NSA DATA COLLECTION PROGRAM: THE CHALLENGE OF ASSESING EFFECTIVENESS
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Authors DEIBEL, CHARLES LOUIS, II
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NSA DATA COLLECTION PROGRAM:
THE CHALLENGE OF ASSESING EFFECTIVENESS
By
CHARLES LOUIS DEIBEL II
______
A Thesis Submitted to The Honors College
In Partial Fulfillment of the Bachelors degree With Honors in
Political Science
THE UNIVERSITY OF ARIZONA
M A Y 2 0 1 6
Approved by:
______
Dr. John Tidd School of Government and Public Policy
Abstract
The National Security Agency (NSA) has played a key role in the United States
Government’s counterterror program since September 11. Over the last 15 years, the
NSA has faced considerable controversy regarding its counterterrorism data collection program and the legal authority behind it. This paper, however, is concerned with whether or not that program has been effective in preventing Islamist related or inspired terror attacks inside the United States. As NSA capabilities and authorities have expanded since 9/11, has it been effective in helping to prevent attacks in the U.S.?
Definitively answering this question is extremely difficult, given significant challenges regarding the amount and quality of public information concerning NSA’s involvement in prevented terror attacks. Yet, this does not mean that some preliminary conclusions cannot be made regarding NSA’s involvement in counterterror cases. A review of two separate data-sets that catalog Islamist inspired or related terror plots, has permitted certain inferences regarding NSA’s involvement in particular cases. This effort has nonetheless highlighted the difficulties faced by public researchers in studying a clandestine agency’s implementation of policy.
Introduction
The terrorist attacks of 9/11 significantly changed the landscape of America’s national security policies. Our country became faced with a new, challenging threat that was unlike anything we had faced in our past. In the weeks following 9/11, in an effort to combat this new threat, President Bush authorized the National Security Agency to initiate the classified “President’s Surveillance Program” (PSP).1 The main goal of this
1 Unclassified Report on the President’s Surveillance Program, 1
program was to help the federal government prevent terrorist attacks by radical, extremist groups against the U.S. homeland. The intention of the PSP was for the NSA to intercept different forms of electronic communication between known and suspected terrorist groups and individuals in the United States.2 Shortly following the inception of the PSP,
Congress passed H.R. 3162, the “Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act,” a.k.a. “The USA
PATRIOT Act”3. This new law, mostly an amendment to the “Foreign Intelligence
Surveillance Act” (FISA) of 1978, expanded the government’s search and seizure authority and eliminated many legal and bureaucratic impediments to the sharing of information.4 In essence, it attempted to give the law enforcement and intelligence communities more robust tools in order to combat terrorism.5 With these new laws and authorizations, the NSA started carrying out what would be at times a highly controversial data collection program*.
While much discussion has focused on whether this program, and the NSA’s implementation of it, are right or wrong, much less effort has focused on whether it has been an effective policy. This paper will focus on the effectiveness of the NSA’s data collection program with respect to preventing Islamist related or inspired terrorist attacks in the United States. Highlighting this issue is vital to the debate over whether the federal government has made the right decisions in regards to how the program might affect such
2 Ibid. 3 Robert P. Abele, A User’s Guide to the USA PATRIOT Act (Lanham: University Press of America, Inc., 2005), 23. 4 Eric A. Posner and Adrian Vermuele, Terror in the Balance: Security, Liberty, and the Courts (New York: Oxford University Press, 2007), 7-8. 5 Howard Ball, The USA PATRIOT Act (Santa Barbara: ABC-CLIO, 2004), 50. * While NSA collects a wide variety of information, the term “data collection program” will refer to its post-September 11 efforts to acquire intelligence regarding foreign terrorist operations. 2
related issues as privacy and civil liberties. If the effectiveness of the policy can be empirically measured, it can help inform both elected officials and the public as to the actual impact of this policy. Measuring the effectiveness of a given national security policy can not only shed light on the policy in question, but can also add substance to the debate over balancing civil liberties against security.
More broadly, an attempt to measure effectiveness of the program will help to illustrate what we can know, and not know, about certain classified programs and policies. An honest, transparent debate between the public and the government about policy is a hallmark of the democratic system in the U.S., and studying national security policy academically can help remove partisan biases from the equation. An honest search for the facts is truly important in informing the public and policy makers, but given the clandestine nature of our country’s intelligence community and some federal law enforcement activities, finding vital information to answering certain questions becomes extremely difficult. It is not as if the information does not exist; most of it is just not available to the public. Even with this information gap, however, one can still paint a general picture to infer the effectiveness of certain national security policies.
Much of the current controversy regarding the NSA’s data collection program, and the USA PATRIOT Act generally, revolves around the debate over whether these laws and policies to hinder terrorist’s ability to execute terrorist attacks in the United
States have come at the cost civil liberties.6 This debate is crucial and its importance cannot be understated. Much of the literature regarding the NSA programs and the USA
PATRIOT Act focuses on this, but this paper is concerned with the following question:
6 C. William Michaels, No Greater Threat: America After September 11 and the Rise of a National Security State (New York: Algora Publishing, 2002), 48-50. 3
has the NSA been effective in executing its goal of directly preventing, or assisting in the prevention of, terrorist attacks in the U.S. through its data collection program and thus, helped save American lives and property?
There are many different criteria that can be used when attempting to evaluate a specific policy. Measuring the effectiveness of the NSA’s data collection program could be done in a couple ways. Michael Kraft and Scott Furlong highlight four criteria that are of critical consideration: effectiveness, efficiency, equity, and political feasibility.7 An economic cost-benefit analysis could be done to show if the benefits of the program outweigh the costs. But the focus of this paper is not on the monetary or physical costs of the program. While the budgetary costs are an important consideration in regards to a specific policy, that discussion does not pertain to whether that policy has achieved its intended goals. Likewise, it is extremely difficult to measure empirically the benefits of a prevented terrorist attack. One cannot easily measure the number of lives, or the amount of property, saved from a prevented terrorist attack, though the government has made calculations as to the value of a life.8 That is why this paper will not attempt a cost- benefit analysis, but will assess effectiveness as measured by the number of terrorist attacks prevented primarily by the NSA’s data collection, or terrorist attacks prevented where the NSA assisted in the investigation. Even this measurement is not fully comprehensive, as will be discussed in detail later.
The NSA does not work in a vacuum, and it is usually not a lead investigator in terrorism cases. That means that law enforcement and intelligence agencies, like the FBI
7 Michael E. Kraft and Scott R. Furlong, Public Policy: Politics, Analysis, and Alternatives, (Washington D.C., CQ Press, 2007), 26. 8 Ibid, 162. 4
and CIA, rely on the NSA in helping them with ongoing investigations. While research for this cannot say with certainty whether or not the NSA’s data collection program is effective due to some significant challenges and issues, there is enough information available to draw at least some preliminary conclusions. Controversy and legality aside, this paper will explore the hypothesis that NSA’s data collection program has been effective in helping to prevent terrorist attacks since 9/11.
Variables
When attempting to assess a government policy or program it is essential to clearly describe the policy and its impact on the public problem it is seeking to address.
For the purpose of this paper, the policy (the independent variable) will be the expanding robustness of NSA’s data collection program, from shortly after 9/11 to the present day.
The impact (the dependent variable) will be the growth in the NSA’s program’s effectiveness in helping to prevent Islamist related or inspired terrorist attacks inside the
United States.
With respect to the independent variable, the NSA’s data collection program is not unique in the U.S. government. While the USA PATRIOT Act and the NSA
Programs have received the most attention and criticism in regards to federal surveillance following 9/11, they are by no means the “be all, end all” of federal data collection and analysis. In 2004, the Government Accountability Office reported that 52 of the 128 federal departments and agencies surveyed were conducting, or planning to conduct, data mining, and data collection programs for a myriad of reasons, such as improving service or performance, detecting fraud and waste, analyzing scientific information, thwarting
5
criminal activity, and preventing terrorism.9 Of those 199 data mining operations, 14 were for counterterrorism purposes.10 This highlights the fact that the legislation enacted following 9/11 did not just affect the NSA, nor was the NSA the only agency to have its authority expanded. The Department of Defense (DoD), the Central Intelligence Agency
(CIA), the Department of Education (DoE), and the Department of Justice (DoJ) all have agencies that operate programs that surveil and collect data in order to prevent terror attacks.11 While any of these programs could be evaluated for effectiveness, the media coverage, unauthorized leaks, and public discourse and controversy regarding the NSA’s data collection program make it a prime candidate for evaluation.
In order to assess the effectiveness of a particular government policy, one has to clearly define the policy and timeframe in question. Despite the fact that the NSA was certainly utilized in a domestic context prior to 9/11, this paper will only concentrate on the NSA’s data collection program activity following 9/11.12 The reason for restricting the time to post-9/11 is because of the legislation that was passed in response to the attacks, specifically the USA PATRIOT Act, which greatly altered the policy regarding the NSA’s surveillance authorities, and the national dialogue that has been occurring regarding privacy and security since that fateful day.
In regards to the dependent variable, the program’s effectiveness, establishing the counterterrorism goals of the program is critical. One only needs to look to the last sentence of the NSA’s mission statement to discern the agency’s goals, in this regard:
9 United States General Accounting Office, Data Mining: Federal Efforts Cover a Wide Range of Uses, Rep. No. GAO-04-548, May 2004, (Washington D.C.), 1. 10 Ibid. 11 Laura K. Donahue, The Cost of Counterterrorism: Power, Politics, and Liberty (New York: Cambridge University Press, 2008), 257. 12 Bruce Schneier, “Project Shamrock,” schneier.com, Dec. 29, 2005, https://www.schneier.com/blog/archives/2005/12/project_shamroc.html. 6
“This Agency also enables Network Warfare operations to defeat terrorists and their organizations at home and abroad, consistent with U.S. laws and the protection of privacy and civil liberties”.13 It is obvious, then, that the NSA’s data collection program in essence is the execution of government policy. Therefore, we can examine the NSA’s data collection program through the lens of policy effectiveness.
Social scientists have espoused a variety of definitions apropos of public policy over the years. Generally speaking, public policy is what government officials “choose to do or not to do about public problems”.14 In a more formal sense, a public policy is a
“standing decision characterized by behavioral consistency and repetitiveness on the part of both those who make it and those who abide by it”.15 Public policy can come in many different forms and titles, but each addresses a certain set of problems. For example, the
United States government establishes foreign and domestic policy to handle different situations and issues. While these different policies can seem distinct and separate, they are not, and they certainly do not exist in a vacuum.
It is also necessary to distinguish policy outputs from policy outcomes. Policy outputs are the formal activities that a government employs to pursue its goals.16 Thus,
NSA’s data collection program can be characterized as a function of national security policy output. A policy outcome is the intended or unintended consequences the policy in question has on society.17 That is where this paper will focus: the outcomes of the NSA’s data collection program measured by its overall effectiveness. Thus, for the purpose of
13 National Security Agency, “NSA/CSS: Mission,” last modified April 15, 2011, accessed February 19, 2016, https://www.nsa.gov/about/mission/index.shtml 14 Kraft and Furlong, Public Policy, 4. 15 Heinz Eulau and Kenneth Prewitt, Labyrinths of Democracy (Indianapolis: Bobbs-Merrill, 1973), 465. 16 Kraft and Furlong, Public Policy, 5. 17 Ibid. 7
this paper, effectiveness will be measured by Islamist related or inspired terror plots prevented as compared to such terror plots not prevented where the NSA played a role in the investigation. Two separate data-sets, The Heritage Foundation’s interactive terror timeline and New America’s terror plots data-set, will be utilized in order to assess the publicly available information regarding terror plots. These data-sets will be collated, analyzed, and synthesized so as to assess their salience towards the question at hand.
Paper Outline
Before the effectiveness of the NSA data collection program can be evaluated, the agency needs to be put in context in relation to the rest of the intelligence community. A brief history of the agency will illustrate how the NSA has evolved into the agency it is today. This will serve to show what the agency was like before 9/11, and how it now fits into U.S. counterterror operations.
The basics of the NSA’s data collection program will be clearly and thoroughly explored in the next section. With any mission, a task and purpose is necessary, and that is no different for the NSA’s data collection program. As with any federal program or policy, it is based on law and executive authority. The legislation and executive orders that the NSA’s data collection operate under will be established. With this legal authority, the NSA has the authority to collect different types of data and information. This section will highlight what kinds of data the NSA collects and how.
The paper’s subsequent sections will attempt to show whether the NSA’s data collection program has been effective in preventing terrorism. The methodology of this paper will be detailed, along with the sources of the known cases, and the validity of
8
those sources. But because the NSA is a clandestine agency, there are considerable limits to the publicly available data.
The results of the investigation will be highlighted as best as possible from the publicly available information. As previously mentioned, the results of the investigation will not be comprehensive, and the discrepancies will be fully explained. While the results will not be fully comprehensive, an educated guess regarding the effectiveness of the NSA data collection program in preventing terrorist attacks on U.S. soil can still be made. This will lead to a discussion of confounding variables and areas of further research.
National Security Agency: Context and History
The US Intelligence Community
While the NSA has its specific responsibilities, it is only a part of what is known as the U.S. Intelligence community. Following the Japanese attack on Pearl Harbor,
American legislators and policymakers realized that they needed to know as much as possible about their adversaries, and allies, in order to ensure the security of the nation.
This is not to suggest that intelligence was not utilized prior to WWII, but it generally was only utilized heavily during a military conflict.18 Following WWII, President
Truman signed the National Security Act in 1947, creating the first post-war national security framework.19 Throughout the following decades the United States’ intelligence
18 Phyllis Provost McNeil, “The Evolution of the U.S. Intelligence Community- An Historical Overview,” in Intelligence: The Secret World of Spies, ed. Loch K. Johnson and James J. Wirtz (New York: Oxford University Press, 2015), 25. 19 Ibid, 29. 9
community’s growth and multi-agency structure would be significantly shaped by legislation and world events.20
Following 9/11 and the Iraq war, Congress and President Bush realized the need for reform in the intelligence community.21 In regards to 9/11, the hijackers were able to live within the United States, some for as long as 20 months, prior to the attack.22 That the hijackers were able to slip through the cracks of the U.S intelligence community and local law enforcement showed inherent flaws that needed to be fixed. What became referred to as “the wall”, the procedures that impeded the sharing of information in and between intelligence agencies and local law enforcement, was one of the main reasons the community was not able to “connect the dots”.23 Intelligence of the Saddam Hussein regime’s WMD program was used as a main justification to invade Iraq 2003.24 When the invasion did not produce any major discoveries of WMDs and turned into a long, drawn- out conflict, the Bush Administration was left scrambling. In response to these events, the
Department of Homeland Security (DHS) was established on November 25, 2002.25
Following the Homeland Security Act, signed on December 17, 2004, President Bush signed the Intelligence Reform and Terrorist Prevention Act (IRTPA).26 While different government programs and agencies were relocated to the new DHS, one of the
Department’s main functions is to assist the intelligence community with the
20 Ibid, 30-35. 21 Stansfield Turner, “Intelligence and the Second Bush Administration,” in Intelligence: The Secret World of Spies, 43. 22 James Bamford, The Shadow Factory, (New York: Anchor Books, 2008), 21. 23 9/11 Commission Report, 79. 24 MSNBC Documentaries, “How the Bush Administration sold the Iraq War,” msnbc.com, March 22, 2013, http://www.msnbc.com/msnbc/how-the-bush-administration-sold-the-iraq-war. 25 Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002). 26 Turner, “Intelligence and the Second Bush Administration,” 43. 10
coordinating, analyzing, and disseminating intelligence and information.27 This responsibility fell to the Department’s Directorate for Information Analysis and
Infrastructure Protection. It is clear to see that improved coordination and information sharing among the intelligence community and law enforcement was a critical aspect of these reforms. But the biggest attempted organizational change in this regard was the creation of the Director of National Intelligence (DNI).28 There has been much debate over the role of the DNI and how much authority this person does—and should—have over the intelligence community. A major focus of the DNI nonetheless concerns improved intelligence coordination in the counterterror realm.
Today, the United States’ intelligence community includes the Office of the
Director of National intelligence and 16 agencies.29 Moreover, these 16 different agencies fall under the jurisdiction of five separate federal departments.30 These agencies can be classified into four separate groups: national intelligence organizations, Department of
Defense intelligence, military service organizations, and civilian intelligence organizations (see Table 1).31 Each of these organizations participate in what is known as the intelligence cycle, which is “the theoretical sequence in which information is requested, acquired, transformed into finished intelligence, and disseminated to policy makers or implementers.”32 Each agency is unique in its role in this cycle and collects different types of intelligence with different collection methods ranging from the more technical signals intelligence (SIGINT), to the classic human intelligence (HUMINT).
27 Jeffrey T. Richelson, The US Intelligence Community (Boulder: Westview Press, 2016), 128. 28 Ibid, 44. 29 The Intelligence Community, “Office of the Director of National Intelligence”, accessed March 2, 2016, http://www.dni.gov/index.php/intelligence-community/members-of-the-ic. 30 Ibid. 31 Richelson, The US Intelligence Community, 13. 32 Ibid, 3. 11
Table 1
National DoD Military Service Civilian Intelligence Intelligence Intelligence Organizations Organizations Organizations Central Intelligence Defense U.S. Army Bureau of Intelligence and Agency (CIA) Intelligence Intelligence Research (INR) Agency (DIA) National Security Office of Naval Federal Bureau of Agency (NSA) Intelligence (ONI) Investigation (FBI)* National U.S. Air Force Drug Enforcement Reconnaissance Intelligence Agency (DEA)* Organization (NRO)
National Geospatial- U.S. Marine Corps Department of Energy Intelligence Agency Intelligence (DoE) (NGA)
U.S. Coast Guard Department of Treasury (DoT) Department of Homeland Security (DHS) *Domestic law enforcement agencies under the Department of Justice. From Richelson, The U.S. Intelligence Community, 13. The National Security Agency
The history of the NSA predates its inception. Cryptology, or the art and science of studying, writing, and solving codes, has been practiced in the service of the United
States since the Revolutionary War.33 The Continental Congress established secret codes, and when George Washington established a spy network known as the “Culper
Ring” to collect secret intelligence reports on British activity in New York and Long
Island, the reports were in code and written in disappearing ink.34 Interception and decryption of flag signals was practiced during the Civil War, but up until the invention
33 Oxford English Dictionary, s.v. “cryptology,” accessed March 2, 2016, http://www.oxforddictionaries.com/us/definition/american_english/cryptology; “Cryptologic Almanac,” National Security Agency, last modified January 15, 2009, accessed March 3, 2016, https://www.nsa.gov/about/cryptologic_heritage/center_crypt_history/almanac/index.shtml. 34 Alexander Rose, “Genesis of the Culper Ring,” in Washington’s Spies (New York: Bantam Books, 2006), 67-99. 12
of the telegraph wire, radio, and the telephone in the late 19th and early 20th centuries, signals intelligence and cryptology changed very little.35 From WWI to WWII communication intelligence (a precursor to signals intelligence), code breaking, and encryption fell to the responsibility of a variety of different organizations including MI-8 during WWI and its successor the secretive Black Chamber, and later the Signals
Intelligence Service, and the Armed Forces Security Agency.36 Some of these agencies played crucial roles in World War II and the early Cold War, as the U.S. government realized the inherent value in full-time agencies dedicated to communication and signals intelligence.37 On October 24, 1952, President Truman signed a seven page, top-secret memorandum that ordered the establishment of the National Security Agency to better coordinate the growing number of SIGINT agencies.38
Headquartered in Ft. Meade, Maryland, NSA is the world’s premier SIGINT organization.39 NSA supplies the U.S. government with nearly 80 percent of all its intelligence, and according to one expert, given its ability to collect enormous amounts of data, it is constantly updating the ways it can collect, store, access, and organize information.40 The organization is made up of five separate directorates, but the two most important are the Directorate of Signals Intelligence and the Directorate of Information
35 Rodney P. Carlisle, "Signals Intelligence," in Encyclopedia of Intelligence & Counterintelligence, 2005. London: Routledge. http://ezproxy1.library.arizona.edu/login?url=http://literati.credoreference.com/content/entry/sharpint/signa ls_intelligence/0 36 James Bamford, “Prelude,” in The Puzzle Palace, (New York: Penguin Books, 1983), 20-81. 37 Ibid. 38 Ibid. 39 Richelson, The U.S. Intelligence Community, 34. 40 James Bamford, The Shadow Factory, 13, 2-3. 13
Awareness.* The Directorate of Signals Intelligence collects, analyzes, and disseminates all SIGINT collected by the organization.41 The information collected could be disseminated to policy makers or to other intelligence agencies such as the FBI or CIA.
The main mission of Directorate of Information Awareness (IAD) is information security.
The IAD’s role is essential to providing the proper tools required to keep communications secure. Furthermore, the NSA has five key responsibilities in regards to
SIGINT collection. Spelled out by a 2010 DOD directive, the NSA will:
“Collect (including through clandestine means), process, analyze, produce, and
disseminate SIGINT information and data for foreign intelligence and
counterintelligence purposes to support national and departmental missions…
Provide SIGINT support for the conduct of military operations, pursuant to
tasking, priorities, and standards of timeliness assigned by the Secretary of
Defense.
Establish and operate an effective, unified organization for SIGINT activities,
including executing any SIGINT-related functions the Secretary of Defense
directs.
Develop rules, regulations, and standards governing the classification and de-
classification of SIGINT…
* Since the writing of this paper, the NSA has made changes regarding its organizational structure. The Directorate of Signals Intelligence and the Directorate of Information Awareness are now being combined into one directorate, the Directorate of Operations. 41 Richelson, The U.S. Intelligence Community, 34. 14
Exercise SIGINT operational control and establish policies and procedures for
departments and agencies to follow when appropriately performing SIGINT
activities.”42
The first key piece to these responsibilities is highlighted in the first bullet: the NSA is to support national and departmental missions. As Director Comey of the FBI recently stated, counterterrorism “is a national team effort.”43 This distinguishes the NSA from other agencies. While agencies such as the FBI and CIA have SIGINT capabilities, they are nowhere near as sophisticated as the NSA’s. Therefore, the NSA generally plays an assisting role in counterterrorism or counterintelligence investigations, or will pass on new information to the proper agency so they can take the lead, though it does pursue its own investigations. For example, the FBI is the nation’s lead domestic criminal, counterterrorism, and counterintelligence organization. That means that if there is a terrorist suspected operating somewhere in the U.S., the FBI will be the lead investigator in that search. Conversely, the CIA’s main focus is foreign intelligence. Therefore, if the
NSA receives information vital to an ongoing CIA operation, the NSA will relay that information to the CIA. This highlights the NSA’s role as providing support, not only to policymakers, but to the intelligence community and law enforcement as well. But the
NSA was not always the technical behemoth that is today, and teamwork among intelligence agencies was not always commonplace.
During the 1990’s, following the end of the Cold War, the agency downsized dramatically. In 1990, the NSA had approximately 20,000 civilians, but by the year 2000
42 Ibid, 33. 43 James Comey, interview by Wolf Blitzer, Hurst Lecture Series: The Complexity of Today’s Global Threat Environment, The Aspen Institute, July 22, 2015. 15
it only had 15,000.44 The ramifications of the Church and Pike Committees’ investigations in the 1970’s regarding spying on U.S. citizens still had lingering effects on the NSA, and the organization remained cautious about domestic operations.45 Even in
1999 and 2000 the NSA remained extremely cautious regarding domestic surveillance, not wanting to repeat the investigations of the 1970’s.46 Yet even though the agency was being downsized, it still outpaced the rest of the intelligence community in terms of
SIGINT collection ability and technology.47 During the 1990’s, leading up to 9/11, some of the intelligence agencies were pitched in deep turf wars. Responsibilities were shirked off, and jurisdictions were used as a double-edged sword.48 For example, the CIA did not want the FBI meddling in their operations, and vice-versa. This highlights one of the problems that the intelligence community, including NSA, had leading up to 9/11. Due to fears of the NSA’s public image as the eavesdropping “big brother,” the agency stayed as far away from domestic communications as possible, even if it was a terrorist in the
United States communicating with a foreign contact or handler. These issues contributed to the 9/11 hijackers avoiding detection and carrying out their sinister plot.49 But on a
Tuesday morning in September, everyone’s world changed.
Legal and Operational Basics of the NSA Data Collection Program
The NSA’s data collection program is a complex system of programs used for a variety of purposes. These programs are supposed to be used in concert with the existing laws and policies of the US government. Like any government agency, the NSA has a
44 Bamford, The Shadow Factory, 106. 45 Ibid, 31. 46 Ibid. 47 Ibid, 32. 48 Ibid, 19-20. 49 Ibid, “Book One: Attack.” 16
task and purpose, which is spelled out in specific statutes and laws, including the Fourth
Amendment, FISA, the PATRIOT ACT, Executive Order 12333, and United States
Signals Intelligence Directive 18 (USSID 18).50 It is important to note that these statutes and laws apply to every member of the intelligence community, not just the NSA. This section will highlight the inception of the NSA’s data collection program following 9/11 and why the Bush administration felt that there was a need for such a program. It will also explain how certain pieces of legislation and policies apply to NSA’s task and purpose. Finally, types and methods of collection utilized by NSA will be discussed in context of the laws and policies of the U.S. Government.
In the Aftermath of 9/11
Domestic surveillance by the NSA, or other agencies for that matter, is not something that came about due to 9/11. During the Cold War and the Civil Rights movement, Americans were surveilled on suspicions of communist ties or suspected of domestic subversion or terrorism. But following the terrorist attacks of 9/11, President
Bush authorized the NSA to conduct a classified program in order to detect and prevent future terror plots.51 This program would be named the “President’s Surveillance
Program” (PSP). This program, which included other, more classified intelligence activities, was publicly acknowledged in 2005 as the “Terrorist Surveillance Program.”52
The New York Times reported that the “program grew out of concerns after the Sept. 11 attacks that the nation's intelligence agencies were not poised to deal effectively with the new threat of Al Qaeda and that they were handcuffed by legal and bureaucratic
50 Ibid. 37. 51 PSP IG report, 1. 52 Ibid, 17
restrictions better suited to peacetime than war.”53 The PSP came under extreme scrutiny from the public and Congress in 2005 when the program came to light. In actuality, the
NSA did conduct warrantless surveillance of Americans under the authorization of the
PSP.54
During the time the PSP was first being authorized, John Poindexter, the highest ranking Reagan Administration official found guilty during the Iran-Contra affair, established the Information Awareness Office (IAO) equipped with a computer surveillance system known as Total Information Awareness (TIA).55 The TIA and the
IAO fell under the authority of the DOD’s Defense Advanced Research Projects Agency
(DARPA). According to NSA expert James Bamford, this computer system was quite possibly the most massive data surveillance system ever built, but the IAO’s life was short.56 After a scathing report from the New York Times in the fall of 2002 revealed the program and office to the public, Congress quickly shut the office down, cutting off its appropriations. But rather than slipping into oblivion, the data-mining program ended up at the NSA.57
The Fourth Amendment
The Fourth Amendment applies to the NSA today in that the agency, a foreign intelligence collection organization, must obtain a warrant before surveilling a U.S. citizen. The Bill of Rights was created for the sole purpose of adding certain safeguards to the newly formed Republic under the Constitution. Personal freedoms and rights, along
53 James Risen and Eric Lichtblau, “Bush Let’s U.S. Spy on Callers without Courts,” The New York Times, December 16, 2005, http://www.nytimes.com/2005/12/16/politics/bush-lets-us-spy-on-callers-without- courts.html?_r=0. 54 PSP IG report, 6. 55 Bamford, The Shadow Factory, 100-102. 56 Ibid. 57 Ibid, 104. 18
with checks on the government’s power, were guaranteed under the first ten
Constitutional Amendments. The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”58 This amendment guarantees the privacy, established through court cases in the twentieth century, of the citizens against unlawful government intrusion. It also states that the government, whether local or federal, must obtain a warrant in order to search a specific place. Generally speaking, if a U.S. citizen is being investigated for breaking the law, law enforcement agencies must show probable cause and get a signed warrant from a sitting judge before they can search person, property, and conduct electronic surveillance.
The Foreign Intelligence Surveillance Act
Established in 1978, FISA was an attempt to place greater safeguards for citizens’
First and Fourth Amendments rights against warrantless electronic surveillance, while simultaneously being less strict in regards to electronic surveillance targeted against foreign actors. Additionally, Congress created legislative oversight powers regarding the intelligence community, making the community accountable to the House Permanent
Select Committee and Senate Select Community on Intelligence. The legislation also created the FISA court (FISC), which would deal exclusively with hearing applications for permission to conduct electronic surveillance against foreign powers and their
58 US constitution, IV Amendment. 19
agents.59 From 1978 to 2001, FISA and the FISC received little criticism and attention.
During that time the FISC approved 13,102 applications, modifying only two.60 During the Bush Administration from 2001 to 2004, 179 out of the 5,645 applications approved were modified, while at least six were rejected or deferred.61 While those numbers are a small percentage of the total applications approved, it does suggest a heightened awareness by the court regarding public sensitivities concerning electronic surveillance.
FISA has been amended multiple times since its inception in 1978. The most recent changes have occurred as a result of 9/11, and include the USA PATRIOT Act, the
Terrorist Surveillance Act, the Protect America Act, and the FISA Amendments Act.
Most of the amendments were geared towards the easing of the restrictions required in order to conduct electronic surveillance against one or more parties in which the communication is located overseas. But Congress made sure that the amendments came with a price tag of additional Congressional oversight.
Presently, the FISA legislation contains many provisions stating what the U.S. government can and cannot do in regards to electronic surveillance and collection. One of the most controversial is section 702, which dictates under what conditions the NSA can target non-U.S. persons outside the U.S. for electronic surveillance. While many see section 702 as a means of circumventing the FISC, the provision contains specific language regarding statutory requirements, internal review, judicial and Congressional oversight, and restrictions that must be met in order for a person to be the target of
59 Frederic F. Manget, “Intelligence and the Rise of Judicial Accountability,” in Intelligence: the Secret World of Spies, 389. 60 Bamford, The Shadow Factory, 113. 61 Ibid. 20
electronic surveillance.62 For example, under 50 USC § 1881a(b)(2) the U.S.
Government, “may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States”63 This strategy is known as
“reverse targeting,” and under section 702 it is prohibited, whether or not the FISC is consulted.64
Section 702 is but one provision regarding electronic surveillance under FISA.
Section 102 of FISA authorizes, according to 50 USC § 1802a(4)(A), that the government can basically order communication companies, such as Verizon and AT&T, to “furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers.”65
As with section 702, there are limitations, procedures, and oversight regarding section
102. Sections 702 and 102 are but two examples of the provisions that make up FISA and are not indicative of how complex the law truly is.
Executive Order 12333
Executive Order 12333 was signed by President Reagan on December 4, 1981, partly to give intelligence agencies greater latitude in collecting foreign intelligence within the United States.66 Since its signing, EO 12333 has been amended three separate
62 James Ball and Spencer Ackerman, “NSA Loophole Allows Warrantless Search for U.S. Citizens’ Emails and Phone Calls,” The Guardian, August 9, 2013, http://www.theguardian.com/world/2013/aug/09/nsa-loophole-warrantless-searches-email-calls. 63 Foreign Intelligence Surveillance Act of 1978, 50 USC § 1881a(b)(2) (2015). 64 NSA Director of Civil Liberties and Privacy Office, Report on NSA’s Implementation of Foreign Intelligence Surveillance Act Section 702, April 16, 2014, 3. 65 Foreign Intelligence Surveillance Act of 1978, 50 USC § 1802(a)(4)(A). 66 Phyllis Provost McNeil, “The Evolution of the U.S. Intelligence Community- An Historical Overview,” in Intelligence: The Secret World of Spies, 36. 21
times: in 2003, 2004, and 2008. The order is comprised of three parts: 1) goals, direction, duties, and responsibilities with respect to the national intelligence effort, 2) conduct of intelligence activities, and 3) general provisions.67 As with intelligence related statutes,
EO 12333 applies to all members of the intelligence community, not just NSA. In section
1.12(b), NSA’s main responsibilities under the direction of the Secretary of Defense are enumerated. The section identifies 13 responsibilities that apply strictly to NSA, in that it is the intelligence community’s leader when it comes to SIGINT.
While EO 12333 identifies the responsibilities of each member of the intelligence community, it also specifies under which circumstances United States persons may become the target of intelligence collection. In part 2.3, 10 separate authorizations to collect, retain, and disseminate information against U.S. persons are enumerated. They range from, “information that is publicly available or collected with the consent of the person concerned” to “incidentally obtained information that may indicate involvement in activities that may violate federal, state, local or foreign laws.”68 This part gives NSA considerable discretions regarding the targeting of U.S. persons in a foreign intelligence organization.
EO 12333 does not give intelligence agencies free reign to snoop and collect wherever and whatever they please. Part 1.1(b) states: “All means, consistent with applicable United States law and this Order, and with full consideration of the rights of
United States persons, shall be used to develop intelligence information for the President and the National Security Council.”69 It also states that collection activities can be
67 Exec. Order 12333, (December 4, 1981). 68 Exec. Order 12333, 3 C.F.R. 2.3(a), (i), (December 4, 1981). 69 Ibid. 22
conducted, “only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General.”70 These are clear indicators that while
EO 12333 gives NSA certain responsibilities and latitudes regarding SIGINT, it does not undermine U.S. law. John Napier Tye, a former section chief for Internet freedom in the
State Department, feels that EO 12333 goes too far in its authority. According to Mr.
Tye, “12333 is not a statute and has never been subject to meaningful oversight from
Congress or any court.”71 Mr. Tye contends that while the NSA cannot specifically target
U.S. persons under EO 12333, the agency can collect information that is “incidentally” collected.72 While “incidental” collection certainly occurs, NSA, as per FISA, has requirements regarding the minimization of collection of such information of un- consenting U.S. persons.73
The USA PATRIOT Act
The USA PATRIOT Act, signed in to law shortly after 9/11, is one of the most controversial pieces of legislation enacted in response to the terrorist attacks. The law’s main purpose can be discerned from its full title, “Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.” The law, as originally signed by the President, contained 10 sections. These sections covered topics such as enhancing domestic security against terrorism, enhanced surveillance procedures, and anti-terrorist financing.74 While certain portions of the law were new, some
70 Ibid. 71 John Napier Tye, “Meet Executive Order 12333: The Reagan Rule that lets the NSA Spy on Americans,” The Washingto Post, July 18, 2014, https://www.washingtonpost.com/opinions/meet-executive-order- 12333-the-reagan-rule-that-lets-the-nsa-spy-on-americans/2014/07/18/93d2ac22-0b93-11e4-b8e5- d0de80767fc2_story.html. 72 Ibid. 73 Foreign Intelligence Surveillance Act of 1978, Section 102. 74 Ball, The USA PATRIOT Act, 51. 23
provisions were amendments of existing laws, including FISA. The Patriot Act was reauthorized in 2005, and key provisions were amended in the 2015 USA Freedom Act.
