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NSA Intercepts Used To Obtain Conviction for Terrorist Plot to Blow Up Transatlantic Flights:
Here is a story about national security surveillance that probably won't get the attention it deserves:
  The three men convicted in the United Kingdom on Monday of a plot to bomb several transcontinental flights were prosecuted in part using crucial e-mail correspondences intercepted by the U.S. National Security Agency, according to Britain's Channel 4.
  The e-mails, several of which have been reprinted by the BBC and other publications, contained coded messages, according to prosecutors. They were intercepted by the NSA in 2006 but were not included in evidence introduced in a first trial against the three last year.
  That trial resulted in the men being convicted of conspiracy to commit murder; but a jury was not convinced that they had planned to use soft drink bottles filled with liquid explosives to blow up seven trans-Atlantic planes — the charge for which they were convicted this week in a second trial.
  According to Channel 4, the NSA had previously shown the e-mails to their British counterparts, but refused to let prosecutors use the evidence in the first trial, because the agency didn't want to tip off an alleged accomplice in Pakistan named Rashid Rauf that his e-mail was being monitored. U.S. intelligence agents said Rauf was Al Qaeda's director of European operations at the time and that the bomb plot was being directed by Rauf and others in Pakistan.
  The NSA later changed its mind and allowed the evidence to be introduced in the second trial, which was crucial to getting the jury conviction. Channel 4 suggests the NSA's change of mind occurred after Rauf, a Briton born of Pakistani parents, was said to be killed last year by a U.S. drone missile that struck a house where he was staying in northern Pakistan.
Fascinating. The BBC has the text of the intercepts here.
ruuffles (mail) (www):
Here's another story that probably won't get the coverage it deserves:

Dick Cheney, the former US Vice President, nearly destroyed Britain's efforts to bring the airline bomb plotters to justice, police and intelligence experts said today.

By ordering the early arrest of Rashid Rauf, the bombers' link man in Pakistan, Washington forced British police to detain the suspects in the UK before all the evidence had been gathered, it was claimed.

article
9.8.2009 8:21pm
Dave N (mail):
ruufles,

It might not get much attention because, at its heart, is speculation and gossip.

The Royal United Services Institute, mentioned in the article you provided, is a British think tank--and while it is quite impressive, I have no idea how it "knew" that Dick Cheney had operational authority to a) send ANYONE to Pakistan or b) demand Pakistan arrest anyone in particular.

This article does not explain any of this and without explanation, and with nothing more than mere speculation, the article will get the coverage it deserves.
9.8.2009 8:34pm
Bart (mail):
ruuffles (mail) (www):

Here's another story that probably won't get the coverage it deserves: Dick Cheney, the former US Vice President, nearly destroyed Britain's efforts to bring the airline bomb plotters to justice, police and intelligence experts said today. By ordering the early arrest of Rashid Rauf, the bombers' link man in Pakistan, Washington forced British police to detain the suspects in the UK before all the evidence had been gathered, it was claimed.

This is a prime argument why wars should not be treated as criminal justice matters. The Brits should have captured their al Qaeda as POWs as we captured Rauf. It is insane to allow Rauf to roam free simply to gather criminal evidence against the British al Qaeda.
9.8.2009 8:35pm
Andrew J. Lazarus (mail):
It is insane to allow Rauf to roam free simply to gather criminal evidence against the British al Qaeda.
How about to learn the identities of more of Rauf's associates?

It might also be worth mentioning that the surveillance was conducted with a warrant, tending to undercut the need to repeal the Fourth Amendment.
9.8.2009 8:50pm
einhverfr (mail) (www):
After heavily considering the Washington Post's coverage of FISC oversight of warrantless wiretapping, I concluded that it didn't provide any 4th Amendment issues if handled according to court instructions. Of course, maybe it wasn't but that is another issue.

The rule held by the court is that domestic warrants could not be based on warrantless wiretaps-- that the material could be shared with foreign governments, etc. but could not be used for domestic law enforcement operations.

So this doesn't surprise me.
9.8.2009 8:56pm
OrinKerr:
It might also be worth mentioning that the surveillance was conducted with a warrant, tending to undercut the need to repeal the Fourth Amendment.

