A/T War on Terror
Use of illegal wiretap surveillance undermines terror prosecutions
Lichtblau, Eric, and Risen, James, New York Times, December 28th, 2005
WASHINGTON, Dec. 27 - Defense lawyers in some of the country's biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.
The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out.
The expected legal challenges, in cases from Florida, Ohio, Oregon and Virginia, add another dimension to the growing controversy over the agency's domestic surveillance program and could jeopardize some of the Bush administration's most important courtroom victories in terror cases, legal analysts say.
The question of whether the N.S.A. program was used in criminal prosecutions and whether it improperly influenced them raises "fascinating and difficult questions," said Carl W. Tobias, a law professor at the University of Richmond who has studied terrorism prosecutions.
"It seems to me that it would be relevant to a person's case," Professor Tobias said. "I would expect the government to say that it is highly sensitive material, but we have legal mechanisms to balance the national security needs with the rights of defendants. I think judges are very conscientious about trying to sort out these issues and balance civil liberties and national security."
While some civil rights advocates, legal experts and members of Congress have said President Bush did not have authority to order eavesdropping by the security agency without warrants, the White House and the Justice Department continued on Tuesday to defend the legality and propriety of the program.
Trent Duffy, a spokesman for the White House, declined to comment in Crawford, Tex., when asked about a report in The New York Times that the security agency had tapped into some of the country's main telephone arteries to conduct broader data-mining operations in the search for terrorists.
But Mr. Duffy said: "This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches."
He added: "The president believes that he has the authority - and he does - under the Constitution to do this limited program. The Congress has been briefed. It is fully in line with the Constitution and also protecting American civil liberties."
Disclosure of the N.S.A. program has already caused ripples in the legal system, with a judge resigning in protest from the Foreign Intelligence Surveillance Court last week. The surveillance court, established by Congress in 1978 to grant warrants in terrorism and espionage cases, wants a briefing from the Bush administration on why it bypassed the court and ordered eavesdropping without warrants.
At the same time, defense lawyers in terrorism cases around the country say they are preparing letters and legal briefs to challenge the N.S.A. program on behalf of their clients, many of them American citizens, and to find out more about how it might have been used. They acknowledge legal hurdles, including the fact that many defendants waived some rights to appeal as part of their plea deals.
Government officials, in defending the value of the security agency's surveillance program, have said in interviews that it played a critical part in at least two cases that led to the convictions of Qaeda associates, Iyman Faris of Ohio, who admitted taking part in a failed plot to bring down the Brooklyn Bridge, and Mohammed Junaid Babar of Queens, who was implicated in a failed plot to bomb British targets.
David B. Smith, a lawyer for Mr. Faris, said he planned to file a motion in part to determine whether information about the surveillance program should have been turned over. Lawyers said they were also considering a civil case against the president, saying that Mr. Faris was the target of an illegal wiretap ordered by Mr. Bush. A lawyer for Mr. Babar declined to comment.
Government officials with knowledge of the program have not ruled out the possibility that it was used in other criminal cases, and a number of defense lawyers said in interviews that circumstantial evidence had led them to question whether the security agency identified their clients through wiretaps.
The first challenge is likely to come in Florida, where lawyers for two men charged with Jose Padilla, who is jailed as an enemy combatant, plan to file a motion as early as next week to determine if the N.S.A. program was used to gain incriminating information on their clients and their suspected ties to Al Qaeda. Kenneth Swartz, one of the lawyers in the case, said, "I think they absolutely have an obligation to tell us" whether the agency was wiretapping the defendants. In a Virginia case, Edward B. MacMahon Jr., a lawyer for Ali al-Timimi, a Muslim scholar in Alexandria who is serving a life sentence for inciting his young followers to wage war against the United States overseas, said the government's explanation of how it came to suspect Mr. Timimi of terrorism ties never added up in his view.
F.B.I. agents were at Mr. Timimi's door days after the Sept. 11 attacks to question him about possible links to terrorism, Mr. MacMahon said, yet the government did not obtain a warrant through the foreign intelligence court to eavesdrop on his conversations until many months later.
Mr. MacMahon said he was so skeptical about the timing of the investigation that he questioned the Justice Department about whether some sort of unknown wiretap operation had been conducted on the scholar or his young followers, who were tied to what prosecutors described as a "Virginia jihad" cell.
