handling the request. His executive order is not contrary to FISA if he believed, as he clearly did, that he needed to act quickly. The president has constitutional powers, too.
It’s also clear from the Times piece that Rockefeller knew about the government’s eavesdropping, as did the FISA court. By the time this story is fully fleshed out, we’ll learn that many others knew about it, too. To the best of my knowledge, Rockefeller didn’t take any steps to stop the eavesdropping. And he’s no friend of this administration. Nor is he above using intelligence for political purposes, as his now infamous memorandum demonstrates.
But these leaks — about secret prisons in Europe, CIA front companies, and now secret wiretaps, are egregious violations of law and extremely detrimental to our national security. They are far worse than any aspect of the Plame matter. The question is whether our government is capable of tracking down these perpetrators and punishing them, or will we continue to allow the Times and Washington Post determine national security policy. And if these wiretaps are violative of our civil liberties, it’s curious that the Times would wait a year to report about it. I cannot remember the last time, or first time, this newspaper reported a leak that was helpful to our war effort.
Jeff Goldstein praises Bloomberg News’s restraint in covering the story.
The Manhattan Institute’s Heather Mac Donald has written tirelessly on civil liberties alarmism and the blind march of the “privocrats.” The Times’ piece today is just the latest salvo fired in the Left’s war on the Patriot Act and other antiterrorism measures. For background, see: