tenacity and control

Our review suggests that the information contributed to terrorist investigations by the use of section 215 telephony meta-data was not essential to preventing attacks,” the report found, “and could readily have been obtained in a timely manner using conventional section 215 orders.”

Then there’s the tale of three captured soldiers in Iraq, invoked in 2007 to show the need for the predecessor to the FISA Amendments Act, basis for the NSA’s PRISM program. The secret Foreign Intelligence Surveillance Court had supposedly ruled that even totally foreign communications could not be intercepted without a warrant if they were picked up as they passed through the United States. As a result, claimed then-Director of National Intelligence Michael McConnell, a time-sensitive effort to wiretap the insurgents believed to be holding the soldiers was delayed for 12 hours.

Only later did it become clear that the delay was due to internal bureaucratic wrangling, not the new court ruling—which had not even taken effect yet, and in any event, would not have required the government to obtain a warrant in such an emergency situation. As James Bamford recounts in his book The Shadow Factory, it turned out that several of the subjects of that wiretap were already under surveillance, but it didn’t matter: The NSA’s primary target was quickly captured by troops in the field, and found to have been uninvolved in the kidnapping.

Perhaps most egregious is the case of Magdy Mahmoud Mostafa el-Nashar, a former acquaintance of the perpetrators of the 2005 London transit-system bombings. Though he was ultimately cleared of any wrongdoing, FBI Director Robert Mueller later told Congress that investigators had been delayed in obtaining the suspect’s education records because they were not covered by the bureau’s National Security Letter authorities—supposedly showing the need for a broader power to demand records without judicial approval. “We should’ve been able to have a document, an administrative subpoena that we took to the university and got those records immediately,” Mueller testified.

Yet it later came out that an FBI agent had quickly obtained the records under a traditional grand-jury subpoena—then, with the documents in hand, been ordered over the phone to return them and try again with an NSL, even though NSLs clearly didn’t apply to education records. The FBI had, in other words, created its own unnecessary delay, then used the story to claim it needed more power.

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