As noted a couple of days ago at Reason 24/7—our great newsfeed (follow it on Twitter)—government supporters of the recently revealed NSA "PRISM" program say that the metadata-gathering operation is instrumental to stopping terrorist acts on American soil.
Rep. Mike Rogers (R-Mich.), the head of the House Intelligence Committee, has trotted out a specific example of this:
Rogers said that the phone and internet surveillance programs has been instrumental in stopping terrorist attacks, citing the 2009 terror plot by Najibullah Zazi, the Colorado resident who was arrested in Sept. 2009 after plotting to bomb the New York subway system….
"I can tell you, in the Zazi case in New York, it's exactly the program that was used," Rogers said, later adding, "I think the Zazi case is so important, because that's one you can specifically show that this was the key piece that allowed us to stop a bombing in the New York Subway system."
Is that accurate? All signs point to no.
As Buzzfeed's Ben Smith reports,
Public — though not widely publicized — details of the Zazi plot cast into doubt the notion that a data mining program had much to do with the investigation. Zazi traveled to Pakistan in 2008 to train with al Qaeda. He was charged in 2009 with leading two other men in a plot to detonate suicide bombs in the New York subways.
The path to his capture, according to the public records, began in April 2009, when British authorities arrested several suspected terrorists. According to a 2010 ruling from Britain's Special Immigration Appeals Commission, one of the suspects' computers included email correspondence with an address in Pakistan….
Later that year, according to a transcript of Zazi's July, 2011 trial, Zazi emailed his al Qaeda handler in Pakistan for help with the recipe for his bombs. He sent his inquiry to the same email address: firstname.lastname@example.org.
An FBI agent, Eric Jurgenson, testified, "I was notified, I should say. My office was in receipt of several e-mail messages, e-mail communications." Those emails — from Zazi to the same email@example.com — "led to the investigation," he testified.
The details of terror investigations are not always laid out this clearly in public; but they appear to belie the notion, advanced by anonymous government officials Friday, that sweeping access to millions of email accounts played an important roil in foiling the subway attack. Instead, this is the sort investigation made possible by ordinary warrants under the Foreign Intelligence Surveillance Act; authorities appear simply to have been monitoring the Pakistani email account that had been linked to terrorists earlier that year.
A 2009 report by NPR on the case similarly highlighted the role that regular police work played in tracking and capturing Zazi. Specifically, the story notes that the FBI began tracking Zazi seriously after Pakistani intelligence officials tipped them off. One wonders if the same elected officials upset at the damage done by the simple revelation of PRISM's existence will swear out warrants against NPR, which titled its account, "Terrorism Case Shows Range Of Investigators' Tools."
Recall that in the wake of The PATRIOT Act's passage, its supporters claimed that it was vitally necessary to combat terrorism. In 2011, for instance, the Heritage Foundation published a list of 39 terrorist plots the PATRIOT Act had helped to foil. To call the list—which includes such failed attempts as Richard Reid's shoe bomb and 2009's underwear bomber, both of whom were subdued at high altitude by civilian passengers on commerical airlines—anything other than a joke is to indulge in the soft bigotry of low expectations (remember that Heritage is the outfit that recently released a widely panned—by other conservatives!—"study" of immigration's costs). Also in 2011, the federal government itself claimed that 400 people had been charged and half of them convicted specifically due to the PATRIOT Act.
The reality is a little bit different, as the ACLU spelled out in a report well worth reading:
A list obtained by the Justice Department defines only 361 cases defined as terrorism investigations from September 11, 2001 to September 2004. 31 of the entries on the list were blacked out. Only 39 of these individuals were convicted of crimes related to terrorism. The median sentence for these crimes was 11 months. This figure indicates that the crime that the government equated with terrorism was not serious. A study conducted by TRAC at Syracuse University notes that "despite the three-and-a-half-fold increase in terrorism convictions, the number who were sentenced to five years or more in prison has not grown at all from pre-9/11 levels." The convictions were more commonly for charges of passport violations, fraud, false statements, and conspiracy. Moreover, the median prison time for a serious offense, such as providing material support to a terrorist organization was only 4 months.
Get ready for more and more defenses of the new normal—NSA's PRISM and whatever else comes out over the next few days and weeks—that are just as weak as the argument that the PATRIOT Act was absolutely crucial to keeping terrorism at bay.