Intelligence Averts Another Attack
Why do Democrats in Congress want to change key laws that have helped to discover terrorist plots?
* OCTOBER 1, 2009, 10:44 P.M. ET

By MICHAEL B. MUKASEY

One would think that the arrests last week of Najibullah Zazi, charged with plotting to bomb New York City subways—and of two others charged with planning to blow up buildings in Dallas, Texas, and Springfield, Ill.—would generate support for the intelligence-gathering tools that protect this country from Muslim fanatics. In Mr. Zazi’s case, the government has already confirmed the value of these tools: It has filed a notice of its intent to use information gathered under the Foreign Intelligence Surveillance Act, which was specifically written to help combat terrorists and spies.

Nevertheless, there is a rear-guard action in Congress to make it more difficult to gather, use and protect intelligence—the only weapon that can prevent an attack rather than simply punish one after the fact. The USA Patriot Act, enacted in the aftermath of 9/11, is a case in point.

This law has a series of provisions that will expire unless Congress renews them. Up for renewal this year is a provision that permits investigators to maintain surveillance of sophisticated terrorists who change cell phones frequently to evade detection. This kind of surveillance is known as “roving wiretaps.” Also up for renewal are authorizations to seek court orders to examine business records in national security investigations, and to conduct national security investigations even when investigators cannot prove a particular target is connected to a particular terrorist organization or foreign power—known as “lone wolf” authority.

Roving wiretaps have been used for decades by law enforcement in routine narcotics cases. They reportedly were used to help thwart a plot earlier this year to blow up synagogues in Riverdale, N.Y. Business records, including bank and telephone records, can provide important leads early in a national security investigation, and they have been used to obtain evidence in numerous cases.

The value of lone wolf authority is best demonstrated by its absence in the summer of 2001. That’s when FBI agents might have obtained a warrant to search the computer of Zacharias Moussaoui, often referred to as the “20th hijacker,” before the 9/11 attacks—although there was no proof at the time of his arrest on an immigration violation that he was acting for a terrorist organization. But a later search of his computer revealed just that.

Rather than simply renew these vital provisions, which expire at the end of this year, some congressional Democrats want to impose requirements that would diminish their effectiveness, or add burdens to existing authorizations that would retard rather than advance our ability to gather intelligence.

One bill would require the government to prove that the business records it seeks by court order pertain to an agent of a foreign power before investigators have seen those records. The current standard requires only that the records in question do not involve a person in the United States, or that they do relate to an investigation undertaken to protect the country against international terrorism or spying.

The section of the Patriot Act that confers the authority on investigators to seek these records was amended in 2006 to add civil liberties protections when sensitive personal information about a person in the U.S. is gathered. It passed the Senate overwhelmingly with support that included then-Sens. Barack Obama and Joe Biden.

The same proposed legislation would make it harder to obtain a real-time record of incoming and outgoing calls—known as a pen register—in national security cases. It does so by requiring that the government prove that the information sought in this record relates to a foreign power. Currently, the government can obtain a court order by certifying that the information sought either is foreign-intelligence information or relates to an investigation to protect against foreign terrorism or spying.

While the changes may sound benign, they turn the concept of an investigation on its head, requiring the government to submit proof at the outset of an investigation while facts are still being sought. In any event, a pen register shows only who called whom and nothing about the content of the call, and thus raises none of the privacy concerns that are at stake when a full-fledged wiretap is at issue. Moreover, the underlying information in a pen register is not private because telephone companies routinely have it.

Other proposals target national security letters, known as NSLs, which are administrative subpoenas like those issued routinely by the FBI and agencies as diverse as the Agriculture Department and the IRS to get information they need in order to enforce the statutes they administer. One Democratic bill would impose a four-year sunset on the FBI’s authority to issue such letters where none exists now. Another, the “Judicious Use of Surveillance Tools In Counterterrorism Efforts Act of 2009,” would bar their use entirely to get information about local or long-distance calls, financial transactions, or information from credit reports.