"They told me there was no other surveillance," Mr. MacMahon said. "But the fact is that the case against a lot of these guys just came out of nowhere because they were really nobodies, and it makes you wonder whether they were being tapped."
John Zwerling, a lawyer for one of Mr. Timimi's followers, Seifullah Chapman, who is serving a 65-year sentence in federal prison in the case, said he and lawyers for two of the other defendants in the case planned to send a letter to the Justice Department to find out if N.S.A. wiretaps were used against their clients. If the Justice Department declines to give an answer, Mr. Zwerling said, they plan to file a motion in court demanding access to the information.
"We want to know, Did this N.S.A. program make its way into our case, and how was it used?" Mr. Zwerling said. "It may be a difficult trail for us in court, but we're going to go down it as far as we can."
Defense lawyers in several other high-profile terrorism prosecutions, including the so-called Portland Seven and Lackawanna Six cases, said they were also planning to file legal challenges or were reviewing their options.
"Given what information has come out, with the president admitting that they had avoided the courts, then the question becomes, do you try to learn whether something like that happened in this case?" said Patrick Brown, a Buffalo lawyer in the Lackawanna case. "I would have to talk to my client about whether that's a road we want to go down."
Gerry Spence, who is the lead counsel representing Brandon Mayfield, a Portland lawyer who was arrested in error last year in connection with the Madrid bombings and is now suing the government, said of the security agency program: "We are going to look into that. The calmest word I can use to describe how I feel about this is that I am aghast."
Because the program was so highly classified, government officials say, prosecutors who handled terrorism cases apparently did not know of the program's existence. Any information they received, the officials say, was probably carefully shielded to protect the true source.
But defense lawyers say they are eager to find out whether prosecutors - intentionally or not - misled the courts about the origins of their investigations and whether the government may have held on to N.S.A. wiretaps that could point to their clients' innocence.
Stanley Cohen, a New York lawyer who represented Patrice Lumumba Ford in the Portland Seven case, said many defendants would face significant obstacles in mounting legal challenges to force the government to reveal whether material obtained through the security agency's program was used in their cases.
"You really could have standing problems" for many of the defendants, Mr. Cohen said.
But some Justice Department prosecutors, speaking on condition of anonymity because the program remains classified, said they were concerned that the agency's wiretaps without warrants could create problems for the department in terrorism prosecutions both past and future.
"If I'm a defense attorney," one prosecutor said, "the first thing I'm going to say in court is, 'This was an illegal wiretap.' "
The NSA surveillance program is ineffective in monitoring terrorists
Yglesias, Matthew, reporter for The American Prospect, published at http://www.tpmcafe.com, "Doing the Math," December 26th, 2005
Legal issues aside, is having the NSA do some kind of wide-net surveillance for the purposes of counterterrorist data mining a good idea? Arguably, yes, but it's very hard to know without knowing more about the program. But here's a thought. Suppose I have an algorithm that's supposed to listen to a certain amount of recorded conversation and evaluate whether or not the speaker is a terrorist. It's a pretty damn good program, but thanks to the inherent difficulty of the task, the challenges of voice-recognition and dealing with foreign languages, etc., it has a ten percent error rate. That's to say -- if the program says you're a terrorist, nine times out of ten you are, in fact, a terrorist. That's a pretty decent program. So what happens if we put it into use on a widespread basis? Well, it sort of depends:
Dec 26, 2005 -- 12:24:30 PM EST
Suppose we had a group of 1,000 people we were interested in monitoring and 900 of them are terrorists. The program will correctly itentify 810 terrorists as terrorists. 10 terrorists will evade its clutches. Out of the 100 non-terrorists, 90 will be correctly identified as innocent, and 10 will be wrongly labeled as terrorists. That seems pretty useful.
But say we have a group of 1,000 suspects and only 100 of them are terrorists. A ten percent shot that a given person is a terrorists doesn't reach the "probable cause" standard, but seeing as how thousands of lives could easily be on the line, maybe we want to relax the burden of proof and run the 1,000 through the program. Well, we'll catch 90 terrorists out of the 100, which is good. But out of the 900 non-terrorists, 90 innocent people are going to get labeled terrorists. In other words, out of the 180 people the program will say are terrorists, we can expect half to actually be innocent. Thus, even though the algorithm only has a very small 10 percent error rate, the overall surveillance program makes a lot of mistakes.
