Exposing NSA's fallibility

The clock is ticking on PRISM, the U.S.’s vast international surveillance programme run by its National Security Agency (NSA), which collects bulk phone records from anywhere. On May 7, a U.S Appeals Court ruled that the collection of bulk phone records of Americans is illegal. Shortly afterward, the U. S. Lower House of Representatives voted to end the program in its current form.

Upon being disclosed in 2013 by former Booz Allen Hamilton employee Edward J. Snowden, details of the once-secret programme shocked the nation. Two top officials in President Barack Obama’s administration lied to the Congress about its existence, and went unpunished. Others claimed the programme had detected the Mumbai terrorist David Coleman Headley before the Mumbai attacks on November 26, 2008–a claim now seen as false.

On April 21, investigative reporter Sebastian Rotella of ProPublica and the U.S. TV programme Frontline, aired “American Terrorist”, a documentary that countered official U.S. government claims, while arguing that the surveillance programme contributed nothing to efforts to capture of Headley. The false claims about the Mumbai attacks discredit the value of the bulk-collection programme, however it is doubtful that it will be abolished completely. Instead, it may be restricted to requiring the government to request personal records from phone companies with a court order.

Rotella, who had investigated Headley in 2009 after the Mumbai attacks that killed 166, said he wondered why the NSA programme’s value was only cited after Snowden’s disclosures in 2013. No one involved with the Headley investigation had ever heard of it before.

With additional files released by Snowden, Rotella established that the NSA played no useful role with Headley until after the attack. At which point, some NSA phone records contributed to a British investigation. British investigators learned that a man named David was calling Al-Qaeda terrorists in Derby, UK from a Chicago payphone. It appeared that Headley’s next plan was to attack the Danish newspaper Jyllands-Posten that had published satirical cartoons of Prophet Mohammed.

The Federal Bureau of Investigation’s (FBI) Chicago office and the U.S. Customs Service identified Headley from a flight manifest. Their on-the-ground surveillance in collaboration with the British would eventually lead to his arrest. Headley confessed to plotting the Mumbai attacks and according to the FBI, contributed useful knowledge about the Lashkar-e-Toiba (LeT) terrorist cell in Pakistan that had directed the attacks in Mumbai. He is presently serving 35 years in a U.S. prison.

In an online interview with Gateway House, Rotella said he felt the story indicated that bulk data collection of phone records might be useful in analysing an attack after the fact, but as one of his sources said, it was like finding a needle in a haystack beforehand.

Rotella’s report also highlighted the information India had before the terrorists struck Mumbai. It was, he felt, substantial but bulk phone surveillance played no part. The Indians didn’t know about Headley before the attack, he explained.

However, the investigative reporter noted that India “must absolutely share the blame”. “India had primary responsibility for preventing an attack on its soil, and we shouldn’t forget that in the analysis. There was a breakdown in the counter terrorism system,” he added.

According to Rotella, “there is no question that the NSA and the U.S. Central Intelligence Agency developed intelligence about the impending plot from other sources and that U.S. officials had warned Indian authorities a number of times in 2008 that the LeT was plotting to attack Mumbai”. The U.S. warnings described potential targets in South Mumbai including the Taj Mahal Palace hotel and other sites frequented by westerners and tourists. At one point, the U.S. warned about the possibility of “an attack by sea”.

Mumbai is a long way from American minds these days. The priority for all nations is the vulnerability of their own homeland when picking up terrorist leads. Later, they are more open to sharing. The Frontline report demonstrated that Indian authorities and the British had penetrated LeT’s communications network, but no one acted—a huge failure noted by Rotella.

As a story about how U.S. officials, desperate to prove Americans were safer because of bulk collection, simply fabricated a tale about Headley, the Frontline report is definitive. It even quotes a White House task force official stating there was no real value to bulk collection in this regard.

But Rotella choose to conclude his reporting by noting that more egregious than the exposure of American lies and the failure of counterterrorism systems, is that there has been no prosecution of the jailed terrorist plotters. Among the LeT ringleaders who are running their network from a Pakistan jail, Zakiur Rehman Lakhvi was even released in April. In light of these facts, Headley’s story is still relevant because “justice has not been done,” Rotella noted.

Bob Dowling is Editorial Advisor to Gateway House.

This blog was exclusively written for Gateway House: Indian Council on Global Relations. You can read more exclusive content here.

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