But this is precisely the kind of information that would be useful to an investigator trying to find out who a terrorist is calling or how much money he is receiving from overseas. The FBI already has the authority to obtain this kind of information in cases involving crimes against children. The Drug Enforcement Administration has it in drug cases. There is no sense in giving investigators in national security cases less authority than investigators in criminal cases, and in criticizing them for failing to connect the dots while denying them the authority to discover the dots.

Mr. Zazi’s arrest is only the most recent case in which intelligence apparently has averted disaster. Cells have been broken up and individual defendants convicted in New York, Virginia, North Carolina, Oregon, Texas and Ohio.

But a disaster once averted is not permanently averted, as the writer Jonah Goldberg has noted. After the 1993 World Trade Center bombing killed six people and injured hundreds, Ramzi Youssef, the mastermind, was caught, convicted and put in the maximum security prison at Florence, Colo. Nonetheless, the World Trade Center towers are gone along with thousands of people.

Those who indulge paranoid fantasies of government investigators snooping on the books they take out of the library, and who would roll back current authorities in the name of protecting civil liberties, should consider what legislation will be proposed and passed if the next Najibullah Zazi is not detected.

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Patriot Act Helped Foil NY Terror Plot
September 30, 2009

President Obama called New York Police Commissioner Ray Kelly to thank him for his efforts in thwarting a planned terrorist attack on the city’s subway system, which counterterrorism experts describe as the most serious terror plot since 9/11. But Obama should have also thanked his predecessor in the White House.

The arrest and indictment of Najibullah Zazi on charges of conspiracy to use weapons of mass destruction was made possible by the “roving wiretaps” allowed by the Patriot Act, which was signed into law in 2001 by President George W. Bush. “All the layers of defense President Bush set up after Sept. 11 are working,” Rep. Peter King, R-N.Y., pointed out. The Patriot Act caused plenty of controversy, but it was key to the Bush administration’s successful eight-year counterterrorism strategy that focused on disrupting terror attacks and thereby preventing the deaths of more Americans here at home.

Even the FBI’s investigation into the 24-year-old airport shuttle driver began on Bush’s watch. Agents tracked the Afghan native (and legal resident of the United States) when he traveled to the tribal areas of Pakistan last year, where he was allegedly taught how to make bombs by al Qaeda operatives. Nine pages of handwritten formulas for homemade explosives, fuses and detonators were later found on his laptop, e-mailed from an Internet account originating in Pakistan, court documents charge. This is exactly the kind of foreign communications the Patriot Act was designed to intercept.

After purchasing “unusually large quantities of hydrogen peroxide and acetone products from beauty supply stores” in Denver this summer, Zazi on Sept. 6 allegedly asked an unnamed individual to give him “the correct mixtures of ingredients to make explosives” before leaving acetone residue in a Colorado hotel room. Tailed by the FBI, he rented a car and drove to New York, where his fingerprints were reportedly found on batteries and a scale in a Queens home that law enforcement officials raided on Sept. 14.

Also indicted in the subway bombing plot was Queens imam Ahmad Wais Afzali — who warned Zazi in a call intercepted by the FBI around Sept. 11 that he was under investigation, thus forcing officials to speed up the arrest. Again, this wiretap is exactly the kind of domestic communication the Patriot Act was designed to intercept in the effort to prevent new bloodshed.

Many questions remain, including the size of Zazi’s terror network and whether he has any association with the Taliban. But we already know what could have happened if the FBI lacked the tools it needed to interrupt the plot. Or what could happen in the future if key provisions of the Patriot Act, set to expire on Dec. 31, are not renewed by the president and Congress.

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[...] A Sneak and Peak Look at the JUSTICE Act [...]

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“to leave the door open for surveillance of US Citizens at the discretion of a Judge and Holders choice of targets. ”

The other choice, don’t pass the bill, and the judge is largely cut out of the loop. Keep in mind that at present, and for the next few years, the majority of Federal Judges will be appointees of Republican Presidents. (If i were writing the legislation my self, the PATRIOT Act provisions that facilitated judge-shopping by the Feds would be further cut back.)

