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Selective Memory Surveillance: Obama, the NSA and September 11

| June 22, 2013

A memorial drape spread in Manhattan's Washington Square Park a few days after the attacks of 9/11. Click on the image for larger view. (© FlaglerLive)

A memorial drape spread in Manhattan’s Washington Square Park a few days after the attacks of 9/11. Click on the image for larger view. (© FlaglerLive)

In defending the NSA’s sweeping collection of Americans’ phone call records, Obama administration officials have repeatedlypointed out how it could have helped thwart the 9/11 attacks: If only the surveillance program been in place before Sept. 11, 2001, U.S. authorities would have been able to identify one of the future hijackers who was living in San Diego.
 Last weekend, former Vice President Dick Cheney invoked the same argument.

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. Details of the current program and as well as NSA’s role in intelligence gathering around the 9/11 plots remain secret.  

But one thing we do know: Those making the argument have ignored a key aspect of historical record.

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.

“There were plenty of opportunities without having to rely on this metadata system for the FBI and intelligence agencies to have located Mihdhar,” says former Senator Bob Graham, the Florida Democrat who extensively investigated 9/11 as chairman of the Senate’s intelligence committee.

These missed opportunities are described in detail in the joint congressional reportproduced by Graham and his colleagues as well as in the 9/11 Commission report.

Mihdhar is at the center of the well-known story of the failure of information sharing between the CIA and FBI and other agencies.

Indeed, the Obama administration’s invocation of the Mihdhar case echoes a nearly identical argument made by the Bush administration eight years ago when it defended the NSA’s warrantless wiretapping program.

Mihdhar and the other hijacker with whom he lived in California, Nawaf al Hazmi, were “experienced mujahideen” who had traveled to fight in Bosnia in the mid-1990s and spent time in Afghanistan.

Mihdhar was on the intelligence community’s radar at least as early as 1999. That’s when the NSA had picked up communications from a “terrorist facility” in the Mideast suggesting that members of an “operational cadre” were planning to travel to Kuala Lumpur in January 2000, according to the commission report. The NSA picked up the first names of the members, including a “Khalid.” The CIA identified him as Khalid al Mihdhar.

The U.S. got photos of those attending the January 2000 meeting in Malaysia, including of Mihdhar, and the CIA also learned that his passport had a visa for travel to the U.S. But that fact was not shared with FBI headquarters until much later, in August 2001, which proved too late.

“Critical parts of the information concerning al-Mihdhar and al-Hazmi lay dormant

within the Intelligence Community for as long as eighteen months,” the congressional 9/11 report concludes, “at the very time when plans for the September 11 attacks were proceeding.

The CIA missed repeated opportunities to act based on information in its possession that these two Bin Ladin associated terrorists were traveling to the United States, and to add their names to watchlists.”

Using their true names, Mihdhar and Hazmi for a time beginning in May 2000 even livedwith an active FBI informant in San Diego.

The U.S. lost track of Mihdhar’s trail in Asia in early 2000, but there were more chances.

“On four occasions in 2001, the CIA, the FBI, or both had apparent opportunities to refocus on the significance of Hazmi and Mihdhar and reinvigorate the search for them,” the 9/11 Commission report says. The report concludes that if more resources had been applied and a different approach taken, Mihdhar could have been found and stopped.

So, apart from all the missed opportunities, would a theoretical metadata program capturing phone records of all Americans made a difference before 9/11?

Key details about Mihdhar’s activities and the NSA before 9/11 remain classified so it’s difficult answer conclusively.

Let’s turn to the comments of FBI Director Robert Mueller before the House Judiciary Committee last week.

Mueller noted that intelligence agencies lost track of Mihdhar following the January 2000 Kuala Lumpur meeting but at the same time had identified an “Al Qaida safe house in Yemen.”

He continued: “They understood that that Al Qaida safe house had a telephone number but they could not know who was calling into that particular safe house. We came to find out afterwards that the person who had called into that safe house was al Mihdhar, who was in the United States in San Diego. If we had had this [metadata] program in place at the time we would have been able to identify that particular telephone number in San Diego.”