I don't recall anyone arguing that there is a need to repeal the Fourth Amendment But even so, I don't think anyone is arguing that a warrant was required in this case: these suspects had no Fourth Amendment rights under United States v. Verdugo-Urquidez,
9.8.2009 9:02pm
Angus:
Yeah, I don't know of any liberals that would have a problem with this. It involved aliens communicating from the U.K. to and from Pakistan. Not a 4th amendment issue at all since all the people and traffic are foreign.
9.8.2009 9:41pm
byomtov (mail):
So what's the story here?

"Perfectly legal NSA intercept helps UK convict terrorists."

I agree that's interesting. Should the emphasis be on "perfectly legal," or on "NSA intercept?" I suspect there's some disagreement about that.
9.8.2009 9:58pm
Geoff (mail):
Doesn't anyone want to comment on the fact that we apparently have it entirely on the prosecutor's say so that things like 'printers' are actually bombs. I assume (hope) that there is some evidence to believe that all this electronic chatter is actually related to bombing and such, rather than just nonsense. Especially since, as I understand it, there are no chemicals that could go from being harmless in soda bottles to being bomb-like when mixed together. At least none that wouldn't blow up in your face when you tried to mix them, probably not badly enough to damage a plane. Not to say that I don't believe British Intelligence or the NSA...
9.8.2009 10:07pm
OrinKerr:
byomtov,

In my experience, interest in NSA surveillance is not limited to whether that surveillance is lawful.
9.8.2009 10:12pm
byomtov (mail):
Orin,

I agree.

I'm just trying to figure out what the most important part of the story is.
9.8.2009 10:18pm
Oren:

Especially since, as I understand it, there are no chemicals that could go from being harmless in soda bottles to being bomb-like when mixed together.

If the intent was to blow up the plane, it doesn't matter that it wouldn't have worked. You can't claim innocence from attempted murder because your gun is broken.
9.8.2009 10:27pm
JBC:
9.8.2009 10:33pm
jccamp (mail):
I think Bart makes a very valid point, that terrorism cases cannot be handled like any garden variety criminal investigation, only maybe just bigger. Allowing people to walk around free, knowing they plan crashing multiple passenger jets into civilian areas is, frankly, insane. It is exactly this scenario that argues for some middle ground between traditional criminal court cases, which deal with crimes which have already occurred, and the (sometimes mythical) arbitrary detentions that are the bete noire of so many.

Complaining that the Pakistani government arrested a known and dangerous terrorist, because said arrest impeded the GB search for evidence for court presentation - not a search for intelligence, mind you - strikes me as somewhat...provincial. The missile through the window response strikes me as far more appropriate.
9.8.2009 10:34pm
The Drill SGT:

Yeah, I don't know of any liberals that would have a problem with this. It involved aliens communicating from the U.K. to and from Pakistan. Not a 4th amendment issue at all since all the people and traffic are foreign.


The dirty little secret in the SIGINT world is that NSA does intercepts of Brits and GCHQ intercepts the Yanks.

NSA and GCHQ then pass pointers, if not actionable intercepts to the home country, but since neither actually intercepted its own citizens, they run afoul of fewer laws.
9.8.2009 10:34pm
Tatil:
It matters to me as the claim that the method works forces every plane passenger to put out a ziplock bag full of gels and perfumes from their carry-ons slowing the lines at the airport considerably, not to mention preventing many from traveling with deodorants.

Of course, TSA insists on viewing every laptop and camcorder, but not any cameras, external hard disks or other computer peripherals. I guess once somebody comes up with a rule, it stays put whether it makes sense or not, so maybe the feasibility of such a bomb is irrelevant as well.
9.8.2009 10:43pm
Tatil:
These intercepts read as if they are done through "Google Translate". I hope the originals are also written in this broken way or the competence of these translators would worry me.
9.8.2009 10:48pm
OrinKerr:
byomtov,

Ah, got it. I think the important lesson is, the system worked. There must have been a lot of cylinders firing for this to come together, and it did. Bravo. (It's not really a point about the law, more just that the NSA apparently was able to do this successfully.)
9.8.2009 10:56pm
Randy R. (mail):
What's even more strange is that no one had to be tortured in order to obtain these convictions.
9.8.2009 11:34pm
Soronel Haetir (mail):
I do find it interesting that NSA was willing to allow any intercepted material to become public.
9.8.2009 11:55pm
Allan (mail):
My understanding was that these guys were acquitted in their first trial. In the US, there would be no further trials, double jeopardy being what it is.

