Editore"s Note
Tilting at Windmills

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September 7, 2007
By: Kevin Drum

SURVEILLING STUTTGART....The LA Times reports some background detail about the arrest of those three terrorist wannabes in Germany on Wednesday:

A U.S. intelligence intercept of suspicious communications between Pakistan and Stuttgart was the initial break that ultimately led to the arrest this week of three suspected Muslim militants accused of plotting massive car-bomb attacks here against Americans, U.S. and German officials told the Los Angeles Times on Thursday.

....The counter-terrorism official described the initial intercept [last December] as "a key factor. This was a long investigation. But it helped build the case. It led to a very long period of surveillance, and the arrests. It also continued during the investigation."

This year, U.S. intelligence agents intercepted a key communication in which militant handlers in Pakistan asked for an update on the plot and pushed the suspects to move faster, according to U.S. and German officials.

Interesting. These intercepts are pretty clearly a result of the NSA surveillance program we've heard so much about, and I'd guess that U.S. officials are leaking about this in order to demonstrate the value of the program.

Here's another guess: as you recall, the NSA program was put into crisis mode last May when a FISA judge issued a ruling "telling the administration flatly that the law's wording required the government to get a warrant whenever a fixed wire is involved." This meant that NSA was required to get a warrant even for communications entirely outside the U.S., which probably put a huge crimp into the German investigation. In other words, NSA officials weren't just generically concerned about the program as a whole (though they undoubtedly were), but were specifically concerned with this particular case.

If that's true, it suggests yet again just how reckless the administration's approach to surveillance has been. Everyone — literally everyone — was immediately willing to amend the FISA law to restore NSA's capability to monitor communications between two foreign locations. The administration could have passed a bill within a week that allowed surveillance of these terrorists to start back up if they'd wanted to. Instead, we likely lost a couple of month's worth of surveillance because the White House was bound and determined not merely to fix FISA, but to expand its scope dramatically.

That was a helluva gamble. Sure, the German terrorists were already under intense surveillance by German police by that time, but the story from the U.S. folks is that the intercepts from this year were vital to the investigation too. You'd think they'd want to get that back online as soon as possible, especially for a plot whose goal was massive American fatalities. Instead they played politics until the end of July, hoping both for some partisan juju as well as a chance to increase the unfettered power of the executive branch. Nice job, guys.

Kevin Drum 1:03 AM Permalink | Trackbacks | Comments (32)

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and to be clear i dont see why they should have to pursue a warrant in a exclusivly overseas surveillance. I am objecting to the fact that you are implying that checking with the court is some sort of insurmountable task.

Posted by: Hubris Sonic on September 7, 2007 at 1:22 AM | PERMALINK

Oh, Kevin, you can't possibly imagine they obediently stopped intercepting those calls, can you? For heaven's sake. Even a more law-abiding administration would have kept right on listening, giving up possible ability to prosecute these guys in the U.S. (which wasn't likely going to happen anyway) for the ability to monitor and foil the plot, as well as learn what they could about the handler and his network up the line in Pakistan.

I'm a full-throated civil liberties devotee, and even *I* would keep the monitoring in place in a case like this and take the consequences if it was somehow discovered and prosecuted. And HONESTLY, what are the chances of that happening?

Fie on the bastards for taking the long way around for the sake of their gawdawful "unitary executive" campaign, but don't imagine for one second that decision was coupled with meekly halting the listening itself.

Posted by: gyrfalcon on September 7, 2007 at 1:38 AM | PERMALINK

I don't trust any information that comes from U.S. government sources. I'm sorry, I just don't.

Posted by: How can you not be a skeptic these days? on September 7, 2007 at 1:45 AM | PERMALINK

Clearly Kevin has NO IDEA how this monitoring thing works (has been working). If you think NSA is the only one playing this "game" & there is no cooperation etc then you are really lost.

There is/was NO need for any reason to have stopped collecting irrespective of the status of these legal cases. Have you no imagination ?

*Sheesh* the ignorance.

"Discovery consists of seeing what everybody has seen and thinking what nobody has thought." - Albert von Szent-Gyorgyi

Posted by: daCasacadian on September 7, 2007 at 2:51 AM | PERMALINK

An intelligent enemy will expect their people to get caught, their operations to get disrupted, when going against a determined and intelligent adversary.

Indeed, they may even purposely use deception and expose some of their operations as to almost inevitably to get caught, so as to learn about the adversary and probe their weaknesses.

One can even imagine more false plots than legit plots, and the intelligence gained from the sum total of plots, which get uncovered, in what way, used patiently to devise the home run strikes.