In turn, the number would have led to Mihdhar and potentially disrupted the plot, Mueller argued.

(Media accounts indicate that the “safe house” was actually the home of Mihdhar’s father-in-law, himself a longtime al Qaida figure, and that the NSA had been intercepting calls to the home for several years.)

The congressional 9/11 report sheds some further light on this episode, though in highly redacted form.

The NSA had in early 2000 analyzed communications between a person named “Khaled” and “a suspected terrorist facility in the Middle East,” according to this account. But, crucially, the intelligence community “did not determine the location from which they had been made.”

In other words, the report suggests, the NSA actually picked up the content of the communications between Mihdhar and the “Yemen safe house” but was not able to figure out who was calling or even the phone number he was calling from.

“[Y]ou should not assume that the NSA was then able to determine, from the contents of communications, the originating phone number or IP address of an incoming communication to that place in Yemen,” said Philip Zelikow, who was executive director of the 9/11 Commission, in an email to ProPublica. “It would depend on the technical details of how the signals were being monitored.”

It wasn’t until after 9/11 that the FBI figured out that “Khaled” was hijacker Khalid al-Mihdhar, calling from San Diego.

The 9/11 Commission report itself does not appear to describe the communication between Mihdhar and Yemen.

When the Commission report was released in 2004, according to Zelikow, “we could not, because the information was so highly classified publicly detail the nature of or limits on NSA monitoring of telephone or email communications.” Information on the topic remains classified, he added.

Zelikow called Mueller’s recent assertion about the metadata program “accurate and fair.”

“It is definitely possible that, with the kind of databases that Mueller is discussing, used properly, the US government would have been alerted during 2000 to the presence in the U.S. — and possibly the location — of these individuals — and possibly others he did not mention who arrived later,” Zelikow said.

Theories about the metadata program aside, it’s not clear why the NSA couldn’t or didn’t track the originating number of calls to Yemen it was already listening to.

Intelligence historian Matthew Aid, who wrote the 2009 NSA history Secret Sentry, says that the agency would have had both the technical ability and legal authority to determine the San Diego number that Mihdhar was calling from.

“Back in 2001 NSA was routinely tracking the identity of both sides of a telephone call,” he told ProPublica.

The NSA did not respond to a request for comment. The FBI stood by Mueller’s argument but declined to further explain how the metadata program would have come into play before 9/11.

There’s another wrinkle in the Mihdhar case: In the years after 9/11, media reports also suggested that there were multiple calls that went in the other direction: from the house in Yemen to Mihdhar in San Diego. But the NSA apparently also failed to track where those calls were going.

In 2005, the Los Angeles Times quoted unnamed officials saying the NSA had well-established legal authority before 9/11 to track calls made from the Yemen number to the U.S. In that more targeted scenario, a metadata program vacumming the phone records of all Americans would appear to be unnecessary.

That story followed President Bush’s defense of the NSA warrantless wiretapping program, which had just been revealed by the New York Times.

“We didn’t know they were here, until it was too late,” Bush said in a December 2005 live radio address from the White House.

It’s not clear how the wiretapping program would have come into play in the Mihdhar case. The program at issue in 2005 involved getting the actual content of communications, which the NSA had already been doing in the Mihdhar case.

Richard Clarke, who was the White House counterterrorism czar beginning in 1998 and through 9/11, told ProPublica that the NSA had both the ability and legal authority to trace calls from Mihdhar to Yemen in 2000.

“Justice could have asked the FISA Court for a warrant to all phone companies 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 wrote in an email. “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.”

–Justin Elliott, ProPublica

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9 Responses for “Selective Memory Surveillance: Obama, the NSA and September 11”

  1. Herp A. Derp says:

    A person that would exchange liberty for freedom deserves neither.

  2. r&r says:

    I’m not sure it’s selective memory because when ever he opens his mouth nothing but untruths comes out of it.. He’s a disgrace to this country..

