Tag: robert mueller

The Defense of NSA Spying that Wasn’t

In an interview with CNN yesterday, outgoing FBI director Robert Mueller offered up words one could characterize as defending mass surveillance of all Americans’ phone calling. Indeed his interview has been portrayed as a defense of such spying, with outlets like NRO’s “The Corner” reporting “Outgoing FBI Chief: ‘Good Chance’ NSA Would Have Prevented ‘Part’ of 9/11.” But Director Mueller spoke much more equivocally than that.

Here’s what he actually said.

CNN: If we had the kind of intelligence that we were collecting through the NSA before September 11th, the kind of intelligence collection that we have now, do you think 9/11 would have been prevented?

MUELLER: I think there’s a good chance we would have prevented at least a part of 9/11. In other words, there were four planes. There were almost 20 — 19 persons involved. I think we would have had a much better chance of identifying those individuals who were contemplating that attack.

CNN: By this mass collection of information?

MUELLER: By the various programs that have been put in place since then. … It’s both the programs (under the Patriot Act) but also the ability to share the information that has made such dramatic change in our ability to identify and stop plots.

Mueller vaguely cited “various programs,” giving them a retroactive chance of preventing “a part of 9/11.” But even this defense of post-9/11 powers is insufficient.

In our 2006 paper, “Effective Counterterrorism and the Limited Role of Predictive Data Mining,” IBM scientist Jeff Jonas and I recounted the ease with which 9/11 attackers Khalid al-Mihdhar and Nawaf al-Hazmi could have been found had government investigators pursued them with alacrity. The 9/11 Commission said with respect to al-Mihdhar, “No one was looking for him.” Had they been caught and their associations examined, the 9/11 plot probably could have been rolled up. Sluggish investigation was a permissive factor in the 9/11 attacks, producing tragic results that nobody foresaw.

That absence of foresight is a twin with retrospective assessments like Mueller’s, which fail to account for the fact that nobody knew ahead of 9/11 what devastation might occur. Immediately after the 9/11 attacks, everybody knew what such an attack could cause, and everybody began responding to the problem of terrorism.

Would Patriot Act programs have prevented at least a part of 9/11? Almost certainly not, given pre-9/11 perceptions that terrorism was at the low end of threats to safety and security. A dozen years since 9/11, terrorism is again at the low end of threats to safety and security because of multiplicitous efforts worldwide and among all segments of society. It is not Patriot Act programs and certainly not mass domestic surveillance that make us safe. Even Mueller didn’t defend NSA spying.

How Many 215 Orders?

There was an interesting exchange during a Senate Intelligence Committee hearing yesterday concerning the use of the Patriot Act’s §215 orders for business records and other tangible things. FBI Director Robert Mueller hinted that the orders may have been used to track purchases of hydrogen peroxide purchases in the investigation of aspiring bomber Najibullah Zazi, while Sen. Ron Wyden (D-Oreg.) asserted that there is “a huge gap today between how you all are interpreting the PATRIOT Act and what the American people think the PATRIOT Act is all about and it’s going to need to be resolved.”

Let’s leave our curiosity about that by the wayside for the moment, though. I’m curious about one simple empirical claim Mueller made in his testimony: That the provision has been used over 380 times since 2001. I assume he’d know, but that seems inconsistent with what’s been publicly reported to date. It’s worth noting that there are actually minor discrepancies between the numbers provided in Congressional Research Service reports, audits from the Office of the Inspector General, and the Justice Department’s annual reports to Congress. But there are plenty of legitimate reasons these numbers might vary depending on how you count, and the total variance is a difference of about 17 orders total over the years.

We know from those Inspector General reports that the majority of those 215 orders issued were “combination” orders issued in tandem with another type of surveillance order called a “pen register” so that investigators could get subscriber information about the people whose communications patterns they were tracking. When Congress amended the Patriot Act in 2006, it built that authority right into the pen register statute, making it unnecessary to seek those “combination” orders. Prior to the amendment, the government got 173 of those “combination” orders. “Pure” 215 orders, which are now the only type needed, have been used much more sparingly. None were issued at all until 2004, and from 2004 through 2009 (depending on whose tally you want to use) there were between 75 and 92 orders issued (for an average of 12–15 annually since 2004). Throw in the combination orders and the upper-bound number through the end of 2009 is 265 orders.

Unless I’ve miscounted or missed something significant—you can get the reports at the links above and check my math—that leaves 115 orders unaccounted for, assuming Mueller’s number is accurate. There are two possibilities, then: Either the government got ten times as many orders in 2010 as the historical average (the figures should be out sometime in April) or there are a whole lot of these missing from the public reporting. Possibly these have something to do with the “sensitive collection program” in which these orders play a key role, alluded to in a Justice Department official’s testimony at a hearing during the 2009 reauthorization debate. Either alternative seems like it would merit additional scrutiny. I sent an e-mail seeking clarification this morning to some of the experts at the Congressional Research Service responsible for keeping legislators informed on these issues, but haven’t yet heard back.

