Robert Davey

Amid all the furor about documents that were made public by Edward Snowden, there’s been virtually no discussion about whether or not all the secrets he revealed were true. Let’s see if we can rectify that mistake.

Everything starts with Alex Jimenez and Byron Fouty.
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Jimenez, 25, and Fouty, 19, were casualties of the Iraq war whose capture was used by U.S. government spin doctors to illustrate their claim that a federal law regulating electronic surveillance put the United States at a disadvantage in the war on terror—a claim that turned out to be highly questionable at best. That claim points forward to statements that appeared in documents released by Edward Snowden, the former National Security Agency contractor who’s been accused of treason for leaking classified information, and it points backward, too, to misleading statements by a government whistle-blower named Thomas Tamm, who leaked apparently erroneous information to a reporter from The New York Times in 2004-2005.
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It’s possible the ramifications stretch all the way back to 9/11 itself.
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What’s certain is that the Bush administration used the soldiers’ capture as an opportunity to protect telecommunications companies from lawsuits. It’s also certain that the big lie about electronic surveillance resurfaces in the Snowden documents.

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THE BACKSTORY
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At around 4:45 a.m. on May 12, 2007, the convoy Jimenez and Fouty were traveling in¹ was attacked by insurgents, in an area south of Baghdad nicknamed the Triangle of Death. Four U.S. troops and one Iraqi were killed, and three Americans were captured. One was found dead shortly afterward; the bodies of Jimenez and Fouty were recovered on July 8, 2008, only after an Iraqi detained by U.S. troops led them to the graves. By that time, the soldiers had played a significant role in the Bush administration’s campaign to persuade Congress and the public that a crisis in intelligence collection had created an urgent need to modernize the 1978 Foreign Intelligence Surveillance Act (FISA).
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According to Bush administration officials, the search for the soldiers had been hampered by a legal requirement to comply with FISA’s provisions because the insurgents’ phone calls might travel through electronic switches in the U.S. “Normally, warrants wouldn’t be needed to eavesdrop on foreigners in Iraq or elsewhere,” the Associated Press reported on August 3, 2007. “However…the Bush administration believes the government must obtain legal approval to listen in on foreign suspects when their conversations cross into the extensive U.S. communications network.”
After the soldiers were captured, there was a nearly ten-hour delay while, on May 15, government lawyers in Washington processed a FISA application and got authority from the attorney general to continue with the wiretapping. It’s not clear how U.S. forces learned the identities and cellphone numbers of the captors so soon, but the delay in getting wiretap authorization bolstered Bush officials’ case for modernizing FISA, which they said had something to do with the gradual replacement of satellites by fiber-optic cables.
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“Technological changes have brought within FISA’s scope communications that we believe the 1978 Congress did not intend to be covered,” Director of National Intelligence Mike McConnell said at a May 1 hearing of the Senate Intelligence Committee. He never explained precisely why the law now obliged intelligence officials to get warrants for foreign-to-foreign calls.
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WHAT THE BUSH ADMINISTRATION GOT