Of course, one can also imagine for PR purposes minor acts or operations getting rolled up after significant surveillance and overhyped to further a propagandistic agenda, while this "enemy" is really just laying low and awaiting the inevitable political and attentional changes over the course of time, and not really implementing any number of brilliant operatios at the moment we need to fear for our lives over (inordinately).

Posted by: Jimm on September 7, 2007 at 3:25 AM | PERMALINK

How do you know a warrant for the tap wasn't obtained under German law? Wiretaps are a Land (state) matter in Germany. This item reports that the Karlsruhe Constitutional Court struck down a law in Lower Saxony allowing fishing taps on vague suspicion, but by implication allowed taps based on stronger evidence.

Posted by: James Wimberley on September 7, 2007 at 4:34 AM | PERMALINK

I understand the legal/constitutional issues, but do you argue that as a moral matter, it's worse for the American government to monitor calls involving Americans than it is for them to monitor two foreigners? Cause if this is the case then I have a solution for this whole monitoring quagmire - sell a close ally (say Britain) the full suite of NSA spying kit (they already have most bits and pieces, I understand). Then they can monitor American-to-American traffic without any warrants (they don't need warrants to spy on stinkin' foreigners either, remember) and tell us if there is anything interestingly terrorist-related. Would that be OK with you?

If in fact it's not OK to ever monitor Americans without a warrant, what make it so obviously OK to spy on foreigners?

Posted by: JohnTh on September 7, 2007 at 5:38 AM | PERMALINK

Even though I am a libertarian, I actually agree with the NSA's ability to eavesdrop on communications entirely outside of the U.S. without a warrant, particularly when there is probable cause to believe the communications are nefarious. However, I remain skeptical that these guys were the archcriminals they are being portrayed as. If they are, I say, "good police work". However, it also merely further highlights the utter foolishness of trying to solve terrorist problems with military means.

Posted by: The Conservative Deflator on September 7, 2007 at 6:35 AM | PERMALINK

Clearly you have never heard about the Echelon listening station in Europe.
It's a US installation that's famous for surveiling communications throughout Europe. The US has repeatedly been accused of using intercepts for the purpose of industrial espionage instead just for security purposes.

And, are you really that naive that you think the US stopped listening to purely foreign communications?
Sheesh, KEVIN.

Posted by: mADSTER on September 7, 2007 at 6:57 AM | PERMALINK

we likely lost a couple of month's worth of surveillance

Pretty sure they just went about business as usual with their ass uncovered.

Posted by: B on September 7, 2007 at 8:01 AM | PERMALINK

Foreign communications between foreigners that take place entirely outside of the United States, has, is and I hope always will be fair game for intercept and has ZERO to do with FISA. I love ya Kevin, but get your facts straight before you post.

Posted by: calipygian on September 7, 2007 at 8:19 AM | PERMALINK

U.S. officials are leaking about this in order to demonstrate the value of the program.

Or maybe they're overplaying the importance of the intercept in order to justify a worthless program. Let's see, which scenario is more likely, What Would Rove do?

Posted by: tomeck on September 7, 2007 at 8:35 AM | PERMALINK

To follow up, conflating legitimate intercept of foreign communications with the situation we find ourselves in vis-a-vis FISA and domestic electronic surveillance does no one any favors and your conflation of the two undercuts any arguments you have against the latter.

Posted by: calipygian on September 7, 2007 at 8:48 AM | PERMALINK

There's also a nontrivial chance that the claim that U.S. intelligence intercepts helped contribute to breaking up this alleged plot is, well, complete hooey.

The leak was certainly made in order to justify the surveillance program; that doesn't mean the content of the leak is true.

Posted by: Nils on September 7, 2007 at 8:54 AM | PERMALINK

but kevin, have you read the story about the lead suspect, Gelowicz?

he had been a suspect for *years*. he had had multiple run-ins with the german cops, and they had been watching him for a long time.

you have been fed a story that is supposed to justify expanding u.s. signal intelligence, and to show that we should trust the nsa to take care of us.

it's a lie. a crock.

the details of how that sigint was collected do not matter: the story starts with a lie when it calls the intercept "the initial break".

everything from there out is misdirection.