I’m not belaboring this because it’s inherently hugely significant whether the government has used this authority 265 times or 380. Ideally, in the coming months we’ll see a substantial narrowing of National Security Letter authority, which would predictably lead to a large increase in the number of 215 orders issued. And that would be entirely proper, since it would mean more information being sought pursuant to a judicial order rather than FBI fiat. What I do think is significant, however, is that this reminds us how little we know—and how little the vast majority of legislators know—about the use of these powers. In contrast with criminal investigative tools, these powers are entirely covert: People whose records are swept up by the government almost never learn about it, and the recipients of the orders are subject to an effectively permanent gag on speaking about them. Rulings of the secret FISA Court interpreting the scope of these authorities are never made public. Our assurance that they have been or will continue to be used properly rests entirely on the minimal required reporting to Congress and the findings of internal audits. And yet it’s hard to pin down the facts on even this most elementary factual question about 215 orders: How many times have they been used?

Despite this, we have legislators confident enough that these expanded powers are both so necessary and so well controlled that they’re advocating making them permanent. I wish I were as confident.

And Of Course They Won’t, No Not Until The Next Time

Here is the test of whether we still live in a society governed by the rule of law: Will anyone at the FBI be fired over the latest report out of the Office of the Inspector General?

Let’s review. Earlier this year, a comprehensive OIG report revealed that for years the FBI had ignored the paper-thin procedures demanded by our National Security Letter statutes to obtain sensitive telecommunications records of thousands of Americans, not just without a court order—because apparently we’re fine with that now—but without any kind of legitimate process at all. With nothing more elaborate than a Post-It Note requesting the data. As far as the public record is concerned, nobody has suffered any consequences for this massive abuse of the public trust.

Now we learn that an FBI supervisor, in an exercise of spectacularly poor judgment, sent a rookie out to monitor an antiwar rally—evading the charge of monitoring Americans based exclusively on the basis of First Amendment protected activity only because of the laughable pretext that said rookie was there to eye the crowd for any international terrorists who might be in attendance. Fine.  But when Congress got wind of this and began to inquire into why this had occurred—and why said rookie had filed a report on “antiwar activity” that focused on whether any persons of apparent “Middle Eastern descent” had been involved—the OIG found that someone at the FBI had utterly fabricated a retroactive justification for the investigation, involving dubious “terror suspects” that nobody had actually believed at the time might be present at this rally.

According to the FBI, this fabrication was then offered up by FBI Director Robert Mueller before the Bureau’s overseers in Congress. This leaves us with a limited number of possibilities. One is that the head of the FBI was aware of and welcomed what the OIG determined to be a complete invention designed to cover up for an improper investigation. If that’s what happened, the head of the FBI committed perjury and should be prosecuted for it. But the OIG doesn’t believe that’s how it went, and I’m inclined to believe them: It would be irrational to risk perjuring oneself before the Senate Judiciary Committee over a minor error like this, however foolish.

But then someone gave the FBI director a pack of lies to feed to Congress, and the OIG was inexplicably unable to trace this fabrication to its source—which even allowing for the FBI’s massively dysfunctional computer systems seems implausible. So now we have a pressing question: If we don’t think the head of the FBI decided to lie to Congress, who concocted the lies he told them? Are we to believe that the nation’s top cops are either so inept or so indifferent to the question that they can’t answer it? I suspect they very well could find out if they were so inclined. If they don’t, and if there are no consequences for this clumsy cover-up, why should we believe that congressional oversight of intelligence will ever discover or check abuse of investigative power? The message will be clear: Concoct lies to protect your bosses, and your colleagues will wink at your deception, perhaps grateful for having been spared the obligation of making up their own lies.  One lie out of a hundred might be called out in an OIG report—they only have so much time and so many resources—but even if it is, no harm will come of it. The investigators will be mysteriously unable to identify the liar, and everything will blow over. Why risk telling the truth? The initial fuss will subside, and Americans will soon enough be distracted by the next episode of Jersey Shore.

I think we’ve had quite enough of that.  Someone at the FBI decided that it was a good idea to lie to Congress in order to cover up improper monitoring of an unpopular political group.  In this case, it was pacifists, but who knows who’ll be next. If brazen lies aren’t punished the one case out of a dozen or a hundred that draw the attention of the overseers, why should they ever bother to observe the rules? So watch the Department of Justice.  If someone is fired over this, maybe we still live in a country governed by the rule of law. If not, they’re convinced we’re so dim and besotted by reruns of Friends that they no longer even feel obliged to put up a good show.

So-Called Stimulus Could Lead to $50 Billion of Fraud

MarketWatch reports that experts are predicting about $50 billion of fraud will result from the $787 billion pork-barrel spending bill approved by Congress earlier this year. That’s a huge amount of fraud being financed with borrowed money, but there is a silver lining to this dark cloud. Using basic math, that means only $737 billion of the so-called stimulus can be classified as waste:

Swindlers, con men, and thieves could siphon off as much as $50 billion of the government’s planned stimulus package as the money begins flooding the economy in coming months, according to David Williams, who runs Deloitte Financial Services Advisory and counsels clients on fraud prevention.

…Earlier this month, FBI Director Robert Mueller warned the nation to brace for a potential crime wave involving fraud and corruption related to the economic stimulus package. “These funds are inherently vulnerable to bribery, fraud, conflicts of interest, and collusion. There is an old adage, that where there is money to be made, fraud is not far behind, like bees to honey,” Mueller said.