In Congress, Our Intelligence Overseers Cheerlead the NSA

Oversight committees in the Senate and the House should engage in constant and probing questioning, yet the posture of the two intelligence committees, hoodwinked by the runaway NSA, is essentially “why didn't they tell us?”.

Instead of realizing that theirs is an adversarial role that calls for deep suspicion and pressing for answers, both Dianne Feinstein (D-Ca) and Mike Rogers (R-Mi), the chairs of their respective Senate and House committees, have become shills for the sixteen (yes, there are sixteen) intelligence gathering fiefdoms. They've been taken by surprise as each day brings revelations of further snooping they knew nothing about — the Google and Yahoo transmissions, 70 million digital communications inside France in a single month, taps on the cell phones of heads of state, possibly the Pope.

mother hen at the senate

No one told Sen. Feinstein about NSA’s spying on Angela Merkel, and it's been going on since 2002, well before she became the German Chancellor. Feinstein expressed outrage, yet we note she has no objection to NSA spying on every last one of 317 million Americans. In fact, while some bills in Congress aim to curtail government spying, Feinstein is promoting the FISA Improvements Act, which would make it explicitly legal for NSA to do what it now does using loopholes in the law — searching to identify Americans in captured international phone and e-mail traffic without a warrant. She believes that civil liberties and the inviolacy of home and hearth explicit in the 4th Amendment will just have to be set aside while the government employs any and all extremes to protect the United States from another 9/11 attack.

Feinstein had to reach that far back on the calendar to make her case in a recent Wall Street Journal op-ed titled “The NSA’s Watchfulness Protects America”. She made the extravagant claim that “if today's call-records program had been in place in before 9/11, the terrorist attacks likely would have been prevented”. Really? How?

Well, in 2001 the CIA was tracking two Saudis in Malaysia who would become 9/11 hijackers. They had given CIA the slip and flown to Los Angeles. The senator may not know that they had not been put on a watch list to block their entry. She tells of our agents knowing the phone number of an al Qaeda safe house in Yemen and learning after 9/11 that one of the Saudis, Khalid al-Mihdhar, had called the number from the U.S. If we had been collecting every phone call in America back then, our FBI would have caught them calling Yemen and thwarted the attack.

Really? That would be the FBI that, asked by the CIA to review the material on the two Saudis in 2001, gave it to an agent in Boston to look over “in her free time”. She began on July 24 and learned from the INS that the two might be in country. She informed the FBI’s counter-terror center in New York but labeled her e-mail “routine”, which gave them 30 days to respond. By then, one operative was listed in the San Diego phone book.

That would be the FBI that failed to follow up when their field agent in Phoenix reported to Washington in July 2001 that young Arabic speakers were locally seeking flight training. He urged a nationwide check of flight schools. Nothing was done.

That would be the FBI headquarters that refused to authorize a warrant for the Minneapolis office to search the living quarters of a student at a flight school named Moussaoui who wanted to learn only how to steer a plane, not how to take off or land. He was later found to have the telephone number in Germany of a ringleader of the terrorist cell that carried out the 9/11 attacks.

Or that would be the FBI that did nothing in response to the Phoenix office suggesting that the Bureau track aviation schools because of its noticing "an inordinate number of individuals of investigative interest" learning how to fly.

Or that would be the CIA whose chief, George Tenet, when asked why the CIA had done nothing to track down Marwan al-Shehhi, the pilot who crashed the south tower of the World Trade Center, said that German intelligence “gave us a name, Marwan — that's it — and a phone number”.

So much for FBI/CIA's skill with phone numbers back then, yet Feinstein wants us to believe that they would surely have caught that one call from Yemen and "likely" have prevented 9/11.

Back to the present, Sen. Feinstein continued to say that call records “and other NSA programs have aided efforts…to disrupt terrorism in the U.S. approximately a dozen times in recent years”.

A dozen? Gen. Keith Alexander, head of the NSA, testified in defense of phone record capture before the House Select Intelligence Committee that more than 50 terrorist attacks had been disrupted. He pledged to come up with "a list" in a matter of days but never did. We could find no further mention of a list in the media, which took him at his word and moved on. Our government usually rushes to the cameras to report any terrorist killed or plot confounded, so we were suspicious whether phone records had produced any results whatsoever.

About a month later, Sen Patrick Leahy (D-Vt), chairman of the Senate Judiciary Committee, was apparently handed such a list — classified of course, as is virtually everything this government does — of 54 incidents. Leahy deflated Alexander's claims, saying the list does not show that “dozens or even several terrorist plots” and that they "weren’t all plots and they weren’t all thwarted”. Only 13 had any nexus in the U.S., only one relied on phone call records, and that involved a "material support" prosecution — money sent to al Shabaab in Somalia, not a plot. Nothing persuasive has been made public to justify the wholesale spying on the American public that Feinstein says "protects America".

Other claims in her op-ed of aborted plots all originated overseas with no mention by her of U.S. phone records coming into play, and yet “The NSA call-records program is working and contributing to our safety. It is legal”, she wrote. That's a highly questionable assertion. Her claim rests entirely on Section 215 of the Patriot Act. That section allows the FBI’s national security branch to subpoena an enterprise’s “business records”, but instead of what you would expect “business records” to refer to — a company’s financial and accounting data, purchasing records, contracts, personnel files, etc. — NSA reached past all that to grab instead the phone companies' customers’ private activity — the phone records of the entire nation.

It is safe to say that no Congress member envisaged the law to mean that. The abuse led Rep. James Sensenbrenner (R-Wi) to say in a letter to Attorney General Eric Holder, “The administration claims authority to sift through details of our private lives because the Patriot Act says that it can. I disagree. I authored the Patriot Act, and this is an abuse of that law”.

Feinstein’s counterpart in the House is Michigan Republican Mike Rogers, chairman of the House Select Intelligence Committee. Rogers is an unabashed defender of NSA spying. Challenged in a hearing by a law professor that the NSA is violating the 4th Amendment, his answer was, "I would argue that maybe the fact that we haven't had any complaints …clearly indicates in ten years that somebody must be doing something exactly right". Well, sure, how would anyone know to complain if they don’t know they are being spied on? Then came this sentence: "You can't have your privacy violated if you don't know your privacy is violated, right?"

In a Sunday interview he was asked if he thought it appropriate to listen in on German Chancellor Angela Merkel's cell phone. “Think about this”, he answered. “In the 1930s we had this debate before… and we decided we were going to turn off our ability to listen to friends...we're not going to do any of those things... Well look what happened in the 30s: the rise of fascism, the rise of communism, the rise of imperialism and we didn't see any of it. And it resulted in the deaths of tens of millions of people".

It was a bravura show of utter ignorance of history, starting with there being no ability then to listen in on heads of state, and ending with the notion that no one was aware of Hitler and the Red Scare (or Mussolini invading Ethiopia, Japan in Manchuria and China, the Sudetenland, the Anschluss, etc.). But set that all aside. He is saying this is likely to happen again if we don’t listen in on Angela.