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Investigators could have decided it simply wasn’t worth pursuing, perhaps because [the terrorist group Lashkar-i-Taiba, with whom Headley/Gilani consorted] was seen primarily as a threat to India at that time.
Others believe investigators learned Gilani was still an informant for the U.S. government so they deferred to the existing operation. But federal officials speaking on background say that to their knowledge Gilani was no longer an informant at that point.
Another scenario: investigators may have opened a case and put him under surveillance. If he was an informant, his U.S. handlers could also have tracked his travels and intercepted his communications if they suspected wrongdoing and opened an investigation, officials said.
The New York Times reported in 2010 that Headley's Moroccan wife had two meetings in the U.S. embassy in Islamabad before the Mumbai attacks. The wife recounted the experience this way:
“I told them, he’s either a terrorist, or he’s working for you,” she recalled saying to American officials at the United States Embassy in Islamabad. “Indirectly, they told me to get lost.”
Another 2010 Pro Publica report credits British authorities with tipping off the FBI to Headley's plans to attack Jyllands-Posten. The Brits had been watching various Pakistani militants who called Headley "David the American" and contacted their U.S. counterparts, who eventually arrested Headley in the States.
Is the sort of NSA snooping that's in the news really instrumental to keeping us safe? "The instances where this has produced good—has disrupted plots, prevented terrorist attacks—is all classified," Feinstein said on This Week even as she and her House counterpart publicly discussed two such cases.
It's possible, of course, that the NSA and other intelligence sources scrubbed all possible references to top secret programs before newspaper articles were written and court testimony prepared. But given the relatively straightforward narratives behind the capture of Zazi and Headley—narratives in which "old tools" such as searching computers of suspects in custody and sharing information among agences play such clear roles—it seems highly unlikely.
At any rate, this much seems certain: In a world in which the Director of National Intelligence James Clapper has pretty transparently lied before a Senate committee and even The New York Times says that President Obama "has lost all credibility" on the surveillance issue, the public is right to be highly skeptical of any claims about the absolute necessity of increasing state power in the name of stopping terrorism.