Many of the provisions contained in the act are non-controversial. Enhancing the intelligence community’s ability to share information between IC agencies and local law enforcement and revised immigration procedures are a few of the provisions of the
Patriot Act that do not involve surveillance.
There are three important provisions regarding surveillance in the act: amendments to FISA, delayed-notice search warrants, and the use of National Security
Letters.75 Generally, National Security Letters are used by the FBI with the purpose of compelling the recipient to provide information, which could include forms of electronic information.76 The most controversial and dissected section of the Patriot Act related to the NSA was section 215. An amendment to FISA, it authorized the U.S. Government to access business and library records, among others.77 In the reauthorization of 2005, this section was amended to authorize the government access to “tangible things,” like meta- data.78 The section allowed the U.S. Government to collect telephone meta-data, which includes the phone numbers of the caller and recipient, the time and duration of the call, and the location, but not the content.79 After the Edward Snowden leaks in 2013,
Congress began addressing this issue. On May 31, 2015 Section 215 expired, and days later Congress passed the USA Freedom Act. Under the new law, federal agencies are no
75 Donahue, Counterterrorism, 233. 76 National Security Letter Law & Legal Definition, uslegal.com, date accessed February, 15, 2016, http://definitions.uslegal.com/n/national-security-letter/. 77 Ball, The USA Patriot Act, 155. 78 Emma Roller, “This is what Section 215 of the Patriot Act Does,” Slate.com, June 7, 2013. http://www.slate.com/blogs/weigel/2013/06/07/nsa_prism_scandal_what_patriot_act_section_215_does.ht ml. 79 James Ball, “Verizon Court Order: Telephone Call Metadata and what it can show,” The Guardian, June 6, 2013, http://www.theguardian.com/world/2013/jun/06/phone-call-metadata-information-authorities. 24
longer allowed to store meta-data, but have to request it from a third-party via court order.80
The Patriot Act is also designed to remove the legal “wall” that was a hindrance to the intelligence community’s ability to share information with law enforcement prior to 9/11. The removal of the wall came in the form of section 218 of the Patriot Act, which amended language in sections 104 and 303 of FISA concerning requirements for a FISA application. Now, the Attorney General could approve a FISA application where foreign intelligence was a significant reason for the application, instead of the sole reason.81 In another provision removing the wall, section 504 of the Patriot Act permits intelligence officials who conduct electronic surveillance to consult with federal law enforcement agents regarding coordination so as to investigate or prevent an attack by a foreign power or terrorists, counterintelligence, and espionage.82 This illustrates the realization among
Congress that the intelligence community needed to become much more flexible if it was going to effectively combat international terrorism.
United States Signals Intelligence Directive 18
The United States Signals Intelligence Directive 18 (USSID 18) is not a law or executive order. Instead, it is more of a user’s guide for the signal intelligence collector.
The Directive states how the laws and executive orders are to be followed in the pursuit of SIGINT in a much more clear and concise way than the complex laws themselves.
Former Director of the NSA Michael Hayden described USSID 18 as, “a specific
80 Alex Byers, “USA Freedom Act vs. USA Patriot Act,” Politico, May 31, 2015, http://www.politico.com/story/2015/05/usa-freedom-act-vs-usa-patriot-act-118469. 81 Donahue, Counterterrorism, 233. 82 Larry D. Thompson, Intelligence Collection and Information Sharing within the United States, Testimony, December 8, 2003, http://www.brookings.edu/research/testimony/2003/12/08terrorism- thompson. 25
cookbook that can be understood by every eighteen or nineteen-year-old airmen, soldier, sailor, or marine who comes to work for the NSA.”83 The Directive also gives guidance for the minimization policy and requirements that are meant to maintain the privacy of
U.S. persons.
Types & Methods of NSA Collection
SIGINT is an overarching term that encompasses many different specific types of collection, including electronic surveillance. Electronic surveillance is defined in EO
12333 as “acquiring nonpublic communications by electronic means without the consent of a person who is a party to an electronic surveillance.”84 While all electronic surveillance can be classified as SIGINT, not all SIGINT is electronic surveillance.
SIGINT is comprised of three components: communications intelligence (COMINT), electronic intelligence (ELINT), and foreign instrumentation signals intelligence
(FISINT).85 Electronic surveillance can fall under any of these categories. From the monitoring of phone calls (COMINT) to the monitoring of the internet (ELINT), NSA, as the intelligence community’s SIGINT leader, has more than enough capabilities to carry out electronic surveillance.86
The NSA, as one expert writes, is the “most technologically sophisticated spy organization the world has ever known.”87 Holding that title requires some advanced hardware and capabilities. The NSA’s data collection program, as is being referred to in this paper, is not just one computer program. Rather, it is a myriad of computer programs,
83 Bamford, Shadow Factory, 37. 84 Bruce W. Watson, Susan M. Watson, and Gerald W. Hopple, eds., United States Intelligence: an Encyclopedia, s.v. “electronic surveillance,” (New York: Garland Publishing, Inc., 1990) 85 Richelson, Intelligence Community, 223. 86 Bamford, Shadow Factory, 1. 87 Ibid. 26
listening posts, satellites, ships, and submarines that collect, retain, and organize information. All of these capabilities are utilized by SIGINT collectors so that intelligence community analysts can create finished intelligence products for officials and investigators. The NSA has at least 26 computer programs, known to the public, that mine data and analyze social networks and traffic. 88 While the public has knowledge of some of the programs, the NSA most certainly has more, highly classified programs unknown to the public.
Because terrorist organizations are utilizing the internet more to recruit and spread their ideologies across the globe, the NSA has specific programs geared towards monitoring e-mails, phone calls, and internet chats of suspected terrorist groups.89 The
RAMPART program, which utilizes the tapping of communication cables across the globe, collects information from cable companies, third parties, and participating foreign governments.90 Another specific data collection program is known as MUSCULAR. This program gathers data from Yahoo! and Google’s clouds and puts it into a “buffer.”91
From this buffer, the NSA has tools that it can use to filter the data to select the specific information the collector wants while excluding the rest.92 Made public due to the
Snowden leaks, the PRISM program obtains information from at least nine other telecommunication and internet providers.93 A 2013 NSA memo stated that collection derived from the PRISM program constituted 18 percent of all SIGINT reports cited as
88 Ibid, 149. 89 Julian Hattem, “Analysis: U.S. Support for ISIS ‘Unprecedented’,” The Hill, December 01, 2015, http://thehill.com/policy/national-security/261597-unprecedented-support-for-isis-in-us-analysis-claims: Richelson, U.S. Intelligence Community, 250. 90 Richelson, U.S. Intelligence Community, 250. 91 Ibid, 251. 92 Ibid. 93 Ibid. 27
sources in the President’s Daily Brief (PDB), the intelligence community’s single most important intelligence product.94
Methodology and Data
Policy effectiveness, succinctly put, is whether or not the policy in question has reached its stated goals and objectives.95 This paper will measure effectiveness of NSA’s data collection program by trying to identify the number of prevented terror plots in which the NSA was involved, likely involved, or possibly involved, in assisting the U.S. counterterrorism efforts:
In some cases the government has admitted, or there are public documents that
admit to, NSA’s involvement in specific counterterror cases.
From publicly available information, one can infer that the NSA likely played a
part in the investigation.
Yet other cases, one can depict a scenario in which it is possible that the NSA
played a role, but there is not enough information to say that it is likely that the
NSA was involved.
Examples of cases will be highlighted in a subsequent section.
A complicating fact is that similar to there being no concrete definition for terrorism, there is no concrete definition for prevented terrorism. But what constitutes a foiled terror plot? Is it the apprehension of an individual or group of individuals who were supplying material support to a terrorist organization? Is it an undercover FBI agent supplying fake explosives to a suspect the FBI has been surveilling? This ambiguity makes it extremely difficult to measure how many terrorist attacks have been prevented,
94 Ibid. 95 Kraft and Furlong, Public Policy, 151. 28
especially when the focus is on a single agency’s efforts. With this lack of clear definition in mind, this paper will utilize the information from two separate data-sets.