If we expand the program things get worse. Say we want to monitor a group of 10,000 people that includes 200 terrorists. We're going to catch 180 actual terrorists plus a whopping 980 innocent people. Thus, out of our total pool of 1,160 "terrorists" only 15.5 percent will genuinely be terrorists.
Depending on what we do with the output of the program, this could be very problematic. If, for example, the CIA picks up all the purported terrorists and subjects them to "coercive interrogations" we're going to be torturing a bunch of innocent people. Worse, coercive techniques are going to lead to a lot of innocent people "confessing" and probably "ratting out" various other innocent people. This is bad on its own terms, but it's also going to further pollute our basic data pool with all kinds of wrong information. Lather, rinse, repeat and all of a sudden you're looking at a witch hunt rather than a serious counterterrorism program.
And that's all assuming the program comes in with a very low 10 percent error rate. Even something as bad as a 25 percent error rate might look like an appealing tool. And it could be, in some ways, but the number of innocent people swept up by an algorithm like that could be absolutely enormous, especially if the program is being deployed in a very wide-net manner as sort of seems to be the case.
Of course, if you do something less drastic than torturing the people labeled by the program, this might not be so bad. Or it might be pretty bad after all. It sort of winds up depending on what, exactly, you do with the information. It also depends, as the math here shows, on how many terrorists there actually are and how wide a net the program casts. We don't know any of that, which makes it impossible to say what we're talking about. But this sort of thing is the reason any big surveillance program needs fairly robust oversight. Not only do members of congress need to be able to monitor it, but they're going to need to be able to consult relevant experts -- computer people, counterterrorism people, etc. -- who could say something meaningful about how well it works. And they're going to need to know what the government is doing with the data it mines, since even a very reliable data mining program can produce a lot of errors depending on how big the needle-haystack ratio is. My sense with regard to terrorism is that we're looking for a quite small number of needles in a pretty large haystack of "Muslim people with anti-American views" or whatever, which gives me a lot of concern.
Lichtblau, Eric, and Risen, James, New York Times, December 28th, 2005
WASHINGTON, Dec. 27 - Defense lawyers in some of the country's biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.
The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out.
The expected legal challenges, in cases from Florida, Ohio, Oregon and Virginia, add another dimension to the growing controversy over the agency's domestic surveillance program and could jeopardize some of the Bush administration's most important courtroom victories in terror cases, legal analysts say.
The question of whether the N.S.A. program was used in criminal prosecutions and whether it improperly influenced them raises "fascinating and difficult questions," said Carl W. Tobias, a law professor at the University of Richmond who has studied terrorism prosecutions.
"It seems to me that it would be relevant to a person's case," Professor Tobias said. "I would expect the government to say that it is highly sensitive material, but we have legal mechanisms to balance the national security needs with the rights of defendants. I think judges are very conscientious about trying to sort out these issues and balance civil liberties and national security."
While some civil rights advocates, legal experts and members of Congress have said President Bush did not have authority to order eavesdropping by the security agency without warrants, the White House and the Justice Department continued on Tuesday to defend the legality and propriety of the program.
Trent Duffy, a spokesman for the White House, declined to comment in Crawford, Tex., when asked about a report in The New York Times that the security agency had tapped into some of the country's main telephone arteries to conduct broader data-mining operations in the search for terrorists.
But Mr. Duffy said: "This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches."
He added: "The president believes that he has the authority - and he does - under the Constitution to do this limited program. The Congress has been briefed. It is fully in line with the Constitution and also protecting American civil liberties."
Disclosure of the N.S.A. program has already caused ripples in the legal system, with a judge resigning in protest from the Foreign Intelligence Surveillance Court last week. The surveillance court, established by Congress in 1978 to grant warrants in terrorism and espionage cases, wants a briefing from the Bush administration on why it bypassed the court and ordered eavesdropping without warrants.
At the same time, defense lawyers in terrorism cases around the country say they are preparing letters and legal briefs to challenge the N.S.A. program on behalf of their clients, many of them American citizens, and to find out more about how it might have been used. They acknowledge legal hurdles, including the fact that many defendants waived some rights to appeal as part of their plea deals.