Posted by: kid bitzer on September 7, 2007 at 8:55 AM | PERMALINK

Kevin, you're still *way* too naive about these guys, if you can write, "You'd think they'd want to get [allegedly legal surveillance] back online as soon as possible, especially for a plot whose goal was massive American fatalities," and think anyone in this administration gives a flying fuck about *any* number of American fatalities. (If your point is to say, "Wow, nobody in this administration gives a flying fuck about American fatalities," then maybe you're not as dense as you sound, but I'm *really* not getting that vibe from what you wrote, today or in the past)

We had PNAC lament that power would remain distributed in American government (among branches; among parties) until a "new Pearl Harbor"; we have an administration that *reacted* to 9/11 by seizing all the power they could -- but *not* by *doing* everything they could to thwart it (do the phrases, "Nobody could have anticipated" or "Good, you've covered your ass" sound at all familiar to you?). Oh, and we had about three thousand dead Americans, and a national freak-out about international terrorism that we're *still* not completely over.

We had an administration rush to war with Iraq for known lies, on manufactured evidence, against what would be international law if anyone else was capable of enforcing it against us, and we're still there. Which has given us four thousand-plus dead American troops (and a number of dead military contractors, etc., also American), tens of thousands of wounded/maimed Americans, hundreds of thousands of possible PTSD survivors, hundreds of thousands of dead Iraqis, millions of Iraqi refugees. Oh, and the one place we knew Al Qaeda *wasn't* operating in the Middle East is now a slaughterhouse of anarchic violence and a threat to suck its neighbors into international, sectarian strife, as well as a potential staging ground for a Gulf-of-Tonkin-style incident to excuse an attack on *Iran*, quite possibly with nuclear weapons.

We had Jack Goldsmith just describe David Addington, one of Cheney's loyal followers, as saying that "We're one bomb away from getting rid of that obnoxious [FISA] court."

Given that the Bush-Cheney Administration finds the FISA court to be "obnoxious" -- and that they could get rid of it with one bomb -- exactly how likely do *you* think it is that they'll take affirmative steps to prevent that from happening?

And some people might go a step further and ask, exactly how likely do you think it is that they'd be able to resist the urge to do it themselves?

All the incentives are there. What has stopped them? What is stopping them? What can, or will stop them? Remember, we're talking about people who aren't shy about wanting more power (or taking it whenever they can), who lead a movement with plenty of people who think that we *need* another attack to show liberals how dangerous terrorism is. If you think they're doing everything they *can* to *prevent* another terrorist attack, I'm not sure you can still claim membership in the reality-based community...

Posted by: Chris on September 7, 2007 at 9:19 AM | PERMALINK

I can't believe anything that comes from this tangle of snakes that is Bushco.

Posted by: magisterludi on September 7, 2007 at 9:42 AM | PERMALINK

Excellent rhetorical jujitsu but we don't know if the Pakistan to Stuttgart communication passed through the USA. The NSA has a huge system of antenae intercepting communications around the world (no one in the USA objects people over here in Europe have some problems with it). Also, given the first intercept a FISA warrant would be no problem.ù

My guess is that neither FISA nor Bush created any problems for the investigation.

Posted by: Robert Waldmann on September 7, 2007 at 9:48 AM | PERMALINK

So, they had recordings of the Pakistani handler encouraging these guys to speed up their car-bomb plot and yet our national security establishment thought it would be too difficult to get a warrant? Jesus. Just take five minutes to fill out the form and, based on this sort of evidence, you could get the most liberal judge on earth to sign off in a heart beat.

There was no real urgency in amending FISA this year; those claims were part of a Rove-esque political power play intended to roll Congress into enacting unrelated policy objectives. Please rinse and repeat.

Posted by: cramer on September 7, 2007 at 9:53 AM | PERMALINK

Really screwed up a movie to this - No frantic car chases northbound from Stuttgart to Frankfort - No last second shoot out

Sounds like another US orchestrated PR arrest, ala our government pushing the Brits and even blowing the surveillance by the Italians.

Reminds me of the days of J Edgar showing up for the photo ops of a bank robber pickup.

And, no, Kevin, I'm sure that the intercepts never halted. Since when have the Shrubites let "technicalities and/or the Constitution" stand in their way?

Posted by: thethirdPaul on September 7, 2007 at 11:25 AM | PERMALINK

"These intercepts are pretty clearly a result of the NSA surveillance program we've heard so much about"

And then you proceed to build an entire post around that premise. You should change your name to Kaus.

Kevin, this is, bar none, the most absurd thing you have ever written as a journalist. Absolutely nothing is "clear" about the mechanics of any NSA program. Or if the "U.S. intelligence intercept of suspicious communications" involved a fixed landline, or even the NSA. Or most absurdly, what "crimps" were placed in the investigation by U.S. law.