The Data
Two public policy think tanks, the Heritage Foundation and New America, have each created their own data-sets that track prevented and not-prevented Islamist inspired or related terror attacks in America since 9/11. These are the two best publicly available data-sets that track prevented terror plots in America. Both data-sets rely on publicly available information such as news reports, court documents, press releases, wire service reports and congressional testimony in order to compile their data.
The Heritage Foundation is a prominent conservative research and educational think tank in the United States.96 The organization researches all facets of public policy, including homeland security. The organization has compiled an interactive timeline of terrorism cases on its website and provides a brief overview for each case. Among these plots are cases in which NSA involvement has been confirmed. The Foundation’s methodology is not very clear, though. Its data-set tracks only Islamist terror plots and attacks against the U.S. homeland since 9/11 to the present day.97 It does not give any other information as to what a terror plot consists of. While the methodology does not include any other specifics, it is still a useful resource because of the amount of information they provide. Furthermore, comparing Heritage Foundation’s information against that of New America can offer insight into cases, confirm information, or highlight cases that New America missed.
96 “About Heritage Foundation,” Heritage Foundation, Date accessed March 25, 2016, http://www.heritage.org/about. 97 David Inserra, “An Interactive Timeline of Islamist Terror Plots Since 9/11,” Heritage Foundation, September 10, 2015, http://dailysignal.com/2015/09/10/a-timeline-of-73-islamist-terror-plots-since-911/. 29
New America’s International Security Program data-set is much more comprehensive and better researched than Heritage Foundation’s data-set. The New
America Foundation was founded in 1999 and considers itself an intellectual venture capital fund, think tank, technology laboratory, public forum, and media platform.98 Its data-set underwent a full review in 2013. Its methodology states:
“The dataset seeks to include all American citizens and residents indicted or convicted for terrorism crimes who were inspired by or associated with Al Qaeda and its affiliated groups as well as those citizens and residents who were killed before they could be indicted but have been widely reported to have worked with or been inspired by al-Qaeda and its affiliated groups. The dataset does not include extremists tied to violent Islamist groups that do not target the United States as part of al-Qaeda’s war, for example Hamas and Hezbollah, nor does it include individuals who were acquitted or charged with lesser crimes, for example immigration violations, that cannot be shown to involve some kind of terrorism-related crime… The dataset relies mainly upon court documents, wire service reports, and news reports as sources.”99
Even though Heritage Foundation’s methodology is not clearly articulated, New
America’s is, as they focus on all persons indicted or convicted for terror crimes in the
United States. The data-set also includes right wing, left wing, and non-Jihadist inspired terror plots. However, this data has been excluded to simplify the focus of this paper.
Another differentiation between New America and Heritage Foundation’s data-sets are that New America categorizes their data by the impetus of the investigation. These categories include: community or family tip, the use of an informant, intelligence operations, self-disclosure by the individual, suspicious activity reported, routine law enforcement, NSA surveillance under section 702, NSA surveillance under section 215,
98 “About,” New America Foundation, date accessed March 25, 2016, https://www.newamerica.org/about/. 99 “Methodology,” New America Foundation, date accessed September 15, 2015, http://securitydata.newamerica.net/extremists/methodology.html. 30
NSA surveillance under unknown authority, and cases where the impetus to the investigation is unclear.100 New America’s data-set timeframe is from 9/11, but not including those attacks, to 2015. New America does not compile their data based on each individual charged with terrorism, but rather by each incident. For example, if a group of people are all being charged for the same crime, that group would be considered one entry.
Even though the data-sets have different methodologies, there are many commonalities between the two that make it feasible to compile the two into one data-set.
With that, there are instances in which one entry is included on one data-set, but not on the other, even though it clearly should be. For example, take the case of the Naveed Haq.
On July 28, 2006 Haq walked into the Seattle Jewish Federation in Washington State and shot six people, killing one.101 During the trial it was disclosed that Haq committed the act because he disagreed with U.S. foreign policy in the Middle East.102 This incident is not included in the Heritage Foundation’s timeline. Likewise, the 2002 LAX shooting in which two people were killed and four wounded is not included on Heritage Foundation’s timeline, whereas it is included in New America’s data-set. These are but two examples of the discrepancies regarding the data-sets, and it highlights the vagueness in the classification of terror plots and attacks. But Heritage Foundation also includes data not included in New America’s data-set. In September of 2011, Manssor Arbabsiar was arrested for plotting to assassinate the Saudi Arabian Ambassador in Washington D.C.103
100 “Terror Plots,” New America Foundation, date accessed September 15, 2015, http://securitydata.newamerica.net/extremists/terror-plots.html. 101 Jennifer Sullivan, “Seattle Jewish Center Shooter Gets Life Sentence,” Los Angeles Times, January 15, 2010, http://articles.latimes.com/2010/jan/15/nation/la-na-seattle-jewish-center15-2010jan15. 102 Ibid. 103 Inserra, “Interactive Timeline,” Heritage Foundation. 31
This case clearly meets the requirements for New America’s data-set. Arbabsiar is an
Iranian-born U.S. citizen, but this case was only included in the Heritage Foundation data-set. The Heritage Foundation’s timeline is also more up to date than New America’s data-set, with entries from 2016.
Additionally, both data-sets include entries that are neither a specific plot nor a person who has been arrested under terrorism charges. The Heritage Foundation has an entry titled KSM plots, alluding to Khalid Sheikh Mohammed, who was one of Osama
Bin Laden’s senior operatives.104 But the entry does not allude to any specific plot. Also,
KSM was arrested in in Pakistan in 2002 and the entry is dated in March of 2007.105 New
America has a similar entry. Their 2011 Anwar Awlaki entry does not identify a specific plot, but rather alludes to plots Awlaki may have been associated with.106 Awlaki was also never arrested under terrorism charges but was killed in a drone strike in Yemen.107
Having conflicting data from two prominent public policy think tanks makes it even more difficult in making that connection between the independent and dependent variables.
Due to these discrepancies, the data-sets have been collated in order to make a more comprehensive list of terror plots and attacks since 9/11, but not including the 9/11 attack itself. This makes it easier to examine both data-sets simultaneously in looking for cases where the NSA played a role in the investigation.
104 Ibid. 105 Ibid. 106 New America Foundation, “2011 Anwar Awlaki,” New America Foundation, accessed April 3, 2016, http://securitydata.newamerica.net/extremists/terror-plot.html?id=1628. 107 Ibid. 32
Basic Methodological Approach
In studying the NSA data collection program it is extremely difficult from a public information standpoint to know which cases the NSA played a role in except by admission from the government or other sources. But that does not mean that it is impossible to infer which cases the NSA could have likely or possibly played a role. As terror groups have expanded their use of the internet, and because of NSA’s lead electronic surveillance role in the intelligence community, it is a near certainty that the
NSA has responded by electronically surveilling this activity.108 Therefore, we can reasonably infer that in any case in the collated data where the suspect(s) utilized any form of electronic communication to communicate with a terrorist, suspected terrorist, or terror group overseas, the NSA played a part in monitoring those communications.
Determining whether or not the information gathered always played a significant role in the investigation is not the aim of this paper. Rather, the focus is whether the NSA, as the intelligence community’s SIGINT lead, assisted in the investigation. When a report comes out that states a person has been arrested in the United States under terrorism charges, the FBI is, more often than not, the arresting agency. The NSA does not have employees on the front line, kicking in doors and making arrests. In all cases they assist other agencies in the government’s counterterrorism efforts. It can also be the case that the NSA played no role in an investigation where the individual was utilizing electronic communications. However, some cases can reasonably be more heavily characterized as having NSA’s involvement than others.
108 Eben Kaplan, “Terrorists and the Internet,’ Council on Foreign Relations, January 8, 2009, http://www.cfr.org/terrorism-and-technology/terrorists-internet/p10005. 33
As the amount of information as to what degree of involvement the NSA played is hard to ascertain, this paper has considered three categories of NSA involvement. As the confidence level decreases, NSA’s involvement becomes less certain. Following are examples from the data-set that fall into each of the three separate NSA involvement categories. These examples are but a sample of specific plots from each category.
