Officials have said that NSA surveillance tools have helped disrupt terrorist plots or identify suspects in 54 cases in the United States and overseas. In many of those cases, an agency program that targets the communication of foreigners, including e-mails, has proved critical.
But the importance of the phone logs in disrupting those plots has been less clear — and also far more controversial since it was revealed in June.
Across a dozen years of records collection, critics say, the government has offered few instances in which the massive storehouse of Americans’ records contained the first crucial lead that cracked a case — and even those, they say, could have been obtained through a less intrusive method.
“There’s no reason why NSA needed to have its own database containing the phone records of millions of innocent Americans in order to get the information related to Moalin,” said Sen. Mark Udall (D-Colo.), a Senate Intelligence Committee member who has been pressing officials for evidence of the program’s effectiveness. “It could have just as easily gone directly to the phone companies with an individualized court order.”
U.S. officials say that the NSA’s programs often work in conjunction with one another — and that taking away a critical ability such as the “bulk collection” of phone records would undermine the agency’s effort to prevent terrorist attacks.
“You essentially have a range of tools at your disposal — one or more of these tools might tip you to a plot, other [tools] might then give you an exposure as to what the nature of that plot is,” NSA Deputy Director John C. Inglis told a Senate panel last week. “Finally, the exercise of multiple instruments of power, to include law enforcement power, ultimately completes the picture and allows you to interdict that plot.”
The NSA collects its vast digital archive of phone records under a provision of the Foreign Intelligence Surveillance Act. U.S. officials emphasize that those logs do not contain the names of customers or content — just “metadata,” which includes phone numbers and the times and dates of calls. They note that they need a “reasonable, articulable suspicion” that a number they wish to check in the database is linked to a foreign terrorist group.
And they say that without having all the calls in one place and easily searchable with a keystroke, finding links to suspicious numbers would be tedious and time-consuming.
Moalin’s lawyer said he is surprised that counterterrorism officials have cited his client’s case as a hallmark success.
“The notion that this case could be used to justify a mass collection of data is mind-boggling, considering it’s $8,500 that went to Somalia,” said Joshua Dratel, who denied that his client sent money to the terrorist group.
Needle in a haystack
It was a tip that put Moalin on the FBI’s radar in 2003. But when investigators found no link to terrorism, they closed the case. Then, in 2007, the NSA came up with a number in Somalia that it believed was linked to al-Shabab. It ran the number against its database.
Inglis said officials had no idea whether the number had ties to any number in the United States. “In order to find the needle that matched up against that number, we needed the haystack,” he said.
The NSA found that the San Diego number had had “indirect” contact with “an extremist outside the United States,” FBI Deputy Director Sean Joyce told the Senate last week. The agency passed the number to the FBI, which used an administrative subpoena to identify it as Moalin’s. Then, according to court records, in late 2007, the bureau obtained a wiretap order and over the course of a year listened to Moalin’s conversations. About 2,000 calls were intercepted.
Over several months in 2008, prosecutors say, Moalin arranged for the transfer of several thousand dollars to al-Shabab. They say he sent the money to a prominent al-Shabab military leader named Aden Hashi Ayro and other associates. In May 2008, Ayro was killed by a U.S. cruise missile strike.
In 2009, an FBI field intelligence group assessed that Moalin’s support for al-Shabab was not ideological. Rather, according to an FBI document provided to his defense team, Moalin probably sent money to an al-Shabab leader out of “tribal affiliation” and to “promote his own status” with tribal elders.
In 2010, three years after the bureau opened an investigation, it arrested Moalin as he was about to board a flight to Somalia to visit his wife and children.
Prosecutors alleged that Moalin and some acquaintances were sending money to al-Shabab to finance attacks against the transitional government of Somalia and allied fighters from Ethiopia, as well as civilians.
In the calls, Moalin is heard speaking to a man called “Sheikalow,” who prosecutors allege was Ayro, the al-Shabab commander. In one call, Sheikalow can be heard telling Moalin that it was “time to finance the jihad.”
Moalin’s defense attorneys argued that the voice was in fact that of a local police chief from Moalin’s home region, who sometimes goes by the name of Sheikalow. The police chief testified in a video deposition that he spoke with Moalin. The reference to jihad was about fighting the Ethiopians, not the West, Dratel said. He said the men were sending money to help build schools and orphanages.
In February, a jury convicted Moalin and three acquaintances — all Somali immigrants — on conspiracy to provide material support to terrorism. Moalin faces up to life in prison.
Identifying threats in U.S.
U.S. officials argue that Moalin’s number probably would not have surfaced — at least not in a timely fashion — had it not been for the database. And they draw a parallel with the period before the attacks of Sept. 11, 2001.
The NSA, targeting a safehouse in Yemen, intercepted seven calls from hijacker Khalid al-Mihdhar. But the NSA didn’t know where he was calling from. “Lacking the originating phone number, NSA analysts concluded that al-Mihdhar was overseas,” the Justice Department said in recently declassified reports to Congress on the phone records program.
“In fact, al-Mihdhar was calling from San Diego,” the reports said.
Had the intelligence community known where Mihdhar and a co-conspirator were and detained them, the “simple fact of their detention could have derailed the plan,” the 9/11 Commission said. To close that gap, the government created the phone call database. The goal, the reports say, is to “rapidly identify any terrorist threats emanating from within the United States.”
The NSA could put together a more limited dataset by going to every phone company and asking for all the numbers that have been in contact with a target number. But that takes time, and if analysts want to examine secondary contacts, they would have to go back to the phone company, officials said.
Such arguments do not persuade critics, even when the government asserts that the database helped break another case involving a co-conspirator in a plot to bomb the New York City subway system. “In both cases,” Sen. Ron Wyden (D-Ore.) said recently on the Senate floor, “the government had all the information it needed to go to the phone company and get an individual court order.”
If time was of the essence, he said, a different court order or administrative subpoena would allow for an emergency request for the records. Wyden noted that both Moalin and the subway plot co-conspirator were arrested “months or years after they were first identified” by mining the phone logs.
The bottom line, said Rep. Adam Schiff (D-Calif.), a House Intelligence Committee member, is that even if the program is “only occasionally successful, there’s still no justification that I can see for obtaining that amount of data in the first place.”
Timothy H. Edgar, a former deputy privacy officer at the Office of the Director of National Intelligence, said that he had pushed for a middle ground solution that would let the phone companies hold the data and perform the link analysis.
“You wouldn’t have this problem of having this massive database in the hands of the government, where the government is saying, ‘Trust us,’ ” said Edgar, who is now at Brown University’s Watson Institute for International Affairs.
Following the uproar about the NSA’s far-reaching collection of phone data, U.S. officials have said they are willing to discuss revisions. At the Senate hearing last week, Robert S. Litt, general counsel for the Office of the Director of National Intelligence, said the administration is open to seeing “whether there are changes that can be made that are consistent with preserving the essence of the program, and yet provide greater public confidence.”