So, is the fifth amendment a good thing, or just good for 'mericans?
9.8.2009 11:58pm
Ricardo (mail):
Allowing people to walk around free, knowing they plan crashing multiple passenger jets into civilian areas is, frankly, insane. It is exactly this scenario that argues for some middle ground...

But this scenario did not, in fact, occur. The Brits were arrested sooner than prosecutors would have wished but were successfully convicted of all terrorism-related charges following the introduction into evidence of the NSA intercepts.

I wonder how the successful use of the criminal justice system to prosecute terrorists becomes evidence of its inadequacy.

For the suggestion above that Britain should have apprehended the suspects as POWs, you would almost think that British law and the country's ancient legal traditions would have something to say on the treatment of British citizens detained on British soil, wouldn't you? And the real proposal cannot be to treat them literally as POWs since POWs have the right to freely write letters to the outside world.
9.9.2009 12:08am
Dave N (mail):
Allan,

Since the British aren't bound by the Fifth Amendment (or any other one for that matter), do you realize how dumb your comment sounds?

That said, Great Britain also has a "Double Jeopardy" provision--so your understanding is wrong. Actually, there was hung jury, which allows re-trial in both countries.
9.9.2009 12:34am
John Thacker (mail):
The dirty little secret in the SIGINT world is that NSA does intercepts of Brits and GCHQ intercepts the Yanks


The dirty little secret about the SIGINT world is that so much of what gets posted as secrets are wrong.
9.9.2009 12:38am
gab:
What strikes me as weird is that they knew they were being watched but were going to go ahead with the plot anyway. How did they think they were going to pull it off?
9.9.2009 1:11am
James Gibson (mail):
We have both Binary explosives and we have Hypergolic fuels. Hypergolic fuels are chemicals that self-ignite when mixed but when separate can be harmless. And, as anyone knows, a flash fire on an airplane can be as dangerous as an explosion.
9.9.2009 1:29am
John Moore (www):
It matters to me as the claim that the method works forces every plane passenger to put out a ziplock bag full of gels and perfumes from their carry-ons slowing the lines at the airport considerably, not to mention preventing many from traveling with deodorants.


Two female Chechen suicide bombers took out two Russian aloft, at the same time, a few years back. Practical liquid explosives, binary or not, are real.

Ramzi Yousef, notorious Al Qaeda terrorist, tested a liquid (nitroglycerin) bomb on a trans-Pacific airliner in 1995 (!!), killing one passenger. He planned to blow up a number of aircraft but the plot was disrupted after a fire in the bomb lab.
9.9.2009 1:37am
Brian G (mail) (www):
They should sue Dick Cheney for violating their rights and consolidate the case with the one of the criminal John Ashcroft. I think any illegally obtained evidence such as that obtained in this case should be at a minimum suspect, but as a matter of course should be inadmissible. Because those Defendants' constitutional rights were violated, America should have not provided the prejudicial evidence that would convict them. They should appeal and their convictions should be summarily overturned. Enough of the Bush/Cheney scaremongering. it is time to put it in the past once and for all.
9.9.2009 1:55am
Muskrat (mail):
I love the line "the agency didn't want to tip off an alleged accomplice in Pakistan named Rashid Rauf that his e-mail was being monitored."

If there is any Pakistani militant who doesn't think his every phone call, e-mail, fax, and Tweet are being fed into the great data sieve, he's dumber than a bag of hammers.

And not those good Craftsman hammers, either. Cheap Eastern European hammers.
9.9.2009 7:00am
Dittybopper:

It might also be worth mentioning that the surveillance was conducted with a warrant, tending to undercut the need to repeal the Fourth Amendment.


It should also be worth mentioning that it has always been legal to intercept the communications of foreign entities, even if one or both ends of the communication is physically within the United States, without a warrant.

If you as an intercept operator knew that the entity you were intercepting was not a "US Person", then you didn't need a warrant. Period.

What FISA did was make it very bad ju-ju to intercept the communications of a "US Person" without a warrant, bad enough that the assumption was that if the entity being intercepted was located physically in the United States, then you were to assume they were a "US Person" until proven otherwise.

Even if these e-mails did go through a US server, a warrant wouldn't have been required even under the 'old' FISA rules, because neither end involved a "US Person".

