President Obama, other leaders, have warned about danger of letting NSA surveillance lapse
Peter Bergen, David Sterman: Very little useful intelligence has been gained from these programs
Editor’s Note: Peter Bergen is CNN’s national security analyst, a vice president at New America and a professor of practice at Arizona State University. He is the author of “Manhunt: The Ten-Year Search for bin Laden – From 9/11 to Abbottabad.” David Sterman is a Program Associate at New America.
Given the political rhetoric surrounding the expiration of parts of the Patriot Act one would think that it was a disaster for counterterrorism efforts. CIA Director John Brennan told CBS’ Face the Nation that “terrorist elements have watched very carefully what has happened here in the United States.” Sen. Dianne Feinstein stated, “Our national security – not to mention the safety of all Americans – is at stake.”
President Obama himself cautioned, “Heaven forbid we’ve got a problem where we could have prevented a terrorist attack or apprehended someone who is engaged in dangerous activity, but we didn’t do so simply because of inaction in the Senate.”
So is the fear expressed by America’s top officials well founded? The fact is that the legal powers to surveil putative terrorists that expired at the end of May have contributed little to nothing to the U.S. effort to prevent terrorist attacks.
The provision which has received the most attention is the Section 215 Business Records section, which the NSA used as authorization for its bulk collection of millions of American phone records. Yet the NSA’s bulk collection has not prevented a single terrorist attack.
At most, it provided critical information in only one instance of small-scale financing of a terrorist group, the case of Basaaly Moalin, a San Diego cabdriver, and his three co-conspirators who in 2007 and 2008 provided $8,500 to al-Shabaab, al-Qaeda’s affiliate in Somalia.
According to a survey by New America of public records and news reports regarding 294 jihadist terrorism cases in the United States since 9/11, Moalin and his co-conspirators accounted for just over 1% of the cases examined.
Despite the lackluster record of Section 215 in preventing terrorism, politicians have taken the opportunity to portray the expiration of certain Patriot Act provisions as a threat to every American. Far from it; the apocalyptic rhetoric instead reveals how the United States still needs a full and honest public discussion of what forms of surveillance are necessary and legitimate in order to prevent terrorism and what government actions actually are most efficacious in detecting terrorists.
The reality is that the NSA’s surveillance has proven far less effective than traditional investigative methods. More than half of the 294 cases that New America examined were initiated by such techniques as reliance on tips from members of a suspect’s community or family, tips from suspicious members of the public, the use of informants, routine law enforcement, intelligence from sources other than the NSA, or followup after a militant made a public statement regarding their extremist beliefs or actions.
Two recent cases demonstrate the importance of these traditional methods compared to bulk collection of phone records. The investigation into Shannon Conley, a 19-year-old Coloradan who pleaded guilty in September 2014 to trying to join ISIS, was initiated by a tip regarding Conley’s militant religious beliefs.
In another Colorado case in October, three girls from Denver were stopped at Frankfurt airport in Germany while allegedly attempting to join ISIS after their families had reported them missing.
New America’s findings are supported by the Privacy and Civil Liberties Oversight Board, which was established by the implementation of the 9/11 Commission recommendations and had access to classified information and reported in 2014 that, “The investigation of Basaaly Moalin is the only case in which Section 215 records demonstrably contributed to the identification of an unknown terrorism suspect.” The report also noted, “Even without the NSA’s tip-off, however, FBI agents may well have discovered that the number was a common link among pending FBI investigations.”
What of the other expiring government surveillance authorities?
The second expiring authority is the one that allows law enforcement to obtain a roving wiretap warrant for suspects who change communication devices frequently.
Yet, according to reporting by Shane Harris, of the Daily Beast and New America, officials believe authorities would still be able to get a warrant for individuals using multiple devices. Moreover, the expiring roving wire tap provision has rarely been used with only 11 such roving wire tap orders having been issued in 2011, for instance.
The third, the so-called “lone wolf” authority, which allows the government to investigate individuals without a specific terrorist affiliation, has never been used, according to senior administration officials. Michael German, a former FBI agent now working at the Brennan Center for Justice, told The Guardian, “The lone wolf provision was designed to address a hypothetical threat that never materialized, so it was never used. It wasn’t necessary when it was created and it isn’t necessary now.”
For all the billions of dollars that have poured into the counterterrorist industrial complex, the record shows that terrorists largely get caught not by exotic surveillance programs that treat all Americans as potential suspects, but rather by good old fashioned police work, intelligence collection, tips from family and community members, and informants.