In a new decision in support of the NSA’s phone metadata surveillance program, U.S. district court Judge William Pauley cites an intelligence failure involving the agency in the lead-up to the 9/11 attacks. But the judge’s cited source, the 9/11 Commission Report, doesn’t actually include the account he gives in the ruling. What’s more, experts say the NSA could have avoided the pre-9/11 failure even without the metadata surveillance program.
We previously explored the key incident in question, involving calls made by hijacker Khalid al-Mihdhar from California to Yemen, in a story we did over the summer, which you can read below.
In his decision, Pauley writes: “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.”
As his source, the judge writes in a footnote, “See generally, The 9/11 Commission Report.” In fact, the 9/11 Commission report does not detail the NSA’s intercepts of calls between al-Mihdhar and Yemen. As the executive director of the commission told us over the summer, “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.”
To this day, some details related to the incident and the NSA’s eavesdropping have never been aired publicly. And some experts told us that even before 9/11 — and before the creation of the metadata surveillance program — the NSA did have the ability to track the origins of the phone calls, but simply failed to do so.
* * *
* * *
This story was originally published on June 20, 2013 and updated on June 21, 2013.
In defending the NSA’s sweeping collection of Americans’ phone call records, Obama administration officials have repeatedly pointed 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 report produced 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.
Click Here: camiseta seleccion argentina
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 lived with 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?
SCROLL TO CONTINUE WITH CONTENT