Let me also say as a former SIGINT weenie, reporting on this whole subject from the very beginning has been uniformly bad. The old adage of "Don't believe everything you read" goes doubly true for this.
9.9.2009 8:02am
jccamp (mail):
"I wonder how the successful use of the criminal justice system to prosecute terrorists becomes evidence of its inadequacy."

Actually, only 3 of 8 defendants were actually convicted. 5 were acquitted in part or completely. British authorities now claim that something like 200 people were under active surveillance, pre-arrest.

So, the justice system was successful only in the sense that a jury was able to convict 3 defendants out of 8 charged, out of 200 originally being investigated. Of course, please note the original plot involved blowing up at least 7 airplanes in flight, plus "A second phase of the plan included attacks on Canary Wharf skyscrapers, the Greenwich foot tunnel underneath the Thames, nuclear power stations, oil refineries and gas terminals."

Hard to imagine these 3 fellows being able to do all this themselves, especially since whoever was on board the seven airplanes would, of necessity, be self-limited in terms of further terrorist activities.

Successful? The plots were stopped, so yes, very successful in that sense. Successful in apprehending those who would do such things? I don't think so.

And the risk of allowing these people to walk around unfettered while they were planning such terrorism, so that evidence for a court presentation could be collected is just nuts. Suppose some group of the conspirators succeeded in a terrorist strike because they slipped surveillance. Was this an acceptable risk?
9.9.2009 8:49am
JohnKT (mail):
That the NSA allowed their decrypted intercepts to be submitted as evidence arouses my curiosity.

In the Rosenberg trial, Alan Belmont, an FBI honcho, argued against using the VENONA intercepts on the grounds that they were inadmissable as evidence, being hearsay. They could be used as evidence nevertheless but as expert testimony. But that would allow the defense to use their own experts to repudiate the NSA decrypts.

Yes, I know the received opinion, is that the NSA needed to keep the decrypts secret because they were so important. The NSA did want to keep the decrypts secret, true, but the FBI argued poor evidence, and used NSA's desire as a supplementary reason.

So, are decrypts hearsay or more solid evidence in English law than here? Or were they used as expert testimony?
9.9.2009 8:59am
Daniel San:
jccamp: And the risk of allowing these people to walk around unfettered while they were planning such terrorism, so that evidence for a court presentation could be collected is just nuts.

The risk is high, but the risk of missing addition conspirators is high as well. If the preferred approach was killing the conspirators rather than trying them, we still might have watched for a time in order to gain some key information. During WWII, we took some terrible risks (and paid terrible costs) by avoiding acting on information gained from breaking the Enigma code. The delay seems to have been fruitful.
9.9.2009 9:14am
Joe T. Guest:
Do I understand correctly that people are actually arguing that Cheney should have let a half dozen or so airliners get blown out of the sky, in order to let our British friends more effectively roll up a network that was planning a range of London attacks? It seems to me that is a bogus argument and the Ultra comparison is particularly bogus.

First of all, the success of the entire war effort in WWII may have hinged on Churchill's keeping the Ultra secret, so tens (if not hundreds) of millions of lives hung in the balance; thus a thousand or so Britons may have died in Coventry to keep the secret - even assuming the British had accurate foreknowledge of the raid, an assertion that is in dispute. Whereas here, we could have potentially sacrificed 3,000 or so people, in order to make additional arrests?

Arguing that Cheney was grievously wrong - assuming Cheney did everything asserted - boils down to the math that 100 felony arrests is more important than 3,000 innocent lives. I've heard the fatuous old saw that it's better for 10 guilty men to go free than one innocent man be convicted, but since when is it better for ten innocent men to be killed so that one guilty man might be arrested?
9.9.2009 9:36am
Anderson (mail):
Allowing people to walk around free, knowing they plan crashing multiple passenger jets into civilian areas is, frankly, insane.

Uh, no. You conduct surveillance, find out their plans, learn the names of their associates and bankrollers, and move in when the picture's reasonably complete, or when necessary to foil the plan. As opposed to pulling an Ashcroft and grabbing the guys based on the first shred of evidence, and then failing to get a conviction.

People with jittery nerves can find many useful occupations besides counterterrorism.
9.9.2009 9:38am
Joe T. Guest:
Anderson, could you articulate a rule for when an investigation ought to culminate in arrests? You seem pretty confident that there is some clear point that reasonable people would agree on, at which an investigation should terminate and arrests start.

