Fact-check: The NSA and Sept. 11

http://feeds.propublica.org/~r/propublica/main/~3/oyAvWg17kw0/

by Justin Elliott

In defending the NSA’s sweeping collection of Americans’
phone call records, Obama administration officials have repeatedly
pointed
out how it could have helped thwart the 9/11 attacks: If only the
surveillance program been in place before Sept. 11, 2001, U.S. authorities
would have been able to identify one of the future hijackers who was living in
San Diego.

Last weekend, former Vice President Dick Cheney invoked
the same argument.

It is impossible to know for certain whether screening phone
records would have stopped the attacks — the program didn’t exist at the time.
It’s also not clear whether the program would have given the NSA abilities it
didn’t already possess with respect to the case. Details of the current program
and as well as NSA’s role in intelligence gathering around the 9/11 plots remain
secret.

But one thing we do know: Those making the argument have ignored
a key aspect of historical record.

U.S. intelligence agencies knew the identity of the hijacker
in question, Saudi national Khalid al Mihdhar, long before 9/11 and had the
ability find him, but they failed to do so.

“There were plenty of opportunities without having to rely
on this metadata system for the FBI and intelligence agencies to have located
Mihdhar,” says former Senator Bob Graham, the Florida Democrat who extensively
investigated 9/11 as chairman of the Senate’s intelligence committee.

These missed opportunities are described in detail in the
joint congressional report
produced by Graham and his colleagues as well as in the 9/11 Commission report.

Mihdhar is at the center of the well-known story of the
failure of information sharing between the CIA and FBI and other agencies.

Indeed, the Obama administration’s
invocation of the Mihdhar case echoes a nearly identical argument made
by the Bush administration eight years ago when it defended the NSA’s
warrantless wiretapping program.

Mihdhar and the other hijacker with whom he lived in
California, Nawaf al Hazmi, were “experienced
mujahideen” who had traveled to fight in Bosnia in the mid-1990s and spent
time in Afghanistan.

Mihdhar was on the intelligence community’s radar at least
as early as 1999. That’s when the NSA had picked up communications from a
“terrorist facility” in the Mideast suggesting that members of an “operational
cadre” were planning to travel to Kuala Lumpur in January 2000, according to
the commission
report. The NSA picked up the first names of the members, including a
“Khalid.” The CIA identified him as Khalid al Mihdhar.

The U.S. got photos of those attending the January 2000
meeting in Malaysia, including of Mihdhar, and the CIA also learned that his
passport had a visa for travel to the U.S. But that fact was not shared with
FBI headquarters until much later, in August 2001, which proved too late.

“Critical parts of
the information concerning al-Mihdhar and al-Hazmi lay dormant

within the
Intelligence Community for as long as eighteen months,” the congressional
9/11 report concludes,
“at the very time when plans for the
September 11 attacks were proceeding.

The CIA missed
repeated opportunities to act based on information in its possession that these
two Bin Ladin associated terrorists were traveling to the United States, and to
add their names to watchlists.”

Using their true names, Mihdhar and Hazmi for a time beginning
in May 2000 even lived
with
an active FBI informant in San Diego.

The U.S. lost track of Mihdhar’s trail in Asia in early
2000, but there were more chances.

“On four occasions in 2001, the CIA, the FBI, or both had
apparent opportunities to refocus on the significance of Hazmi and Mihdhar and
reinvigorate the search for them,” the 9/11 Commission report
says. The report concludes that if more resources had been applied and a
different approach taken, Mihdhar could have been found and stopped.

So, apart from all the missed opportunities, would a
theoretical metadata program capturing phone records of all Americans made a
difference before 9/11?

Key details
about Mihdhar’s activities and the NSA before 9/11 remain classified so it’s
difficult answer conclusively.

Let’s turn to the comments of FBI
Director Robert Mueller before the House Judiciary Committee last week.

Mueller noted that intelligence agencies lost track of
Mihdhar following the January 2000 Kuala Lumpur meeting but at the same time
had identified an “Al Qaida safe house in Yemen.”

He continued: “They understood that that Al Qaida safe house
had a telephone number but they could not know who was calling into that
particular safe house. We came to find out afterwards that the person who had
called into that safe house was al Mihdhar, who was in the United States in San
Diego. If we had had this [metadata] program in place at the time we would have
been able to identify that particular telephone number in San Diego.”

In turn, the number would have led to Mihdhar and
potentially disrupted the plot, Mueller argued.

(Media
accounts indicate that the “safe house” was actually the home of Mihdhar’s
father-in-law, himself a longtime al Qaida figure, and that the NSA had been
intercepting calls to the home for several years.)

The congressional 9/11 report sheds some further
light on this episode, though in highly redacted form.

The NSA had in early 2000 analyzed communications between a
person named “Khaled” and “a suspected terrorist
facility in the Middle East,” according to this account. But, crucially, the
intelligence community “did not
determine the location from which they had been made.”

In other words, the report suggests, the NSA actually picked
up the content of the communications between Mihdhar and the “Yemen safe house”
but was not able to figure out who was calling or even the phone number he was
calling from.

“[Y]ou should not assume that the NSA was then able to
determine, from the contents of communications, the originating phone number or
IP address of an incoming communication to that place in Yemen,” said Philip
Zelikow, who was executive director of the 9/11 Commission, in an email to
ProPublica. “It would depend on the technical details of how the signals were
being monitored.”

It wasn’t until
after 9/11 that the FBI figured out that “Khaled” was hijacker Khalid
al-Mihdhar, calling from San Diego.

The 9/11 Commission report itself does not appear to
describe the communication between Mihdhar and Yemen.

When the Commission report was released in 2004, according
to Zelikow, “we could not, because the information was so highly classified publicly
detail the nature of or limits on NSA monitoring of telephone or email
communications.” Information on the topic remains classified, he added.

Zelikow called Mueller’s recent assertion about the metadata
program “accurate and fair.”

“It is definitely possible that, with the kind of databases
that Mueller is discussing, used properly, the US government would have been
alerted during 2000 to the presence in the U.S. — and possibly the location —
of these individuals — and possibly others he did not mention who arrived
later,” Zelikow said.

Theories about the metadata program aside, it’s not clear
why the NSA couldn’t or didn’t track the originating number of calls to Yemen it
was already listening to.

Intelligence historian Matthew Aid, who wrote the 2009 NSA
history Secret
Sentry, says that the agency would have had both the technical ability and
legal authority to determine the San Diego number that Mihdhar was calling from.

“Back in 2001 NSA was routinely tracking the identity of
both sides of a telephone call,” he told ProPublica.

The NSA did not respond to a request for comment. The FBI
stood by Mueller’s argument but declined to further explain how the metadata
program would have come into play before 9/11.

There’s another wrinkle in the Mihdhar case: In the years
after 9/11, media
reports also
suggested that there were multiple calls that went in the other direction: from
the house in Yemen to Mihdhar in San Diego. But the NSA apparently also failed
to track where those calls were going.

In 2005, the Los Angeles Times quoted
unnamed officials saying the NSA had well-established legal authority before
9/11 to track calls made from the Yemen number to the U.S. In that more
targeted scenario, a metadata program vacumming the phone records of all
Americans would appear to be unnecessary.

That story followed President
Bush’s defense of the NSA warrantless wiretapping program, which had just been revealed
by the New York Times.

“We didn’t know they were here,
until it was too late,” Bush said in a December 2005 live
radio address from the White House.

It’s not clear how the wiretapping
program would have come into play in the Mihdhar case. The program at issue in
2005 involved getting the actual content of communications, which the NSA had
already been doing in the Mihdhar case.

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