Government officials, in defending the value of the security agency's surveillance program, have said in interviews that it played a critical part in at least two cases that led to the convictions of Qaeda associates, Iyman Faris of Ohio, who admitted taking part in a failed plot to bring down the Brooklyn Bridge, and Mohammed Junaid Babar of Queens, who was implicated in a failed plot to bomb British targets.
David B. Smith, a lawyer for Mr. Faris, said he planned to file a motion in part to determine whether information about the surveillance program should have been turned over. Lawyers said they were also considering a civil case against the president, saying that Mr. Faris was the target of an illegal wiretap ordered by Mr. Bush. A lawyer for Mr. Babar declined to comment.
Government officials with knowledge of the program have not ruled out the possibility that it was used in other criminal cases, and a number of defense lawyers said in interviews that circumstantial evidence had led them to question whether the security agency identified their clients through wiretaps.
The first challenge is likely to come in Florida, where lawyers for two men charged with Jose Padilla, who is jailed as an enemy combatant, plan to file a motion as early as next week to determine if the N.S.A. program was used to gain incriminating information on their clients and their suspected ties to Al Qaeda. Kenneth Swartz, one of the lawyers in the case, said, "I think they absolutely have an obligation to tell us" whether the agency was wiretapping the defendants. In a Virginia case, Edward B. MacMahon Jr., a lawyer for Ali al-Timimi, a Muslim scholar in Alexandria who is serving a life sentence for inciting his young followers to wage war against the United States overseas, said the government's explanation of how it came to suspect Mr. Timimi of terrorism ties never added up in his view.
F.B.I. agents were at Mr. Timimi's door days after the Sept. 11 attacks to question him about possible links to terrorism, Mr. MacMahon said, yet the government did not obtain a warrant through the foreign intelligence court to eavesdrop on his conversations until many months later.
Mr. MacMahon said he was so skeptical about the timing of the investigation that he questioned the Justice Department about whether some sort of unknown wiretap operation had been conducted on the scholar or his young followers, who were tied to what prosecutors described as a "Virginia jihad" cell.
"They told me there was no other surveillance," Mr. MacMahon said. "But the fact is that the case against a lot of these guys just came out of nowhere because they were really nobodies, and it makes you wonder whether they were being tapped."
John Zwerling, a lawyer for one of Mr. Timimi's followers, Seifullah Chapman, who is serving a 65-year sentence in federal prison in the case, said he and lawyers for two of the other defendants in the case planned to send a letter to the Justice Department to find out if N.S.A. wiretaps were used against their clients. If the Justice Department declines to give an answer, Mr. Zwerling said, they plan to file a motion in court demanding access to the information.
"We want to know, Did this N.S.A. program make its way into our case, and how was it used?" Mr. Zwerling said. "It may be a difficult trail for us in court, but we're going to go down it as far as we can."
Defense lawyers in several other high-profile terrorism prosecutions, including the so-called Portland Seven and Lackawanna Six cases, said they were also planning to file legal challenges or were reviewing their options.
"Given what information has come out, with the president admitting that they had avoided the courts, then the question becomes, do you try to learn whether something like that happened in this case?" said Patrick Brown, a Buffalo lawyer in the Lackawanna case. "I would have to talk to my client about whether that's a road we want to go down."
Gerry Spence, who is the lead counsel representing Brandon Mayfield, a Portland lawyer who was arrested in error last year in connection with the Madrid bombings and is now suing the government, said of the security agency program: "We are going to look into that. The calmest word I can use to describe how I feel about this is that I am aghast."
Because the program was so highly classified, government officials say, prosecutors who handled terrorism cases apparently did not know of the program's existence. Any information they received, the officials say, was probably carefully shielded to protect the true source.
But defense lawyers say they are eager to find out whether prosecutors - intentionally or not - misled the courts about the origins of their investigations and whether the government may have held on to N.S.A. wiretaps that could point to their clients' innocence.
Stanley Cohen, a New York lawyer who represented Patrice Lumumba Ford in the Portland Seven case, said many defendants would face significant obstacles in mounting legal challenges to force the government to reveal whether material obtained through the security agency's program was used in their cases.