Posted by: HeavyJ on September 7, 2007 at 11:53 AM | PERMALINK

There's never been a requirement for a warrant for intercepting foreign-to-foreign communications.

This case is irrelevant to FISA issues.

Posted by: Jeffrey Davis on September 7, 2007 at 12:13 PM | PERMALINK

Oh, Kevin, you can't possibly imagine they obediently stopped intercepting those calls, can you? Posted by: gyrfalcon

I must concur. I don't think the NSA gives a flying fuck about the messier aspects of democracy like checks and balances and due process.

Posted by: JeffII on September 7, 2007 at 12:25 PM | PERMALINK

from the LAT piece: "This year, U.S. intelligence agents intercepted a key communication in which militant handlers in Pakistan asked for an update on the plot and pushed the suspects [in Germany] to move faster"

Damnit, Kevin, the real story here is WhyTF isn't our beloved ally in the GWOT, Pakistan, going after the militant handlers and their training camps that are *located in Pakistan*, and WhatTF is the GWB admin doing about it?

They got the actionable intel. How about those incompetent f-ers in the WH do something with it, and stop acting like Mush's bitch?

Oh, I forgot -- no oil in Pakistan, just the people who are responsible for 9/11 and are planning the next one. And GWB's gotta keep them around in order to justify the continuing rape of Iraq and the future rape of Iran. And toward that end, he is more than willing to risk another 9/11. That is much more despicable than dickering about FISA.

GWB: "I truly am not that concerned about [OBL]."

Posted by: Disputo on September 7, 2007 at 1:11 PM | PERMALINK

"[T]errorist wannabes," huh? 'Cause God knows there aren't any terrorists to be worried about.

Posted by: Brian on September 7, 2007 at 3:02 PM | PERMALINK

"Cause God knows"

Then, why does Shrub think She told him differently?

Posted by: thethirdPaul on September 7, 2007 at 3:42 PM | PERMALINK


Posted by: mhr on September 7, 2007 at 3:48 PM | PERMALINK

Even if it's true that the FISA court said you need warrants for overseas intercepts... FISA warrants can be applied for retroactively within 72 hours, at the discretion of the Justice Department. Unless our intelligence operations are so disorganized that they can't communicate with Washington within three days, it's ridiculous to say that this was a real obstacle.

Posted by: Hob on September 7, 2007 at 4:14 PM | PERMALINK

As Jeffrey Davis mentions, monitoring foreign-foreign communications is what NSA was set up to do, and FISA has nothing to do with this. Kevin, you should withdraw this post as it's built on a mistaken assumption. You could almost make a post on your confusion on this issue --- speculating that the leak was intended to confuse people into thinking, "These intercepts are pretty clearly a result of the NSA surveillance program we've heard so much about", when they aren't.

To answer Disputo: "Damnit, Kevin, the real story here is WhyTF isn't our beloved ally in the GWOT, Pakistan, going after the militant handlers and their training camps" --- a bird in the hand is worth two in the bush. It may be better to know who these guys are and who they are communicating with. It's a judgment that none of us are in a position to have enough information to make (though I don't trust this administration to make the right call on something intelligence-related).

Posted by: dm on September 7, 2007 at 4:15 PM | PERMALINK

To everyone who is saying that foreign-to-foreign wiretaps are not covered by FISA, you haven't been paying attention.
The general consensus (although everything is hush-hush) is that a FISA court judge ruled that the wording of the law requires a warrant for foreign-to-foreign wiretaps that pass through a communications hub. Because that was clearly not the intention of FISA, that could easily be fixed. Everyone in Congress would have agreed to close this "loophole" that would require warrants for otherwise surveillable communications. The problem was, rather than seeking only that unobjectionable fix, Bush pushed for a broad expansion well beyond this technical point.
Nonetheless, I do think it is a stretch for Kevin to say that the German intercept here was "clearly" subject to the NSA program. Although I'm sure the leak of the infor is designed to make everyone think that, we certainly don't know if that is the case.

Posted by: anonymous on September 7, 2007 at 4:26 PM | PERMALINK

It may be better to know who these guys are and who they are communicating with.

Well, given that their existence is now public, I'm guessing there is little more that can be learned by monitoring them, and my point still stands.

Posted by: Disputo on September 7, 2007 at 8:46 PM | PERMALINK

The FISA court is a pretty flimsy constitutional protection, but it is better than nothing. Presumably, if Bushco was listening in on Nancy Pelosi's private communication then a judge would stop that. If they tried to listen to any of us on made up pretenses the judge would probably allow that.

Posted by: JohnK on September 8, 2007 at 11:23 PM | PERMALINK



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