The Bush administration’s insistence that FISA needed to be modernized produced some positive political fallout. It wrested public opinion away from the unrelenting violence in Iraq and onto the war on terror, forever linking the war in Iraq to the 9/11 attacks. It also enabled Bush to keep congressional Democrats on the defensive. In fact, the previous September, The New York Times had reported that the Bush team was seeking to “shift the election-year focus from a debate about him and the unpopular war to one about terrorism in general.”
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News of the 14-month-long search for the two captured soldiers came out in periodic Army press releases: Jimenez’s weapon was recovered, then his identity card and wallet. Unfortunately, the search, which involved some 4,000 soldiers, had its own casualties; two additional soldiers died.
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Meanwhile, a law was passed that gave the Bush administration the fix it had requested (but not the immunity that it had requested for telecommunications companies from lawsuits that were being filed against them in the wake of revelations that they had cooperated with the NSA’s warrantless wiretapping program). The law, the Protect America Act, was due to expire in only six months, however, and so the administration began to push for the changes introduced by the PAA to be made permanent in a new law. The administration also pushed again for Congress to give telecommunications companies immunity against lawsuits.
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Cracks appeared quickly in the administration’s story. First, a bunch of experts challenged the notion that a foreign-to-foreign phone call travels thousands of miles away from the shortest route between caller and recipient just to pass through telecommunications switches inside the U.S. “I struggle to imagine why that would happen,” said Breck Blalock, who in May 2007 was chief of staff and associate bureau chief of the international bureau of the Federal Communications Commission. “It would seem much cheaper for traffic to go directly between carriers in that country, rather than transit the U.S. and go back. Within the data we collect from carriers, there’s no indication of that.”
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If calls did travel so far out of the way, they would use transatlantic fiber-optic cables, which, as Blalock suggested, would cost money. An officer on a ship that repairs transatlantic fiber-optic cables told this reporter, “Routing data across many countries for a domestic transmission only makes sense for a telecom rerouting traffic because of a bottleneck in [its] domestic hardware. Since bandwidth is at a premium, I can’t see how it makes financial sense to lease space on another telecom’s wire to cross an ocean and back again. [Even if a telecom uses its own wire] they’re effectively reducing their capacity if they have to handle the data across oceans and back needlessly.”
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A specialist who built a telecommunications network in Iraq after the invasion said he could not see an “in-country” call going farther than a Kuwait switching station. Asked if he’d ever known of calls within Iraq being routed to the U.S. and back, Daniel Sudnick, another expert, who oversaw the creation of Iraq’s post-invasion telecommunications industry in 2003 and 2004, said, “No. I don’t know why anybody would want to do that.”
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BOLSTERING THE CASE

More doubts about the Bush administration’s wiretapping problems come from a military intelligence regulation, Army Regulation 381-10, which is cited in an article written for military lawyers as a guide to how FISA works. The article in The Army Lawyer presents FISA as one tool among several available to military intelligence officers. But the article also sets the limits of FISA’s jurisdiction in the world of civilian investigations. The regulation lists many ranks with the authority to initiate electronic surveillance on a non-U.S. person outside the U.S. Since Jimenez’s attackers were all non-U.S. persons (i.e., neither U.S. citizens nor U.S. permanent-resident aliens) AR 381-10, which is dated May 3, 2007, would have been adequate to authorize surveillance, without needing FISA.
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Apart from the search operation on the ground in Iraq, U.S. forces also had aerial-surveillance assets in the form of electronically equipped aircraft and drones, capable, as Defense Secretary Robert M. Gates explains in his memoir Duty,² of picking up insurgents’ cellphone calls. Executive Order 12333 allows the U.S. to collect information from overhead reconnaissance, as long as the surveillance is not directed at a specific U.S. person.
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The drama created by the Bush administration to get the Democratic-controlled Congress to pass the PAA did not let up until July 2008, when Congress passed the FISA Amendments Act (FAA), which finally gave the administration legal immunity for telecoms. But for all the pressure on Congress to pass those laws, electronic surveillance does not seem to have played much of a role in the search for Jimenez, Fouty and their captors.
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THE SNOWDEN FACTOR