Confirmed NSA Involvement
NSA involvement has been confirmed through several types of sources in the data-set. For example, the United States Government in 2013 stated that NSA surveillance programs disrupted 42 terror plots and separately identified 12 individuals who were providing material support to terrorist organizations.109 Of those 54 cases, only
13 had a homeland nexus.110 The government has confirmed four separate cases in which the NSA was involved: a 2009 New York subway bomb plot, a 2009 plot to bomb the
New York Stock Exchange, the arrest of American David Headley, who helped orchestrate the 2008 Mumbai terror attack, and a 2010 arrest of a San Diego cab driver who had been giving material support to the African group Al-Shabaab.111 These cases were revealed in response to the Edward Snowden leaks and the growing concern regarding the NSA’s data collection program.112 But these are not the only cases in which
109 Peter Finn, “NSA Chief Says Surveillance Programs Helped Thwart Dozens of Plots,” The Washington Post, June 27, 2013, https://www.washingtonpost.com/world/national-security/nsa-chief-says-surveillance- programs-helped-thwart-dozens-of-plots/2013/06/27/e97ab0a2-df70-11e2-963a- 72d740e88c12_story.html?tid=a_inl. 110 Ibid. 111 John R. Parkinson, “NSA: ‘Over 50’ Terror Plots Foiled by Data Dragnets,” ABC News, June 18, 2013, http://abcnews.go.com/Politics/nsa-director-50-potential-terrorist-attacks-thwarted- controversial/story?id=19428148; Ellen Nakashima, “NSA Cites Case as Success of Phone Data-collection Program,” The Washington Post, August 8, 2013, https://www.washingtonpost.com/world/national- security/nsa-cites-case-as-success-of-phone-data-collection-program/2013/08/08/fc915e5a-feda-11e2-96a8- d3b921c0924a_story.html. 112 Ibid. 34
it has been confirmed that NSA played a role in the investigation. There are instances in which court documents have been made public that state that evidence gathered through electronic surveillance pursuant to FISA would be used in the trial. One such case is that of Agron Hasbajrami, who was arrested in 2011 under terrorism charges.113 The court document clearly states that the government intended to use “information obtained or derived from electronic surveillance” under the provisions of FISA against
Hasbajrami.114
Likely Involvement
There have been incidents in which it can be reasonably inferred that NSA surveillance likely occurred during the investigation of the suspect or suspects. In any case where there was an occurrence of an individual communicating electronically with a suspected or known terrorist, it is likely that the NSA was involved in the collection of
SIGINT. For example, in 2002 the FBI arrested Jose Padilla for conspiring to use a “dirty bomb” in a terror attack.115 Padilla had been in contact with known terrorist Adham
Hassoun, who was under investigation for his contact with Sheikh Omar Abdul-Rahman, one of the individuals involved in planning the 1993 World Trade Center attack.116
Around 230 conversations were recorded between Padilla and Hassoun.117 It can be
113 For reasons stated in the text, cases highlighted in the New America dataset that confirm NSA involvement have also been included as confirmed NSA involvement for this paper. Mosi Secret, “In Brooklyn, a Guilty Plea to Aiding Terror,” New York Times, April 12, 2012, http://www.nytimes.com/2012/04/13/nyregion/would-be-terrorist-pleads-guilty-in-brooklyn.html. 114 Agron Hasbajrami v. United States, Crim Docket No. 11-623, FISA Amendments Act Notice, February 24, 2014, https://s3.amazonaws.com/static.newamerica.org/securitydata/attachments/terrorplots/1616/FAA%20Notic e%20-%20Agron%20Hasbajrami.pdf. 115 New America Foundation, “2002 Padilla Plot,” New America Foundation, accessed April 3, 2016, http://securitydata.newamerica.net/extremists/terror-plot.html?id=1523. 116 Ibid. 117 Ibid. 35
reasonably concluded that the agency conducting the electronic surveillance was likely the NSA due to the role the NSA plays in the intelligence community. Although the FBI and other federal agencies conduct their own electronic surveillance, what makes this a prime example of a case where the NSA was likely involved is that the suspect was in contact with a non-US person.
Possible NSA Involvement
More common are cases where the NSA possibly played a role in the investigation. A scenario in which the NSA was involved in a case can be theorized, but due to significant gaps in information about the case, one cannot say that it is likely the
NSA was involved. Many of these cases involve individuals who were utilizing electronic means to support terror groups, spread their ideological views, or were discovered through their social media accounts. Former FBI and CIA counterterrorist official Philip Mudd states that “individuals under the spotlight of a domestic security investigation… and are of sufficient concern to become the subject of the range of surveillance—technical, human, and everything else in the book… are in a world of trouble.”118 This highlights the fact that if an individual becomes a terror suspect, the U.S.
Government will employ every method available in the ensuing investigation.
Furthermore, with the establishment of interagency task forces such as the
National Counterterrorism Center (NCTC) and the Joint Terrorism Task Force (JTTF), agencies can collaborate on multiple investigations. For instance, Muna Osman Jama and
Hinda Osman Dhirane were arrested in 2014 for directing a fundraising network that
118 Philip Mudd, Takedown: Inside the Hunt for Al Qaeda, (Philadelphia: University of Pennsylvania Press, 2013), 151. 36
provided material support to Al-Shabaab.119 The Justice Department asserts that the suspects organized and managed the network with women in the Netherlands, Kenya, and
Somalia.120 While the press release states that the case was investigated by the FBI, it is possible that the FBI utilized information collected by the NSA in their investigation.121
Another example is the case of Mohammed Khan, who was arrested in 2014 for attempting to travel to Syria to join the Islamic State of Iraq and the Levant (ISIL). A
Chicago Tribune news report states that Khan allegedly had a contact waiting for him to take him to an ISIL stronghold.122 If the person that Khan was communicating with was under government surveillance, it is reasonable to assume that it could possibly have been the NSA. This case involves electronic communication, a non-U.S. person, and a terror group, all of which make it possible that the NSA was involved.
Results
The collated Heritage Foundation and New America data-sets produce a total of
175 terror attacks and prevented terror attacks since 9/11. Out of that total, 64 of the cases are included in both data-sets, while 18 are only highlighted in the Heritage Foundation’s and 93 are only highlighted in New America’s (see Figure 1).
119 New America Foundation, “2014 Shabaab Funding Group,” New America Foundation, accessed April 3, 2016, http://securitydata.newamerica.net/extremists/terror-plot.html?id=1788. 120 “Three Defendants Arrested on Charges of Providing Material Support to a Foreign Terrorist Organization,” Department of Justice: Office of Public Affairs, July 23, 2014, https://www.justice.gov/opa/pr/three-defendants-arrested-charges-providing-material-support-foreign- terrorist-organization. 121 Ibid. 122 Jason Meisner and Geoff Ziezulewicz, “Feds: Bolingbrook Man Arrested at O'Hare on Terrorism Charges,” Chicago Tribune, October 6, 2014, http://www.chicagotribune.com/suburbs/bolingbrook- plainfield/chi-feds-bolingbrook-man-facing-terrorism-charges-20141006-story.html.
37
Figure 1
Total Terror Plots*
37%
53%
10%
New America Heritage Foundation Both
*Total terror plots= 175 According to the data, out of the 175 plots, there have been 21 Islamist inspired terrorist attacks that were not prevented. These cases are accounted for in the data, but it is hard to say what role the NSA had, if any, in attempting to prevent those plots. These plots that were not prevented account for 12% of the total cases. While some attacks were unsuccessful and resulted in no casualties--like the 2002 Shoe Bomber, the 2009
Underwear Bomber, and the 2010 Times Square bomb plot--they nonetheless were plots that were not prevented prior to the person attempting to execute their plans. On the other hand, there have been successful terror attacks carried out. The 2013 Boston Marathon
Bombings, the 2009 Ft. Hood attack, and the 2015 San Bernadino terror attack are but three examples. There are 102 instances in the data where a case falls into one of the three NSA involvement categories. Additionally, there are 52 cases that are classified in the “other” category. These are cases in which there is not enough information, or the
38
information is not strong enough to classify it into one of the three NSA involvement categories. Therefore, the collated data can be generalized into three different categories: attacks not prevented, prevented attacks in which the NSA was involved, and other (see figure 2).
Figure 2
Total Terror Plots*
12%
30%
58%
Plots Not Prevented NSA Involvement in Prevention Other
*Total Terror Plots=175 It is clear to see that cases which fall under one of the NSA involvement categories accounts for over half of the total cases. But what does that slice look like broken down? As shown in Figure 3, of the 102 prevented plots in the data that fall into one of the three categories of NSA involvement, nine have been confirmed, 25 are likely, and 68 are possible. Thus, 9% are confirmed, 25% are likely, and 66% are possible.
39
Figure 3
PREVENTED CASES WITH NSA INVOLVEMENT*
70 68
60
50
40
30 25 20
10 9
0 NSA confirmed NSA Likely NSA possible
*Total Cases=102 While the results highlight NSA’s actual or potential involvement in preventing terror attacks since 9/11, they are not solid enough to confirm a hypothesis that NSA’s data collection program has been truly effective. As the robustness of NSA’s data collection program has grown in authority and capability since 9/11, and with such a small sample size of confirmed NSA involvement in prevented cases, asserting that program has truly been effective would be an ambitious claim. However, the results do suggest some interesting insights into the potential activities of the NSA regarding counterterrorism policy.
