Feinstein's Phony Excuse for NSA Spying

More than a few bizarre aspects jumped out at me when I attended the Senate Judiciary Committee's hearing on Oct. 2. Instead of providing needed oversight of the Foreign Intelligence Surveillance Act (FISA) in light of shocking whistleblower disclosures about National Security Agency's secret (and arguably illegal) interpretations that led to military surveillance and massive collection of metadata about innocent American citizens, it seemed much of the hearing went in the direction of overlook instead of oversight.

For starters, the two fact witnesses, Director of National Intelligence James Clapper and NSA Director Keith Alexander, were not even asked to swear to tell the truth before they testified even though both have been discovered to have previously answered similar questions from Congress less than honestly. By weird contrast, the three professors, who testified after Clapper and Alexander and who merely provided their views of the law and technology, were asked to raise their right hands and were sworn in.

There's no scientific evidence that adding more hay (i.e., non-relevant data about innocent people) to any pre-existing database makes it easier to discern criminal actors. In fact, in the trillions of pieces of data gathered, there is only one such instance which the government has thus far been able to identify. According to the FBI, it's the only case involving a "terrorist plot" with a "homeland nexus" where the NSA's telephone program played a "critical" role. But making the best of that dismal statistic, on July 31, an FBI official testified to this same Senate Committee: "In order to find the needle that matched up against that number, we needed the haystack."

Senators apparently are seizing upon this upside-down logic to justify the NSA's massive data collection. Even worse, Sen. Dianne Feinstein, D-California, who also serves as the Intelligence Committee chair, was allowed, about halfway through, to give a passionate but factually inaccurate narrative of the 9/11 attacks, insisting any curtailment of NSA data collection would risk another 9/11.

Sen. Feinstein is actually going a step further and seeking expansion of NSA surveillance on U.S. soil. In her speech, Feinstein described the desperate, pre-9/11 warning from Director of Central Intelligence (DCI) George Tenet and then referred to the case of the (arrested) "terrorist who wanted to learn to fly without taking off or landing."

She also mentioned al-Qaeda pilot Midhar's entry into California but attributed the lack of sharing of that key information to the problem of "stove-piping" of intelligence that kept agencies from learning that al-Qaeda terrorists had entered California. Her implicit conclusion was that if more metadata had been collected prior to 9/11, the attacks could have been prevented. (Stove-piping usually refers to raw, unevaluated intelligence being sent directly to higher-ups and policymakers without being shared with analysts who can put the data in context.)

With all due respect, Sen. Feinstein has it completely wrong! In a nutshell, the main finding of the 9/11 Commission, based upon the earlier findings of the Joint Intelligence Committee's Inquiry (JICI) which Sen. Feinstein participated in and to whom I actually addressed my "whistleblower memo" of May 21, 2002, about the FBI's pre-9/11 failures (and also based upon the Senate Judiciary Committee's investigation which Sens. Patrick Leahy, D-Vermont, and Charles Grassley, R-Iowa, led in the spring-summer of 2002; and the lengthy Department of Justice's Inspector General Investigation of FBI failures) was that the lack of sharing of information within agencies, between agencies and with the public was the major problem that enabled the 9/11 al-Qaeda terrorist attacks to occur.

Many examples of these failures to share information (which include but are broader than mere "stove-piping") were documented. They range from the Moussaoui case in Minnesota to the case of two (not one) terrorist suspects entering California, Al Midhar and Al Hazmi, whom the CIA had long been following, since their al-Qaeda-related meeting monitored by the CIA in Kuala Lumpur.

The CIA knew of the terrorist suspects' entry into California but failed to notify the FBI in a timely manner, not until a few weeks before 9/11. To this day, the facts are murky as to how and why this critical information was not shared.

Moussaoui, who was later convicted of conspiring in the 9/11 plot, was arrested in Minnesota on Aug. 16, 2001, and was quickly suspected of involvement in terrorism. But FBI Headquarters supervisors failed to share this information with the proper Justice Department office to seek a FISA order to search Moussaoui's belongings despite 60 to 70 detailed requests via telephone, email and written draft declaration.

The FBI case agent later testified at Moussaoui's trial that this FBI/HQ failure ("stove-piping" or maybe the more accurate term would be "stonewalling") constituted "criminal negligence." Sens. Leahy and Grassley may also recall that the Senate Judiciary Committee (at which I testified on June 6, 2002) later uncovered the fact that the FBI's National Security Law Unit Chief failed to read the detailed, written draft declarations submitted by Minnesota FBI agents in the Moussaoui case but simply relied upon a short verbal briefing.

A couple of years ago, former New York Times reporter Phil Shenon (who also authored The Commission, a book about the 9/11 Commission) discovered a related "terrible missed chance" involving a prior written memo addressed to then-FBI Director Louis Freeh written in April 2001 explicitly warning of upcoming terrorist attacks by Osama bin Laden's group.

The up-to-then unnoticed memo also stated that bin Laden was "heavily entwined" with the Chechen leader Ibn Al Khattab. However, several of the high-level FBI executives, to whom this April 2001 memo was addressed by name, later denied having read it.

It turned out the missed information linking Al Khattab to bin Laden was precisely the reason FBI/HQ supervisors failed to appreciate the foreign power connection (for which they later were faulted). The FBI supervisors were held at fault for failing to recognize the foreign power connection but their own supervisor claimed he had not read this April 2001 memo and therefore had not shared it with them.

There are so many more examples that were adduced and documented of the U.S. intelligence agencies already possessing critical pieces of information and intelligence, most importantly also including the NSA's interception of conversations between al-Qaeda terrorist planners that were intercepted before 9/11 about the upcoming attacks.  But the intercepted conversations were not translated or understood until after the attacks occurred.

Obviously some senators have forgotten the general excuse given by many law enforcement and intelligence officials for why they did not share or act upon the key information they already possessed -- and in some cases, did not even read -- until after 9/11. That excuse was that "intelligence is like a firehose and you can't get a sip from a firehose." In other words, the earlier officials' excuse for not even reading key intelligence memos, let alone properly sharing and disseminating such information or acting upon it, was that there was already too much intelligence pouring in before 9/11.

Related to the "firehose" excuse for why the existing, pre-9/11 intelligence data was not read, shared or acted upon is the claim it was impossible to make sense of so much intelligence, to prioritize the importance of the various data, and "to connect the dots" when there is so much flowing in.