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Ben, Eric Holder, the US AG is not known for his sense of fairness or justice. He was part of the Janet Reno DOJ that brought Us Ruby Ridge, Waco and the Elian Gonzales incidents. His re-opening for Prosecution of the CIA cases is fully representative of his mindset and intent.

This Bill appears to leave the door open for surveillance of US Citizens at the discretion of a Judge and Holders choice of targets. I did not like the original flavor of the Patriot Bill and history and not “conclusion jumping” leads me to that conclusion. Why has ACORN not been subject to investigation by the FBI on RICO Statutes or the New Black Panthers for Voter Intimidation?

There is some past and recent history offered here for your consideration. I have been off “Jump Status” since March of 05 since I retired but I am neither deaf, blind or senile. Do I trust the Obama Regime to keep Me safer here? NOPE! Do I trust the Obama Dept of Homeland Security to keep watch on Terrorists Cells from Middle Eastern origin or overstayed VISAs? NOPE!

Enforcement of Existing Laws is what is honestly needed, not new ones that will be as selectively enforced as the old ones were. In my opinion most Domestic Terrorists are in Congress or part of Team Obama right now.

I am not an ignorant redneck from Montana. I am a graduate of UNC Chapel Hill, the University of Maryland and the War College and although I am not an Attorney, I can read, write, do better than supermarket math and have been involved in US Foreign Policy, understand how things work in third world countries and am seeing My Country become one from incompetent leadership, bad laws and exercised sufficient good judgment enough to retire as an O-6.

The Bill looks like something that needed more prudent thought and if I were in Congress I could not vote to approve it. Not that I would ever wish to soil myself with politics.

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Ryan: With no new bill, all of the existing Patriot Act powers can be deployed. I won’t claim that Feingold’s propsals will absolutely protect against abuse, should the Justice Dept and/or Homeland Security bow to political pressure (from either the Obama Administration or a hypothetical future Republican President,) but they do raise the legal threshold, as well as oversight from the Congress.

I’d prefer an even greater rollback of the surveillance powers, say to those in place during Gerald Ford’s Presidency. Senator Feingold, whio I believe shares that preference, submitted what he considers the best bill that can pass.

My take, Obama won’t directly oppose the bill, but will try to get its specifics watered down. There’s strong parts of each Party who welcome broad governmental powers, but also elements in each who value the rights to Privacy, speech, association, and assembly. We’re only going to preserve these rights with a cross-party alliance.

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Ben Masel said; “Recalling all the outrage over the (imo) overbroad Homeland Security report calling for increased surveillance on ‘rightwing extremism’ a few months back, I’d imagine there’d be a recognition that this bill is the best shield you guys will get. You don’t welcome Feingold’s efforts at oversight of Holder and Napolitano?”

Of course, that is if the bill would apply to us (i.e. right wingers). As if the Democratic party does not set up double standards for their benefit. An act they frequently hold others responsible for, except themselves despite being quiet good at it.

Anyway, this is an interesting article Wordsmith. However, I am not sold on the PATRIOT Act and the reason being is that I do not see how it has effectively improved our abilities to track terrorism.

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Old Trooper: Instead of jumping to conclusions, have a look at the bill itself.

http://www.eff.org/files/HEN09874.pdf

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With Dick & Bernie pushing it the picture gets more clear. It must be applicable only to “Domestic” “Terrorists”. Veterans, Tea Party attendees, opposition Parties, Property Rights advocates, NRA Members, Conservative Talk Show Radio Personalities and the folks that will be part of the coming Tax Revolts.

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[...] Maybe they’ll ignore the fact that the White House is using the National Endowment for the Arts to fund political propaganda? Maybe they’ll turn a blind eye to the fact that President Obama has done a 180 on his position and is ready to extend three crucial provisions of the Patriot Act? [...]

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