[Infowarrior] - Debunking Dianne Feinstein

[Richard Forno]

Michael German October 16, 2013
No NSA Poster Child: The Real Story of 9/11 Hijacker Khalid al-Mihdhar

Michael German is a senior policy counsel at the ACLU’s Washington 
Legislative Office and a former FBI agent.

http://www.defenseone.com/ideas/2013/10/no-nsa-poster-child-real-story-911-hijacker-khalid-al-mihdhar/72047/#.Ul8PLYUY51Y.twitter

Since whistleblower Edward Snowden exposed the incredible scope of the 
government’s domestic spying programs, two different narratives are 
moving forward in Congress.

One, expressed most recently by Sen. Dianne Feinstein, D-Calif., in the 
Wall Street Journal, argues that the government’s collection of all 
Americans’ calling data “is necessary and must be preserved if we are to 
prevent terrorist attacks.”

The other, offered by Sen. Ron Wyden, D-Ore., Rep. James Sensenbrenner, 
R-Ohio, and others is that the Justice Department, National Security 
Agency and FBI have repeatedly misled members of Congress and the public 
about the nature of their spying programs, as well as their 
effectiveness, and they need to be reined in to protect Americans’ rights.

Unfortunately for Feinstein, a simple review of the facts she marshals 
to support her position reveals a total reliance on dubious intelligence 
community statements that have already been widely debunked. The actual 
facts make clear that the NSA doesn’t need an enormous database of 
everyone’s phone records to track a discrete number of terrorists -- the 
NSA just needs to use the traditional tools it has to investigate its 
targets.

Feinstein’s first claim, based on recent testimony from FBI Director 
Robert Mueller and the NSA’s director, Gen. Keith Alexander, is that the 
domestic telephone data collection program would have enabled the 
intelligence community to prevent the 9/11 attacks by revealing that 
al-Qaeda operative and future 9/11 hijacker Khalid al Mihdhar was inside 
the United States. On June 12, 2013, Alexander told the Senate 
Appropriations Committee:

“We all had this concern coming out of 9/11: How are we going to protect 
the nation? Because we did get intercepts on Mihdhar, but we didn’t know 
where he was. We didn’t have the data collected to know that he was a 
bad person. And because he was in the United States, the way we treat it 
is he’s a U.S. person. So we had no information on that.”

Mueller made a similar statement the following day in testimony to the 
House Judiciary Committee:

“[Khalid al-Mihdhar] was being tracked by the intelligence agencies in 
the Far East. They lost track of him. At the same time, the intelligence 
agencies had identified an al Qaeda safe house in Yemen. They understood 
that the al-Qaeda safe house had a telephone, 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 this 
program in place at the time, we would have been able to identify that 
particular telephone number in San Diego.”

The Justice Department previously made this claim in classified talking 
points provided to the Senate and House Intelligence Committees in 2009, 
and again in 2011, as Congress was locked in a debate over reauthorizing 
the Patriot Act.

There are a few problems with using Mihdhar as the poster child for new 
domestic spying programs, however. The intelligence agencies, which 
normally benefit from being able to keep secret any facts that might 
undermine their arguments, seem to have forgotten that the 9/11 
Commission, the Justice Department Inspector General and the 
intelligence committees in Congress published in detail what the 
government knew about Mihdhar before the attacks. It turns out that the 
NSA was intercepting calls to the al Qaeda safe house in Yemen as early 
as 1999, and both the FBI and CIA knew Mihdhar was an al Qaeda operative 
long before the 9/11 attacks.

The safe house was discovered during the FBI’s investigation into the 
1998 bombings of two U.S. embassies in East Africa, and had been 
monitored by the NSA and CIA ever since. The inspector general’s report 
couldn’t be clearer that the intercepts were being broadly shared:

“The NSA’s reporting about these communications was sent, among other 
places, to FBI Headquarters, the FBI’s Washington and New York Field 
Offices, and the CIA’s CTC. At the FBI, this information appeared in the 
daily threat update to the Director on January 4, 2000.”

Intercepted communications from this location allowed the CIA to follow 
Mihdhar to an al Qaeda meeting in Kuala Lumpur in January 2000. Though 
they lost him in Thailand, as Mueller suggested, the CIA knew he had a 
visa to enter the United States and that his travel companion and fellow 
hijacker, Nawaf al Hazmi, had a plane ticket to fly to Los Angeles.

