Since the inception of the Patriot Act, and amplified since the Snowden leak, the oft-repeated justification for intelligence services running mass surveillance programs is that it helps fight terrorism or, more hyperbolically, “would have prevented 9/11”, an idea extolled by such luminaries as former FBI head Robert Mueller and Senator Dianne Feinstein, people in a position to know such a thing. Turns out, they were wrong, because the DEA had been monitoring international phone calls en masse since as early as 1992, and it wasn’t enough to prevent the attacks on the World trade Center.
It was revealed back in January that the DEA had its own database of phone call metadata of practically all calls from inside the US to foreign countries. After digging through the data, Brad Heath of USA Today discovered that the records date back to 1992, meaning that the federal government did have access to the intelligence that Mueller, Feinstein, et al, bemoaned was hampering their ability to tackle terrorism.
The now-discontinued operation, carried out by the DEA’s intelligence arm, was the government’s first known effort to gather data on Americans in bulk, sweeping up records of telephone calls made by millions of U.S. citizens regardless of whether they were suspected of a crime. It was a model for the massive phone surveillance system the NSA launched to identify terrorists after the Sept. 11 attacks. That dragnet drew sharp criticism that the government had intruded too deeply into Americans’ privacy after former NSA contractor Edward Snowden leaked it to the news media two years ago.
There’s no hiding behind the idea that the DEA didn’t share that information with the NSA, as pointed out by an award-winning report by Eric Lichtblau, James Risen, and Scott Shane for the New York Times:
In the drug-trafficking operation, the N.S.A. has been helping the Drug Enforcement Administration in collecting the phone records showing patterns of calls between the United States, Latin America and other drug-producing regions. The program dates to the 1990s, according to several government officials, but it appears to have expanded in recent years.
Officials say the government has not listened to the communications, but has instead used phone numbers and e-mail addresses to analyze links between people in the United States and overseas. Senior Justice Department officials in the Bush and Clinton administrations signed off on the operation, which uses broad administrative subpoenas but does not require court approval to demand the records.
The report also revealed that telecoms companies handed over the data via a simple administrative subpoena, which bypasses the courts, and were scared off from appealing by the Department of Justice:
The DEA obtained those records using administrative subpoenas that allow the agency to collect records “relevant or material to” federal drug investigations. Officials acknowledged it was an expansive interpretation of that authority but one that was not likely to be challenged because unlike search warrants, DEA subpoenas do not require a judge’s approval. “We knew we were stretching the definition,” a former official involved in the process said.
Officials said a few telephone companies were reluctant to provide so much information, but none challenged the subpoenas in court. Those that hesitated received letters from the Justice Department urging them to comply.
After Sprint executives expressed reservations in 1998, for example, Warren, the head of the department’s drug section, responded with a letter telling the company that “the initiative has been determined to be legally appropriate” and that turning over the call data was “appropriate and required by law.” The letter said the data would be used by authorities “to focus scarce investigative resources by means of sophisticated pattern and link analysis.”
The data was then stored in a secret database, concealing all knowledge of it from judges and defence lawyers:
To keep the program secret, the DEA sought not to use the information as evidence in criminal prosecutions or in its justification for warrants or other searches. Instead, its Special Operations Division passed the data to field agents as tips to help them find new targets or focus existing investigations, a process approved by Justice Department lawyers. Many of those tips were classified because the DEA phone searches drew on other intelligence data.
That practice sparked a furor when the Reuters news agency reported in 2013 that the DEA trained agents to conceal the sources of those tips from judges and defense lawyers. Reuters said the tips were based on wiretaps, foreign intelligence and a DEA database of telephone calls gathered through routine subpoenas and search warrants.
As a result, “the government short-circuited any debate about the legality and wisdom of putting the call records of millions of innocent people in the hands of the DEA,” American Civil Liberties Union lawyer Patrick Toomey said.
A cynic could think that those in power are using the emotive issue of the 9/11 attacks as unimpeachable rationale for violating the privacy of the people they claim to protect. As the US enters the period during which the renewal of the draconian Patriot Act (section 215, specifically) is debated, it is vital that the ineffectiveness of these privacy-violating policies are publicised.