This past week two related stories broke, James Bamford's article on the NSA's "Stellar Wind" project in Utah which will dramatically enhance the governments ability to store and process intercepted communications and records and Eric Holder's announcement that the US will now keep and analyze information gathered about Americans or U.S. residents for 5 years, 10 times the previously allowed period.
These are both somewhat ominous stories. In describing the Stellar Wind project former senior NSA official and whistleblower, William Binney put it, "We are this far from a turnkey totalitarian state." The extension of time announced by Eric Holder for retention and analysis of records increases Americans jeopardy of having their information misused or misinterpreted by agencies that have repeatedly done so and Americans (including Senator Ted Kennedy) have found themselves wrongfully placed on no-fly lists or worse, find their homes bugged and burgled, and their phones wiretapped leading to them being arrested and jailed in error, as happened to Brandon Mayfield.
The details of the Mayfield case illustrate some of the problems with "human factors" in intelligence work:
From the Wikipedia article linked above:
Following the September 11, 2001 attacks, Mayfield was concerned for the safety of his children and wife, and according to his father, he suspected that he was under surveillance by the federal authorities. In the weeks before his arrest, Mayfield's family was under the impression that their house had been broken into at least twice, although nothing was stolen. According to court documents, the FBI used National Security Letters in order to wiretap his phones, bug his house, and search his house several times.
Fingerprints on a bag containing detonating devices, found by Spanish authorities following the Madrid commuter train bombings, were initially identified by the FBI as belonging to Mayfield ("100% verified"). According to the court documents in judge Ann Aiken's decision, this information was largely "fabricated and concocted by the FBI and DOJ". When the FBI finally sent Mayfield's fingerprints to the Spanish authorities, they contested the matching of the fingerprints from Brandon Mayfield to the ones associated with the Madrid bombing. Further, the Spanish authorities informed the FBI they had other suspects in the case, Moroccan immigrants not linked to anyone in the USA. The FBI completely disregarded all of the information from the Spanish authorities, and proceeded to spy on Mayfield and his family further. ...
Before his arrest, Spanish authorities informed the FBI in a letter from April 13, that they reviewed the fingerprint on the bag as a negative match of Mayfield's fingerprint, though this letter was not communicated to Mayfield's attorneys. On May 19 the Spanish authorities announced that the fingerprints actually belonged to an Algerian national, Ouhnane Daoud; Brandon Mayfield was released from prison when the international press broke the story the next day — May 20, 2004. A gag order remained in force for the next few days. By May 25, the case was dismissed by the judge, who ordered the return of seized evidence and unsealing of documents pertaining to his arrest.
The FBI conducted an internal review of Mayfield's arrest and detention, concluding that although he was not arrested solely due to his religious beliefs, they may have contributed to investigator's failure to take into account the Spanish concerns over fingerprint identification. The FBI issued a press release announcing the report's conclusion that they had not misused the USA PATRIOT Act in the investigation.
The NSA is building out the capacity to hold and analyze almost unimaginably large amounts of data (Bamford reports that NSA is creating a yottabyte of storage) and is working at creating a computer with an enormous speed and capacity to break encryption which will facilitate the Obama administration's plans to give the government extra time to hold and analyze Americans records.
The reasoning used by the Obama administration to justify the time extension is interesting:
The change was prompted by concern that the intelligence community failed to connect information from a variety of databases that could have prevented Umar Farouk Abdulmutallab, known as the "Underwear Bomber," from attempting to blow up a U.S. airliner on Christmas day in 2009.The intelligence community has failed to connect information that would have prevented a lot of terrorist actions, but the extension of time to analyze data is arguably not the critical shortcoming of the intelligence community's efforts.
For example, in the Underwear Bomber (Umar Farouk Abdulmutallab) case, the father of the Underwear bomber contacted officials in Nigeria and at the State Department and CIA about a month in advance of the Christmas bombing but none of those people took his report seriously enough to do much about it. It's not like the intelligence community didn't have all of the pieces:
The National Security Agency four months ago intercepted conversations among leaders of Al Qaeda in Yemen discussing a plot to use a Nigerian man for a coming terrorist attack, but American spy agencies later failed to combine the intercepts with other information that might have disrupted last week’s attempted airline bombing.So, according to the New York Times story, the intelligence community had the phone intercepts about a planned attack by a Nigerian man four months ahead of time and the Nigerian man's father reported that he was a security threat and that his son in Yemen sent texts saying that he had "discovered the real Islam" and that his family should forget about him, he's "never coming back" about a month in advance of the attack.
The electronic intercepts were translated and disseminated across classified computer networks, government officials said on Wednesday, but analysts at the National Counterterrorism Center in Washington did not synthesize the eavesdropping intelligence with information gathered in November when the father of Umar Farouk Abdulmutallab, now accused of the attempted bombing, visited the United States Embassy in Nigeria to express concerns about his son’s radicalization.
How would keeping this information for five years to hold and analyze have helped?