In June 2013, National Security Agency contractor Edward Snowden began releasing classified NSA documents to a few select reporters. The first article published by The Guardian that reported on Snowden’s leaks carried details of a classified FISA court order to Verizon. The Guardian reported that the order required Verizon to give the NSA “information on all telephone calls in its systems.” One piece of information requested was the International Mobile Subscriber Identity number, which is unique to cellular networks. However, calls to Verizon established that Verizon Business Network Services, the company targeted by the order, only dealt with Verizon’s landline business; the order apparently did not apply to the calling records of its many millions of cellphone customers.
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The second Guardian story based on Snowden’s leaks described a PowerPoint presentation about Prism, a surveillance program purportedly directed at all the principal American internet companies, including Google, Yahoo, Facebook, and others. The Prism document also has something to say about foreign-to-foreign calls. “It took a FISA court order to collect on foreigners overseas who were communicating with other foreigners overseas simply because the government was collecting off a wire in the United States,” Glenn Greenwald and Ewen MacAskill wrote.
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This seems to be a recycling of the claims made in 2007, when Bush officials told reporters they needed to go through FISA in order to wiretap Jimenez’s and Fouty’s captors. The Army Lawyer article cites another military regulation that states, “For example, the interception of communications that originate and terminate outside the United States can be conducted from within the United States and still fall under this part”—meaning, the surveillance did not need a FISA warrant.
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That regulation has been in force since 1982. A two-volume guide to the history of FISA investigations and prosecutions, published in 2012, notes that the regulation, in its 1982 language, was still in force in August 2007, at the time the PAA was passed, and an NSA spokesman emailed a link to it to this reporter last summer. The regulation’s language has apparently not changed in 33 years. Yet Greenwald and MacAskill wrote, based on Snowden’s leaked documents, that this is the kind of communication that, prior to the FAA, had indeed needed a FISA warrant. Both military regulations are designed to work with FISA so that there are no instances in which the regulations allow warrantless surveillance, but FISA requires a warrant. In fact, the introduction to the Army Lawyer article positions the Reagan-era regulation as an important supporting pillar for FISA: The regulation “implements” FISA, the article notes. Louis Chiarella, coauthor of the article, said he knew of no instance where the military regulations clashed with FISA.
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Snowden also released a draft of an NSA inspector general’s report on the President’s Surveillance Program, but the surveillance, ordered by Bush shortly after 9/11, is of a kind (of targets outside the U.S.) that’s always been allowed. The NSA’s mission has always been “foreign communications,” defined as having at least one end outside the U.S., as then director Lieutenant General Lew Allen testified in Congress in 1975.
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The story about warrantless wiretapping by the NSA, which was published by The New York Times on December 16, 2005, relied on anonymous sources. One of those sources later risked arrest and indictment by the Bush Justice Department when, in late 2008, he told his story to Newsweek investigative reporter Michael Isikoff. The December 22, 2008, issue of the news weekly carried a photo of Thomas Tamm on its cover, and inside, a long story on Tamm by Isikoff.
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Tamm told Isikoff that as an official at the Justice Department, he had become concerned that a stream of applications for warrants to wiretap terrorism suspects were being diverted away from the usual path through the Foreign Intelligence Surveillance Court (FISC). Tamm suspected that the warrants were skirting FISA’s requirements, allowing surveillance that violated the Fourth Amendment’s guarantee of protection against unreasonable search and seizure. He worried over what he had discovered for weeks, until finally, one lunch hour, he called the Washington bureau of The New York Times.
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Eric Lichtblau and James Risen, authors of the 2005 New York Times story on NSA warrantless wiretapping, have not confirmed that Tamm was one of their sources. But Tamm’s story is undeniably compelling. In an interview with this reporter, however, Tamm acknowledged that he had told Lichtblau that judges on the FISC were becoming concerned about foreign-to-foreign calls that passed through switches inside the U.S. Some of the judges worried about whether intercepting those calls ought to require FISA warrants.
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Tamm said, “I remember Lichtblau saying…he’d heard the court was concerned whether they had jurisdiction on data pinging off the U.S. with the electronic switches—coming to the U.S. from Europe for a millisecond and bouncing back. I was able to confirm to him the court was concerned about this and had asked for legal [guidance] from the department. I did know this was a problem. The FISA court was struggling with its jurisdiction on this matter.”
But when asked what language in FISA could ever have been interpreted as needing a warrant for a foreign-to-foreign call, Tamm said he was unable to say.
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On December 24, 2005, The New York Times ran another story by Lichtblau and Risen. This one reported that more and more foreign-to-foreign calls were being routed through U.S. switches, and it said that judges on the FISC were concerned that they ought to be granting warrants to eavesdrop on those calls. Did Tamm misinform, or at least confuse, the Times about the extent of the “foreign-to-foreign” problem? Did he also confuse the paper’s reporters about the extent of warrantless wiretapping by the NSA?
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THE TRUTH ABOUT ELECTRONIC SURVEILLANCE

