Two days after the horrendous shootings in San Bernardino, Calif., White House press secretary Josh Earnest was asked by a reporter during his daily briefing, “Are we at the point where the administration is ready to, if not concede, become concerned about the possibility of a major intelligence failure on these individuals on the West Coast?”
How quickly people forget. It was little more than two years ago that reporters were questioning whether intelligence collection to discover terrorists had gone too far.
National Security Agency contractor Edward Snowden had distributed highly classified documents related to the National Security Agency’s collection of information related to terrorism at home and abroad, and White House press secretary Jay Carney had to deal with reporters asking such things as, “Is the government striking the right balance between privacy and security?”
On Dec. 19, 2013, a reporter asked Carney if it was accurate “that the bulk telephone collection [of metadata by the NSA] has not stopped a terrorist attack.” Hardly anyone mentioned that the NSA systems that were criticized after Snowden’s disclosures had mostly been initiated after 9/11, when the intelligence community was criticized for “not connecting the dots” to prevent those attacks.
I have watched this pendulum swing back and forth several times over the past 40 years. The current swing has come faster than normal, but here it goes again.
Snowden disclosed the so-called metadata collection program, through which the NSA collects from telephone companies the time, date and length of Americans’ phone calls, and stores that information for five years.
Under tight controls, a limited number of NSA analysts could have access to those records, but only if there were a reasonable, articulable suspicion that the U.S. number was linked to a foreign terrorist group. NSA analysts could go further and expand their inquiries to other numbers that were called by or that called the U.S. number.
Critics asserted that the program would allow the NSA or some future administration to misuse the system and put together a complete profile of an individual American. But although the system had been in effect for more than 10 years, neither Snowden nor any critic could show misuse.
Nonetheless, the system was changed.
Now the phone companies keep the records, and the NSA needs approval from a judge on the Foreign Intelligence Surveillance Court (FISC) to go after a U.S. number. On the other hand, with FISC approval, the NSA analysts have new authority to go after cellphone Internet call records, which they could not do before.
Adm. Michael S. Rogers, director of the NSA, told an industry group last week that the new law is “not an insignificant challenge” for the phone companies and that it remains to be seen how his agency can get records in fast-developing investigations.
It could be having an effect on the San Bernardino investigation into the activities of the now-dead shooters, Syed Rizwan Farook and his wife, Tashfeen Malik. Under court order, the raw telephone metadata records going back five years under the old system still remain in NSA hands but, under a court order, cannot be reviewed in the San Bernardino investigation, even with a warrant. (Had Farook’s number been picked up in some earlier search, that data would still be accessible to investigators.)
Farook had been radicalized by Islamist extremist websites going back at least to 2011 and, with his former neighbor, Enrique Marquez, allegedly planned attacks that year and in 2012 on a local community college and commuter highway, according to an FBI affidavit released Thursday with Marquez’s indictment.
Meanwhile, irrational fear that the two San Bernardino shooters represent a failure of U.S. intelligence and the beginning of an Islamic State offensive inside the United States is being generated by media coverage and Republican politicians.
The best example is a New York Times Dec. 12 story reporting that U.S. analysts had missed that Malik “talked openly on social media about her views on violent jihad. She said she supported it. And she said she wanted to be a part of it.”
Five days later, FBI Director James B. Comey corrected the Times story, stating that Malik’s extremist statements were made not “openly on social media” but in private messages not visible to the public. Thursday’s FBI affidavit showed that Farook’s radicalization came years before the Islamic State emerged and was generated primarily by lectures by Anwar al-Awlaki and other militants with the Yemen-based Al-Qaeda in the Arabian Peninsula.
The FBI also noted that at 8:43 a.m. on the morning of the shootings, Malik searched the Internet for an Islamic State website. Later she messaged, “We pledge allegiance to Khalifa bu bkr al bhaghdadi al quraishi,” indications of how little she knew about the Islamic State and its leader.
Nonetheless, politicians have since identified the couple’s attack as a sign that the Islamic State is directing activities in the United States.
For example, during last week’s Republican presidential candidates’ debate, Sen. Ted Cruz of Texas said, “We didn’t monitor the Facebook posting of the female San Bernardino terrorist because the Obama DHS [Department of Homeland Security] thought it would be inappropriate. She made a public call to jihad, and they didn’t target it.”
Recall that Comey said there was nothing of the sort posted publicly by the couple.
At his Friday news conference, President Obama pointed out, “No government is going to have the capacity to read every single person’s texts or emails or social media . . . if it’s not posted publicly.”
He then reminded reporters about that swinging pendulum: “Keep in mind it was only a couple years ago where we were having a major debate about whether the government was becoming too much like Big Brother.”