The intelligence community had an opportunity to connect the dots, but due to various human factors, (see the article) like failure to take the father's reports seriously, failure of the CIA to report the information outside of its agency and failure of the people at the National Counterterrorism Center to give enough weight to the cable from the embassy in Nigeria to assign Abdulmutallab's name to the watch list that would have required Abdulmutallab be pulled out of line to be inspected before boarding or prevented from flying to the United States.
It is glaringly obvious that the extension of the hold and analyze period to 5 years ignores common sense about terrorist attacks; we generally don't have the luxury of a five year period in preventing attacks and human errors and miscalculations have been the key factors in either failure to identify attacks or to falsely identify the wrong people as terrorists.
Surely the Obama administration and the agencies that it oversees would like to improve on their record, but this seems like a loser and an expensive loser at that. As James Bamford notes in an interview with Democracy Now:
We’re spending enormous amounts of money on NSA to pick up communications. And even though they lost all these—they had all these failures during the 1990s, you know, failure after failure—the World Trade Center One and World Trade Center Two, the attack on the Cole, the East African embassies bombings—and even after they started all this rebuilding and more and more money, they still missed the person flying over on the Christmas Day flight to Detroit with a bomb in his underwear. They missed the person in Times Square. So, you know, all this eavesdropping we’re doing and all this money we’re spending, I don’t see an awful lot of value coming out of that. But I do hear tremendous amounts of fear mongering, that sort of nonstop fear mongering from the people that are pushing this agenda.
"Human factors" are the real problem
The problem manifests in a few ways, failure to connect the dots about situations and connecting dots that don't belong together for various reasons and creating dots that don't or shouldn't exist.
Leaving aside the part of the problem that is almost always ignored, that the terrorists that we seem most interested in right now might want to attack us because we support repressive governments in their home countries in order to exploit oil and other resources, or because the US strongly supports a government in the middle east that has failed to find an opportunity in over 40 years to make a durable peace with an occupied nation in their midst, let's look at some evidence of the human factors at work...
There's the executive failure to listen when advisors say that "the system is blinking red" and the executive would rather spend a month clearing brush at his ranch:
After the September 11, 2001, attacks, Rowley wrote a paper for FBI Director Robert Mueller documenting how FBI HQ personnel in Washington, D.C., had mishandled and failed to take action on information provided by the Minneapolis, Minnesota Field Office regarding its investigation of suspected terrorist Zacarias Moussaoui. Moussaoui had been suspected of being involved in preparations for a suicide-hijacking similar to the December 1994 "Eiffel Tower" hijacking of Air France 8969. Failures identified by Rowley may have left the U.S. vulnerable to the September 11, 2001, attacks. Rowley was one of many agents frustrated by the events that led up to the attacks, writing:As time goes on and more and more 9/11 related facts become public, we learn things like the fact that we had access to phone intercepts between Khalid Sheik Muhammed and Ramzi Binalshibh, discussing operations of the 9/11 plot months in advance. Unfortunately, this is another case where 5 years retention of the evidence would be of little use.
"During the early aftermath of September 11th, when I happened to be recounting the pre–September 11th events concerning the Moussaoui investigation to other FBI personnel in other divisions or in FBIHQ, almost everyone's first question was "Why?--Why would an FBI agent(s) deliberately sabotage a case? (I know I shouldn't be flippant about this, but jokes were actually made that the key FBI HQ personnel had to be spies or moles, like (Robert Hanssen), who were actually working for Osama Bin Laden to have so undercut Minneapolis's effort.)"
While it appears that the problems caused by a failure to connect the dots arguably will not be fixed by a 5 year record retention and analysis, the problems of improperly connecting dots and/or creating dots out of whole cloth will likely be made worse by the time extension. Consider the Brandon Mayfield case mentioned above. As this article points out not only did the FBI make up dots (by saying that his fingerprints matched, despite the Spanish authorities denials) they did it for improper reasons
Once the FBI made its erroneous match, it then built up a case against Mayfield based, in part, on his legal work and associations in the Muslim community, records show.The FBI used portions of the Patriot Act as an authority in allowing them to perform the "black bag job" on Mayfield and they, rather than charging him with a crime, held him as a "material witness" which could have resulted in much longer detention of an indefinite period. Mayfield sued to have the sections of the Patriot Act that were misused against him declared unconstitutional. He based his argument that he had standing to sue, despite his settlement, based upon the fact that the government retained copies of everything from his DNA taken from his toothbrush to the records of his legal clients. He prevailed in a lower court and was ultimately overturned in the 9th Circuit for lack of standing.
Mayfield's case demonstrates how the human factors, the overreaching laws set up by the Patriot Act and the additional duration for records retention created by the Obama administration's rule change can create problems for Americans wrongfully targeted by intelligence gathering or wrongfully labelled as terrorists. The extended retention increases the likelihood of future improper results.
It is well to note that unjustified and unjustifiable collection of Americans information by the NSA and other agencies occurs and untruths, distortions and outright lies are often put forth by those agencies in an attempt to cover up, making it difficult to trust their testimony.
