Real-World Insights into Terrorism and Wiretapping

When it was first reported that the Bush Administration was engaging in warrantless surveillance, the President offered two seemingly contradictory defenses. He claimed at once that the warrantless surveillance involved only a few US citizens, "people with known links to al Qaeda and related terrorist organizations," and only numbers actually captured from Al-Qaeda documents, laptops and cell phones. But at the same time, he also said that there were so many numbers to wiretap that FISA could not accommodate all of the requests. Another argument some supporters made was that a number's presence in Al-Qaeda's database did not constitute probable cause; it might just be the number to a felafel stand.

As a mere Enlightened Layperson with no inside knowledge, I cannot possibly know the scale of numbers captured from Al-Qaeda, or what the FISA court considers probable cause. But a few educated guesses seem reasonable. First of all, only numbers inside the US would need a warrant to wiretap. Second, telephone numbers have international codes, so it should be easy to determine which captured numbers are or are not in the United States. Third, out of all telephone numbers captured from Al-Qaeda, persumably only a small percentage are US numbers. Finally, although Al-Qaeda operatives may, indeed, keep the numbers of their favorite felafel stands, it seems unlikely that a laptop captured from a terrorist in Afghanistan or Pakistan would have numbers of US felafel stands. (A terrorist arrested in the US might have such numbers, of course).

But I can now offer more than just educated guesses. Glenn Greenwald offered this link, which provides most revealing information of our pre-9/11 intelligence on Al-Qaeda, including that is highly suggestive about the scale.

The NSA apparently traced Osama Bin Laden's phone, broke his codes, and monitored his calls since the early 1990's (when he was in Sudan). In November, 1996, an operative in Virginia, using a British credit card, purchased a satellite phone which was sent to Bin Laden (then in Afghanistan) by way of Khalid al-Fawwaz, his unofficial press secretary in London. US intelligence was aware of this purchase from the start and and monitored Bin Laden's satellite phone until he stopped using it in August, 1998. In 2002, billing records for this phone were made public. They are highly revealing as to where the most Al-Qaeda contacts were.

Out of 1,100 calls, the destination of 100 is undetermined. Of the remaining 1,000 calls, the largest number, between 238 and 260, were to Britain. These calls went to 27 phone numbers (hardly an unmanageable number a FISA-like court). Approximately half (143) went to Khalid al-Fawwaz, and many went to a colleage of al-Fawwaz. Most of the others were to pay phones near al-Fawwaz or his associates. Yemen received the next largest number, with 221. Yemen had a major communications hub to Al-Qaeda operations the world over. Sudan, Bin Laden's old host, was next, with 131 calls. Next was Iran with 106. (Iran is believed to have assisted terrorists in transit in and out of Afghanistan). Other destinations receiving a relatively high numbers of calls included Azerbaijan (67), Pakistan (59), Saudi Arabia (57) Kenya (scene of one of the US embassy bombings, at least 56), Egypt (number unknown), and an unknown ship in the Indian Ocean (13). A total of six calls went to the United States. None at all went to Iraq.

Several things here are significant. One is that clearly there were Al-Qaeda operatives in the United States from 1996 through 1998, including the one who purchased the satellite phone. Second, the scale seems to have been small. Bin Laden made a total of six calls to the United States in nearly two years (possibly all to the same person), hardly an unmanageable number for FISA. Of course calls from Bin Laden himself are only the tip of the iceberg. Calls from all other Al-Qaeda sources, including numbers captured in Afghanistan, will presumbably add up to something much larger. Still, Bin Laden's contacts with the US were a small portion of his total, about six out of a thousand.

Assuming a similar ratio, 6 US phone numbers for every 1000 numbers captured from Al-Qaeda documents, laptops and cell phones, this would mean that if 10,000 numbers were captured, only 60 would be US numbers. If 100,000 numbers were captured, 600 would be US numbers. Sixty warrants all at once might seem like a large number, but presumably captured numbers trickled in in batches smaller than 10,000 at a time. Sixty warrants over a month or two does not seem like an unmanageable number. Admitted, requests for 600 warrants to wiretap US phone numbers might be overwhelming, but it seems most unlikely that our forces have captured anything close to 100,000 telephone numbers from Al-Qaeda sources.

Would the presence of a US number in a captured Al-Qaeda document, laptop or cell phone be sufficient probable cause to issue a FISA warrant? That information is not public. We do know, however, that during the Millenium Crisis when Ahmed Ressam was caught crossing the Canadian border with a bomb in his trunk, the FBI was able to get warrants to wiretap to "hundreds" of conversations. These warrants including a co-conspirator linked to Ressam because his phone number was on a business card in Ressam's wallet. It seems likely, then, that any US number in possession of a terrorist in Afghanistan or Pakistan, would be enough for a warrant.

My (admittedly speculative) opinion, therefore, is that out of the total telephone numbers captured from Al-Qaeda members, it is most unlikely that there are so many US numbers as to overwhelm the FISA court (or that such requests would be denied). Non-US numbers do not require a warrant to surveil.

On a final note, the link cited has a great deal of other interesting and potentially explosive information that I hope to discuss in the near future.