A U.S. District Court judge who served on the FISA court during 2007 agreed to speak to Penthouse on background. He stated that the court in 2007 was overwhelmed with requests to do foreign-to-foreign surveillance, saying, “One of the problems was, the FISA court was overloaded with foreign-to-foreign calls.” But in a comment that seemed to settle any lingering question about whether or not Bush officials needed to go through FISA before wiretapping the Iraqi insurgents who had captured Jimenez and Fouty, he said, “If you’re in a war theater, you don’t have to ask a court for permission to do surveillance.”
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Nevertheless, the judge at first asserted that before the Protect America Act was passed, in August 2007, FISA required a warrant to intercept a foreign-to-foreign call inside the U.S. The reason for this, he said, was that the government and the legal departments of the telecoms had interpreted the FISA statute to mean that warrants were needed to eavesdrop on those calls inside the U.S.
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But Director of National Intelligence Mike McConnell told the Senate Intelligence Committee on May 1, 2007, that changes in telecommunications left the Bush administration no alternative but to modernize FISA. House Republican leader John Boehner told Fox News that a court ruling had forced the government to apply for warrants to do foreign-to-foreign surveillance. Yet the judge’s comment appears to mean that the Bush administration decided itself, without a court ruling, to apply for FISA warrants to eavesdrop on foreign-to-foreign communications, then sent McConnell to demand a new law from Democrats in the House and Senate to relieve them of that obligation.

FISA has four paragraphs that together define all the circumstances in which a warrant is required, and even before passage of the PAA, in every one of the four paragraphs, at least one end of the communication always had to be inside the U.S. for a warrant to be required. None of the four could be stretched to cover a call that began and ended outside the U.S. When this was put to the judge, he responded in careful legalese, saying, “I don’t necessarily disagree with your reading.”
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The Bush administration acted as if the authority to wiretap a non-U.S. person outside the U.S. from within the U.S. was new, added by the PAA. This may have served to disguise its ability, before 9/11, to have intercepted and traced calls from Yemen to two of the hijackers who were living in San Diego. President Bush said on December 17, 2005, that those two hijackers “communicated…to other members of Al Qaeda who were overseas. But we didn’t know they were here until it was too late.” Regardless of what FISA required inside the U.S., its regulations never extended beyond U.S. shores, and so NSA listening posts abroad could have traced those calls.
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AN ODD POSTSCRIPT

When the Pentagon announced in July 2008 that the remains of Alex Jimenez and Byron Fouty had been found, it said the deaths of the two soldiers were under investigation. The Army’s Criminal Investigation Command report into the attack, dated July 14, 2009, includes a list of documents, one of which raises questions: It’s a CD labeled as “original images” of the Armed Forces Institute of Pathology’s examination of Jimenez’s and Fouty’s remains, and dated May 16, 2007—only four days after their abduction. Christopher Grey, the CID chief of public affairs, said of the CD of photos, “I was informed that was an administrative error.” When asked for more details, Grey said he would research the matter further. As we were going to press, he sent an email that read (in part), “The photos are of disassociated remains/tissue of soldiers killed during the same attack that involved [Jimenez and Fouty]…[The remains] were inadvertently mislabeled…The case file is currently being corrected.”

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¹ Jimenez’s unit was guarding a position, not moving, when the Iraqis attacked, according to an Army press release I discovered too late to make a correction.
² Gates was Defense Secretary throughout 2007 and 2008.