  3. rickg says:

    A memo titled “Osama bin Laden Determined to Attach within USA” should have been the key to preventing the 9/11 attacks.

  4. Sgt Saber says:

    Just as Britian is continuing to keep 100% surveillance on the society, so will America. Only problem with this kind of thinking is it will drive most of society UNDERGROUND. Meaning, against their government. When that happens its not to far from anarchy and then REVOLUTION !!!! Live FREE or DIE !!!!

  5. BW says:

    BUT we did have PRISM and the surveillance technology now and the Boston bombing happened.

    We have a 4th Amendment for a reason. Not because it just sounded nice to be in the Constitution but because people actually lived through having no liberties and rights.

    It’s wrong and is that simple.

  6. Magnolia says:

    The US tax codes have already driven many “underground”. That is why we are so short of revenue. Lower the codes and the revenue will flow.

    If spying is so effectively keeping us safe, what happened at the Boston marathon? The Russians warned us more than once. Could it be it was allowed to happen to keep the population sufficiently afraid of the terrorism we no longer have, according to Obama?

  7. Lop Murdoch says:

    If you were to believe the mainstream media, you would see a country coming together to stand behind the Govt. and their case against Edward Snowden. You would be totally fine with your phone being tapped and your emails being read because you would believe it to be a necessary evil in the fight against terrorism. You would see Ed Snowden as a traitor and a spy, who’s only motivation was to gain attention. Yep. Edward Snowden, the nations disgrace, putting his whole life on the line for a reality show, or a book deal, or a hot chick… Whatever.

    Basically, if you believe in the mainstream media, you put your faith in total liars.

  8. NortonSmitty says:

    This is about the funniest thing I’ve read in a while! It’s just as good as some of those Game of Thrones websites where the geeks sit around discussing the strategies of the Lannisters and the Starks. And this article is just as much of a fantasy. But almost all of us keep buying it like the sheep we have become. Like this:
    “Mihdhar and the other hijacker with whom he lived in California, Nawaf al Hazmi, were “experienced mujaheddin” who had traveled to fight in Bosnia in the mid-1990s and spent time in Afghanistan.” No shit. And just how did these poor Saudi boys get to Afghanistan and then Bosnia and probably Chechnya in between, all to fight Russian supported governments? frequent flyer miles? Nope.
    Al-Queida is the Saudi (Wahhabi) answer to the Hezbollah (Shiite) Hamas (Sunni) Fedayeen, or guerrilla troops. Funded and supplied by the House of Saud, Petro-Puppet rulers of Saudi Arabia and trained and rented to our very own CIA, with help from Israeli Mossad and Britain s MI6.
    And I love this jem: “Mihdhar is at the center of the well-known story of the failure of information sharing between the CIA and FBI and other agencies.” and “The CIA missed repeated opportunities to act based on information in its possession that these two Bin Ladin associated terrorists were traveling to the United States, and to add their names to watch lists. Using their true names, Mihdhar and Hazmi for a time beginning in May 2000 even lived with an active FBI informant in San Diego.” The CIA doesn’t publish the names of it[‘s employees? I’m shocked. Shocked!

    Al-Queda has an unbroken work history from it’s inception in Afghanistan through Bosnia, Chechnya all through to Libya and now Syria. But not on 9/11 of course? It was founded and run by one of the Bush family’s old Saudi partners in many businesses. You may have heard of him, Osama Bin-Laden. But I repeat NOT ours on 9/11.. And we believe this bullshit for almost 13 years now. Even though the undeniable scientific and observed facts tell us that the official story being debated in this useless article here was not only impossible, but so implausible that any ten year old could see through the fantasy. Well, if they weren’t bombarded daily by “news” stories like this so incessantly that it must be true, everyone says so. I gotta’ go. We’re debating on a Lord of the Ring site if Ghibly was a double agent for Sauron and Gandalf was a Commie. Buh-Bye.

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