"You really could have standing problems" for many of the defendants, Mr. Cohen said.
But some Justice Department prosecutors, speaking on condition of anonymity because the program remains classified, said they were concerned that the agency's wiretaps without warrants could create problems for the department in terrorism prosecutions both past and future.
"If I'm a defense attorney," one prosecutor said, "the first thing I'm going to say in court is, 'This was an illegal wiretap.' "
The NSA surveillance program is ineffective in monitoring terrorists
Yglesias, Matthew, reporter for The American Prospect, published at http://www.tpmcafe.com, "Doing the Math," December 26th, 2005
Legal issues aside, is having the NSA do some kind of wide-net surveillance for the purposes of counterterrorist data mining a good idea? Arguably, yes, but it's very hard to know without knowing more about the program. But here's a thought. Suppose I have an algorithm that's supposed to listen to a certain amount of recorded conversation and evaluate whether or not the speaker is a terrorist. It's a pretty damn good program, but thanks to the inherent difficulty of the task, the challenges of voice-recognition and dealing with foreign languages, etc., it has a ten percent error rate. That's to say -- if the program says you're a terrorist, nine times out of ten you are, in fact, a terrorist. That's a pretty decent program. So what happens if we put it into use on a widespread basis? Well, it sort of depends:
Dec 26, 2005 -- 12:24:30 PM EST
Suppose we had a group of 1,000 people we were interested in monitoring and 900 of them are terrorists. The program will correctly itentify 810 terrorists as terrorists. 10 terrorists will evade its clutches. Out of the 100 non-terrorists, 90 will be correctly identified as innocent, and 10 will be wrongly labeled as terrorists. That seems pretty useful.
But say we have a group of 1,000 suspects and only 100 of them are terrorists. A ten percent shot that a given person is a terrorists doesn't reach the "probable cause" standard, but seeing as how thousands of lives could easily be on the line, maybe we want to relax the burden of proof and run the 1,000 through the program. Well, we'll catch 90 terrorists out of the 100, which is good. But out of the 900 non-terrorists, 90 innocent people are going to get labeled terrorists. In other words, out of the 180 people the program will say are terrorists, we can expect half to actually be innocent. Thus, even though the algorithm only has a very small 10 percent error rate, the overall surveillance program makes a lot of mistakes.
If we expand the program things get worse. Say we want to monitor a group of 10,000 people that includes 200 terrorists. We're going to catch 180 actual terrorists plus a whopping 980 innocent people. Thus, out of our total pool of 1,160 "terrorists" only 15.5 percent will genuinely be terrorists.
Depending on what we do with the output of the program, this could be very problematic. If, for example, the CIA picks up all the purported terrorists and subjects them to "coercive interrogations" we're going to be torturing a bunch of innocent people. Worse, coercive techniques are going to lead to a lot of innocent people "confessing" and probably "ratting out" various other innocent people. This is bad on its own terms, but it's also going to further pollute our basic data pool with all kinds of wrong information. Lather, rinse, repeat and all of a sudden you're looking at a witch hunt rather than a serious counterterrorism program.
And that's all assuming the program comes in with a very low 10 percent error rate. Even something as bad as a 25 percent error rate might look like an appealing tool. And it could be, in some ways, but the number of innocent people swept up by an algorithm like that could be absolutely enormous, especially if the program is being deployed in a very wide-net manner as sort of seems to be the case.
Of course, if you do something less drastic than torturing the people labeled by the program, this might not be so bad. Or it might be pretty bad after all. It sort of winds up depending on what, exactly, you do with the information. It also depends, as the math here shows, on how many terrorists there actually are and how wide a net the program casts. We don't know any of that, which makes it impossible to say what we're talking about. But this sort of thing is the reason any big surveillance program needs fairly robust oversight. Not only do members of congress need to be able to monitor it, but they're going to need to be able to consult relevant experts -- computer people, counterterrorism people, etc. -- who could say something meaningful about how well it works. And they're going to need to know what the government is doing with the data it mines, since even a very reliable data mining program can produce a lot of errors depending on how big the needle-haystack ratio is. My sense with regard to terrorism is that we're looking for a quite small number of needles in a pretty large haystack of "Muslim people with anti-American views" or whatever, which gives me a lot of concern.
posted by Dan at 1:45 PM
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