The high number of likely and possible cases can lead to a number of logical inferences. For one, it suggests that the NSA is not merely collecting data just for the sake of collecting data. One could also infer that the NSA is much more involved in terrorism cases than the government lets on. Against the possibly 102 cases of NSA involvement identified in this paper, the 54 cases the government admitted to pales in 40
comparison. This is not surprising, as the government would not want to divulge too much information for fear of revealing operational capabilities. Despite the fact that one cannot state with absolute certainty that NSA’s data collection program has been truly effective in preventing terror attacks, a general assumption can be made that the NSA’s data collection program has helped in the government’s efforts in executing its counterterrorism policy.
The data also suggests some interesting trends regarding terror suspect’s methods, motives, and actions. The rise of ISIL has certainly increased the number of people who have been arrested under terrorism charges, though not necessarily for attempting to carry out a terror attack. ISIL declared itself as an Islamic Caliphate in June of 2014 and in two months publicly executed the American journalist James Foley, thrusting the group into the national spotlight.123 Thirty-one percent of the cases in the collated data have occurred since 2014, and a majority of these cases are not prevented attacks; rather, they are of the variety of providing material support or attempting to travel to ISIL held areas.
One of the contributing factors of this growth is ISIL’s internet presence on social media sites. FBI Director James Comey stated in July of 2015 that “they (referring to ISIL) have adopted a model that takes advantage of social media in a way to crowd-source terrorism.
They have invested, about the last year, in pushing a message of poison primarily through
Twitter but other parts of social media.”124 It is only a logical conclusion that the NSA is attempting to monitor as much of the group’s internet activities as possible.
123 Bill Roggio, “ISIS Announces Formation of Caliphate, Rebrands as ‘Islamic State’,” Long War Journal, June 29, 2014, http://www.longwarjournal.org/archives/2014/06/isis_announces_formation_of_ca.php; Chelsea J. Carter, “Video Shows ISIS Beheading U.S. Journalist James Foley,” CNN, August 20, 2014, http://www.cnn.com/2014/08/19/world/meast/isis-james-foley/index.html. 124 James Comey, Hurst Lecture Series. 41
It is also worthwhile to note that the intelligence community is not infallible. As
9/11 and subsequent attacks have shown that America is not invulnerable, the number of individuals and groups willing to carry out terror plots against the homeland has grown.
Additionally, the fault of a successful terror attack does not fall solely on the NSA and its
SIGINT mission, but rather the entire intelligence community. The NSA does not recruit human sources, execute raids, or manage undercover agents. These tasks fall to other members of the intelligence community. Protecting America and executing counterterrorism policy is a team effort.
Challenges and Issues for Future Research
Information Gaps and Definitional Challenges
The results of the analyzed data do not confirm the hypothesis, nor do they fully reject it. Rather, they illuminate the challenges in attempting to empirically research a government program operated by a clandestine agency. There are some major gaps in information that are difficult to overcome. One is the clandestine nature of the NSA, and the other is the metric in which counterterrorism assessments are usually based-- prevented terror plots. Both of these challenges make the studying of counterterrorism policy that is executed by a clandestine agency hard to conduct.
One of the hallmarks of a democracy is transparency. However, the nature of the intelligence community creates a paradox within this governmental system. First of all, secrecy is important for the intelligence community to be as effective as possible.
However, this same secrecy hinders the public evaluation of the intelligence community’s effectiveness. Attempting to uncover secrets, collect information, discover motives, and conduct surveillance of America’s enemies requires operational security. In addition, it is
42
imperative that other countries and non-state actors remain in the dark regarding our country’s military, intelligence, and technological capabilities. It is impossible for the government to reveal to its citizens all of the actions undertaken by the intelligence community without that information falling into the wrong hands. But the need for operational security, makes it extremely difficult for the academic researcher to conduct an empirical study regarding many intelligence activities.
This paradox makes it extremely difficult to establish a strong link between the independent and dependent variables. Due to the lack of information regarding NSA’s data collection program, it is just not possible, without inside information, to fully assess how effective the program has been. The federal government does conduct internal reviews regarding its programs and policies. There is Congressional oversight, inspector generals at federal agencies (including NSA), the Government Accountability Office, and the Congressional Research Service. That is not to say, however, that an external effort cannot assess in more general terms how effective the NSA has been in preventing terror attacks. There are at least 154 cases where terror plots or people supporting terror groups have been stopped. That is significantly more than the number of attacks not prevented.
That number would likely grow if one were to analyze international cases as well.
Another challenge for future research regarding terrorism cases, prevented or otherwise, is the lack of a clear, all-inclusive definition or set of criteria regarding what a foiled terror plot consists of. Even though there are clear cases in which an actual terror plot was prevented, a majority of the cases are much more difficult to assess. For example, does arresting a person who is providing material support to a terror group count? If that support could have led to an actual attack, then it should be included. Is
43
stopping someone from traveling abroad to join and fight with a terror group count? If that individual had joined a terror group, learned operational terror tactics, returned home and carried out an attack, then maybe the arrest did prevent a terror attack. The problem with that logic is that no one can predict the future, much to the chagrin of government officials. Additionally, intelligence and law enforcement agencies are not only reactive, but also proactive in executing counterterrorism policy. Thus, disrupting terror groups, cells, and networks is inherently preventing terror attacks.
Methodological and Data Issues
There are multiple issues in assessing and measuring the NSA data collection program’s effectiveness through publicly available information. One problem is that measuring effectiveness by assessing the number of prevented plots by way of individuals or groups who were arrested under terrorism charges could underestimate program effectiveness. Phil Mudd writes that “statistics showing how many individuals are successfully prosecuted for terrorism violations are misleading.”125 He notes that intelligence and law enforcement agencies “have a responsibility to protect the public, not to amass terrorist arrests. So when the best disruption tool turned out to be prosecution on other charges, we didn’t hesitate.”126 This means that there could be dozens of foiled terror plots that are not being accounted for because the individuals were not arrested under terrorism charges. Director of National Intelligence James Clapper also suggests that using foiled terror plots as the only metric is off the mark. He states that
“The standard metric that has been used, and we sort of fell into this trap ourselves in the aftermath of the (Snowden) leaks, is: How many plots were foiled by virtue of this tool?
125 Phil Mudd, Takedown, 186. 126 Ibid. 44
That’s the wrong metric – or, at least, it shouldn’t be the only metric.”127 He goes on to extrapolate how a dozen or so plots that when discovered seemed fairly serious, but after they were fully investigated washed out.128 He argues that “It didn’t foil a plot, but we were able to relieve the mind – the ‘peace of mind metric’.”129 These are both clear examples from seasoned intelligence officials regarding the flaws in looking strictly at foiled terror plots or terrorism arrests. Thus, the lack of information regarding known cases is not the only impediment in establishing a causal relationship between a program’s robustness and its effectiveness.
As previously described in the methodology section, the lack of a comprehensive, well-defined data-set is also a problem. Neither the New America nor the Heritage
Foundation data-sets is comprehensive, as one instance of a prevented terror plot is included on one but not the other. Lacking an all-inclusive data-set regarding prevented terror plots in the United States makes it difficult to assess how effective the NSA’s data collection program has truly been. If a data-set could be compiled that focused on prevented terror plots and attacks and was established on sound methodological parameters that was supported by existing literature, it would greatly assist the public in being able to assess how effective counterterrorism efforts have truly been. But as this paper has shown, it would be a difficult task to compile such a data-set.
127 Loch K. Johnson, “A Conversation with James R. Clapper, Jr., The Director Of National Intelligence in the United States,” Intelligence and National Security, 30:1, (December 4, 2014), 16, DOI: 10.1080/02684527.2014.972613. 128 Ibid. 129 Ibid. 45
Conclusion
This paper attempted to take an unbiased, empirical look at whether or not the
NSA’s data collection program was effective in reaching its stated goals through the compilation of the two most comprehensive data-sets available. Even though a clear, strong causal relationship could not be established between the robustness of NSA’s data collection program since 9/11 and its effectiveness in preventing terrorist attacks, there is still some solid information discovered from the research. A general assumption can be made regarding the efforts of the NSA in regards to counterterrorism policy execution.
While there are only nine confirmed cases of terrorism prevention in which the NSA was involved, there are plenty in which the NSA could have played a role. This suggests, though it does not confirm, that the NSA plays an important role in assisting the United
States government attain the goals established through its counterterrorism policy.
However, there is still much room for additional research. If a data-set with a well- researched and supported methodology were created that was dedicated to the tracking of prevented terror plots in America, then a much better picture could be formed about the
United States counterterrorism efforts. A data-set of this type and scope could greatly benefit public researchers who look to expand existing knowledge regarding the United
States government’s counterterrorism efforts.
46
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