James Bamford in his Democracy Now interview says:
Well, you know, the NSA has constantly denied that they’re doing things, and then it turns out they are doing these things. They denied they were doing domestic eavesdropping back in the '70s, and it turned out they had Operation SHAMROCK and Operation MINARET, and they've been reading every single telegram coming in or going out of the country for 30 years at that point, and also eavesdropping on antiwar veterans. That came out during the Church Committee report. More recently, a few years ago, President Bush said before camera that the United States is not eavesdropping on anybody without a warrant, and then it turns out that we had this exposure to all the warrantless eavesdropping in the New York Times article. And so, you have this constant denial and parsing of words in terms of what he’s saying.To provide an example of the sorts of things Bamford is talking about, there is the illegal and improper wiretapping of Americans phone conversations by the NSA during the Iraq conflict revealed by whistleblowers Adrienne Kinne and David Faulk:
Despite pledges by President George W. Bush and American intelligence officials to the contrary, hundreds of US citizens overseas have been eavesdropped on as they called friends and family back home, according to two former military intercept operators who worked at the giant National Security Agency (NSA) center in Fort Gordon, Georgia.The whistleblowers detailed the interception of calls by aid workers and journalists, which jeopardized their lives and work:
A spokesman for Doctors Without Borders, Michael Goldfarb, said: "The abuse of humanitarian action through intelligence gathering for military or political objectives, threatens the ability to assist populations and undermines the safety of humanitarian aid workers."The article also documents abuses by NSA workers tasked to record calls between soldiers and their wives and girlfriends back home, which they then shared with other workers:
Faulk says he and others in his section of the NSA facility at Fort Gordon routinely shared salacious or tantalizing phone calls that had been intercepted, alerting office mates to certain time codes of "cuts" that were available on each operator's computer.When asked to comment on this in congressional testimony, the NSA denied its actions:
In testimony before Congress, then-NSA director Gen. Michael Hayden, now director of the CIA, said private conversations of Americans are not intercepted.
"It's not for the heck of it. We are narrowly focused and drilled on protecting the nation against al Qaeda and those organizations who are affiliated with it," Gen. Hayden testified.
The system is open to misuse and abuse
The system that protects us from terrorism has, as some of the evidence above bears out been open to misuse and abuse, from the targeting of persons due to their religious affiliations to persons who should never have been targets having their most personal conversations pored over for prurient content and highlighted for the office humor and titillation by intelligence workers. Aside from these abuses there is strong evidence that the authorities given to the intelligence community to combat terrorism have been used for other purposes rather than terrorism. For instance, the Patriot Act's section 213 "Sneak and Peek" authority that was used against Brandon Mayfield, according to the required report to Congress on its uses demonstrates that the authority is used almost entirely for other things than terrorism. As this chart from the report demonstrates, the uses of this authority for terrorism are not considered statistically significant:
Two senators claimed on Thursday that the Justice Department had secretly interpreted the so-called Patriot Act in a twisted way, enabling domestic surveillance activities that many members of Congress do not understand. ..."The system is blinking red."
During the debate, Senator Ron Wyden, an Oregon Democrat and a member of the Intelligence Committee, said that the executive branch had come up with a secret legal theory about what it could collect under a provision of the Patriot Act that did not seem to dovetail with a plain reading of the text. “I want to deliver a warning this afternoon: When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry,” Mr. Wyden said. He invoked the public’s reaction to the illegal domestic spying that came to light in the mid-1970s, the Iran-contra affair, and the Bush administration’s program of surveillance without warrants.
Another member of the Intelligence Committee, Senator Mark Udall, Democrat of Colorado, backed Mr. Wyden’s account, saying, “Americans would be alarmed if they knew how this law is being carried out.”
In a 2009 debate over the Patriot Act, another member of the Intelligence Committee, Russell Feingold, Democrat of Wisconsin, also hinted that Section 215 was being used in a secret way that, he said, “Congress and the American people deserve to know” about.
So to sum up, we have Senators giving dire warnings about the manner in which the current anti-terrorism law is being used and its negative effect on the rights of Americans. We have whistleblowers from the NSA, like Thomas Drake speaking out about how the system wastes billions of dollars and violates the "prime directive" of the NSA which is that you don't spy on Americans without a warrant and that the NSA set up a dragnet on American communications, "blanket electronic surveillance." Then there's William Binney who used to be the director of NSA's, World Geopolitical Military Analysis and Reporting Group, a huge organization that eavesdrops on most of the world and the founder and co-director of NSA's Signals Intelligence Automation Research Center who says that we are close to creating a "turnkey totalitarian state." There are individuals with knowledge of the system fairly coming out of the woodwork to tell us that there is something horribly wrong going on that is adversely affecting our civil liberties.
Just as when George W. Bush was handed a document well in advance of 9/11 that said in large, bold letters, "Bin Laden Determined To Strike in US," we are being handed evidence that "the system is blinking red."
What are you going to do about it?