I'm also curious what gives you so much faith that the terrorists wouldn't have evaded detection and pulled off an attack despite the electronic surveillance. You seem to think Ashcroft and the FBI for instance are really incompetent at investigations, why would they be so much better at waiting until the last moment, then making arrests under somewhat hotter, live operational conditions?
9.9.2009 9:57am
martinned (mail) (www):

Anderson, could you articulate a rule for when an investigation ought to culminate in arrests?

Isn't that what a Grand Jury is for?
9.9.2009 10:09am
MatrixArchitect:

Uh, no. You conduct surveillance, find out their plans, learn the names of their associates and bankrollers, and move in when the picture's reasonably complete, or when necessary to foil the plan. As opposed to pulling an Ashcroft and grabbing the guys based on the first shred of evidence, and then failing to get a conviction.

People with jittery nerves can find many useful occupations besides counterterrorism.


There are risks inherent in that scheme as well. The surveillance is coming in at a specific point in time and may not have picked up other essential parts of the plan. Waiting and watching also runs the risk of a plan B type scenario that can be executed when or if surveillance is detected. Its a tough game, counterterrorism.
9.9.2009 10:22am
Joe T. Guest:

Isn't that what a Grand Jury is for?


Actually, I'm reasonably certain that's what executive branch / ministerial discretion is for. But I could be wrong about that, my notions of the law are rather quaint.
9.9.2009 10:32am
Anderson (mail):
I'm also curious what gives you so much faith that the terrorists wouldn't have evaded detection and pulled off an attack despite the electronic surveillance.

I didn't limit it to electronic surveillance, which would indeed be a huge mistake.

As for any bright line, each case is different, so there's presumably no better answer than balancing safety vs. sufficient evidence to catch and convict as many bad guys as possible. That tension is indeed inherent in the business, and is doubtless the source of many lively discussions b/t field agents and HQ.
9.9.2009 10:51am
dangerous lack of something something:
The investigation should culminate in arrests when the plotters set the date for the attack. That is the traditional point when you roll up the network - because once the date is set, the cells can act in a manner where communication is no longer needed - and usually all the cells involved are notified about the date (meaning that you can now identify the number/identity of all the existing cells)

This assumes the targets are set, and the attack vectors are established as well. If you move in too soon because you have the OMGTerrorist jitters, and leave cells untouched, and potentially leave them free to carry out the attack in some remaining capacity. That is why. You pull in the nets too soon, and fish continue to swim.
9.9.2009 11:01am
SeaDrive:

Let me also say as a former SIGINT weenie, reporting on this whole subject from the very beginning has been uniformly bad.


Truth to tell, reporting on most any factual detail on any subject is unreliable. Police departments routinely misidentify firearms, which information is usually engraved on weapons.
9.9.2009 11:19am
ArthurKirkland:
A fascinating, remarkable story, perhaps most noteworthy for the strong likelihood that those surveilled and detained had some genuine link to terrorism. Jolly good show!

Although it is hard to believe the Brits expect anyone to buy a 'Cheney and Bush got frightened and made a rash, counterproductive decision with political overtones' angle.
9.9.2009 2:00pm
Ted Reed (mail):
Brings to mind this satire, which actually gets at the more serious issue of comparative privacy risks: "ACLU Changes Its Priorities After Private Citizen Posts Awkward Photos on Internet" Parody
9.9.2009 2:41pm
einhverfr (mail) (www):
jccamp:

Allowing people to walk around free, knowing they plan crashing multiple passenger jets into civilian areas is, frankly, insane. It is exactly this scenario that argues for some middle ground between traditional criminal court cases, which deal with crimes which have already occurred, and the (sometimes mythical) arbitrary detentions that are the bete noire of so many.


I disagree, actually. As heinous as big terrorist attacks are, they are not a major individual risk.

In September of 2001, 20% more people died in the US in car accidents than in terrorist attacks. Yet we don't argue that it is insane not to arrest every speeding driver without bail (an action which would clearly save more lives than giving up Contitutional rights to fight terrorism would).
9.10.2009 5:12pm
Soronel Haetir (mail):

Truth to tell, reporting on most any factual detail on any subject is unreliable. Police departments routinely misidentify firearms, which information is
usually engraved on weapons.


I thought this practice was intentional as a hold-back strategy. Keep some information private in order to discover info possessed only by the actual perpetrator.
9.12.2009 9:13am

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