The CIA, however, failed to place Mihdhar on a watch list or “notify the 
FBI when it learned Mihdhar possessed a valid U.S. visa,” according to 
the 9/11 Commission report. The inspector general’s report revealed that 
five FBI officials assigned to the CIA Counterterrrorism Center viewed 
CIA cables indicating Mihdhar had a U.S. visa. A week after the Kuala 
Lumpur meeting, Mihdhar and Hazmi flew into Los Angeles International 
Airport and entered the United States without a problem. After their 
entrance, the NSA would intercept at least six calls from the al Qaida 
safe house in Yemen to the United States, according to the Los Angeles 
Times.

By all accounts FBI officials knew Mihdhar had a visa to enter the 
United States by July 2001, and knew he was in the United States by 
August 22, 2001. As the Joint Intelligence Committee investigation found:

“A review was launched at CIA of all cables regarding the Malaysia 
meeting. The task fell largely to an FBI analyst assigned to CTC. On 
August 21, 2001, the analyst put together two key pieces of information: 
the intelligence the CIA received in January 2000 that al-Mihdhar had a 
multiple entry visa to the United States, and the information it 
received in March 2000 that al Hazmi had traveled to the United States. 
Working with an INS representative assigned to CTC, the analyst learned 
that al-Mihdhar had entered the United States on January 15, 2000, had 
departed on June 10, and had re-entered the United States on July 4, 2001.”

Yet neither the FBI nor NSA apparently attempted to trace the calls 
coming into the al Qaeda safe house until after 9/11, when telephone 
toll records obtained by the FBI confirmed Mihdhar made the calls.

In other words, the problem was not that the government lacked the right 
tools to do its job (it had ample authority to trace Mihdhar’s calls). 
The problem was that the government apparently failed to use them.

It’s pretty cynical for the intelligence community to use its repeated 
failures to properly assess information it collected prior to 9/11 as 
justification for wholesale spying on Americans. But Feinstein’s 
continuing reliance on the Mihdhar canard is even more inexplicable 
given that ProPublica published an article thoroughly rebutting these 
claims shortly after Alexander’s and Mueller’s June 2013 testimony. It’s 
troubling when the Senate Intelligence Committee Chairwoman ignores more 
accurate information from public sources in deference to U.S. 
intelligence agencies, which have not only misled members of Congress 
but the Foreign Intelligence Surveillance Court, as well.

But Feinstein doesn’t only peddle falsehoods from the past. She then 
points to the NSA’s claim that dozens of terrorist events were disrupted 
through these domestic spying programs, though this too was publicly 
debunked. During a Senate Judiciary Committee hearing on Oct. 2, 2013, 
Sen. Patrick Leahy, D-Vt., questioned.Alexander directly on the NSA’s 
claims that these programs prevented 54 terrorist plots. Leahy called 
them “plainly wrong” and pointed out that the listed incidents “weren’t 
all plots and they weren’t all thwarted.” Only 13 had any nexus to the 
U.S. and only one case relied on the bulk call records’ program in a 
significant way. And even that case didn’t involve any plot on the US -- 
it involved a material support prosecution relating to someone who 
allegedly sent $8500 to al Shabaab in Somalia.

Alexander sheepishly agreed with Sen. Leahy’s analysis, leading the 
senator to tell the NSA director that the government’s use of inaccurate 
statistics undermined its credibility with Congress and the American 
people. Feinstein was on hand when Alexander admitted to Leahy that 
these statistics were misleading.

These repeated efforts to mislead Congress and the American people only 
make the case more strongly that the government’s surveillance 
authorities need to be sharply curbed with strong legislation that ends 
the bulk collection programs, protects Americans’ private communications 
and adds more transparency and public accountability to these 
activities. Americans have the right to truthful information about their 
government’s intelligence activities, and the current oversight system, 
which depends on whistleblowers willing to risk jail, certainly isn’t 
working.

Michael German is a senior policy counsel at the ACLU’s Washington 
Legislative Office and a former FBI agent.


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Just because i'm near the punchbowl doesn't mean I'm also drinking from it.