Surveillance or Security?: The Risks Posed by New Wiretapping Technologies (21 page)

Senator Arlen Specter, then in private practice after a stint as Philadelphia
district attorney, also testified to the commission:

I am opposed to wiretapping because I believe its harm as a serious invasion of
privacy far outweighs its value to law enforcement. At the outset, I put aside cases
involving national security since my experience does not extend to that area. Based
on eight years as a District Attorney ... and six more years in other prosecutorial
and investigative work, I have not seen any cases where wiretapping would have
been of assistance on any major felony, such as murder, robbery, rape, arson, or
burglary.

After reviewing the data compiled by the Administrative Office of the U.S. Courts
on orders authorizing wiretapping, it is my conclusion that wiretapping has not
been a major weapon against the most serious forms of criminal conduct."

During the 1990s fight over the right to use strong encryption, Whitfield
Diffie and I studied the use of wiretaps in the three decades since the
passage of Title III. Using the government's Wiretap Report, we found:

• Initially the main crime targeted by wiretaps was gambling. At the
time Title III was passed, gambling was a major source of income for
organized crime, and thus a major focus of wiretaps. For the first five years
after the law's passage, 64 percent of wiretaps were used in gambling
investigation S.49

Despite this, organized crime was not particularly damaged. As states began
using legalized gambling (largely state lotteries and off-track betting) as a
new source of revenue, organized crime turned instead to other activities,
including drug dealing.

• Wiretapping's main domestic use then shifted to the war on drugs. By
1997, drug cases were the vast majority of Title III cases.

• During the Crypto Wars, FBI Director Louis Freeh often cited the need
for wiretaps in kidnapping cases. Not surprisingly this issue resonated with
every member of Congress.

In fact, wiretaps are rarely used in kidnapping cases. In the twenty-five-year
period between 1969 and 1994, wiretaps and microphone bugs were used
eighty times in kidnapping cases, or less than 1 percent of the time.50 The
reason is clear: in a classic kidnapping case (which does not mean a case
of kidnapping by a noncustodial parent), law enforcement rarely knows
who to wiretap. If police eavesdropping occurs at the home of the victim's
family, then it is a consensual overhear, not a wiretap. The average of under
three cases a year is an alarmingly small number on which to base a
national telecommunications policy.

• Hearing the plotting of a crime does not necessarily prevent its occurrence. As Patrick Fitzgerald, U.S. Attorney for the Northern District of
Illinois, testified, "People talk cryptically, they harrumph, they refer to this
guy, they refer to that guy, that place over there."" It is often very difficult
to determine intent. From law enforcement not able to understand the
language being spoken,52 to not understanding the "street slang and police
jargon,"" crimes have occurred even when the plotting was captured on
a law enforcement wiretap.

• Conviction in a case where wiretapping played a role does not mean that
wiretapping helped solve the crime or resulted in a conviction. Only a
careful study of the court proceedings-and sometimes an interview with
the jury or judge-can indicate that.

Little has changed. There were no instances of Title III wiretap investigations used in terrorism cases.54 Drug cases accounted for an increasing
percentage of wiretap investigations during the period, starting at 72
percent in 1998 and rising to 86 percent by 2009. The number of Title III
wiretap orders has increased, rising to 1764 in 2009.55 Over the twelve-year
period from 1998 through 2009, wiretaps were used sixty-three times in
kidnapping investigations, for an average of 5.3 kidnapping cases annually.
Encryption appeared to be a nonissue for law enforcement interceptions.
As of 2000 the Wiretap Report includes all instances of encryption encountered while wiretapping.56 At first, state and local law enforcement agencies
were running into a number of cases a year,57 but only one of the cases
was reported impossible to decrypt. One change worked very much to law
enforcement's advantage: the shift to cell phones. As cell phone use became
ubiquitous in society, law enforcement tapped suspects' conversations while
they were on the move. By 2009, 96 percent of Title III wiretap orders were
for cell phones and digital pagers.58

Thus in the first decade of the new millennium, rather than being
impeded, police found wiretaps had become an even more powerful tool
in investigations of criminal activity.

5.3 How Effective Is Wiretapping in National-Security Cases?

The head of the Japanese Navy, Admiral Isoroku Yamamoto, was known to
be exceedingly punctual. Electronic surveillance and code-breaking during
World War II enabled the U.S. military to discover Yamamoto's plans to conduct
an inspection tour of Japanese bases in the upper Solomon Islands in April
1943.59 Army Air Corps pilots intercepted Yamamoto's entourage and shot
down his plane. This well-planned effort was a surprise to the Japanese, who
believed the attack had been simply a lucky break for the Americans.

In November 2002 electronic surveillance and voice recognition enabled
the United States to target an Al-Qaeda operative traveling in a remote part
of Yemen.60 The Al-Qaeda agent, Qaed Senyan al-Harthi, was using a standard commercial satellite phone. An NSA agent, listening in, recognized
al-Harthi's voice while the satellite phone revealed his location. The car in
which he was riding was then targeted by a Predator drone, which launched
a missile and blew the car up.

There is no question that electronic surveillance has enabled remarkable
successes in U.S. national-security cases. Yet the issue to consider here is
a much narrower one: the effectiveness of domestic communications interception in national-security cases. The record in this regard is difficult
to analyze.

While there have been a number of trumpeted public announcements
of arrests and domestic terrorism incidents averted, many cases turned out
to be less of a threat than they originally appeared. These include the arrest
of three Detroit men whose house contained "airport-employee identification badges and a date book with hand-drawn diagrams of aircraft and
runways,"" the claim that a Brooklyn mosque had "helped funnel millions
of dollars to al Qaeda,i62 and a plot by seven Miami men to blow up the
Sears Tower in Chicago.63 The U.S. government itself petitioned the
courts to have the Detroit case thrown out, while the charges regarding
the Brooklyn mosque turned out to be groundless. After two mistrials, the
Miami case ended up with one acquittal and five convictions, but a number
of legal scholars argued that the evidence was weak; one former prosecutor
commented that this was not a case involving terrorism but rather "an
overcharged gang case."64

There are numerous reasons for the hype surrounding the arrests,
ranging from the desire of the Bush administration to be seen to be doing
a good job on combating terrorism to the FBI's own interest in appearing
on top of the situation. The problem was made worse by the multiple
definitions of terrorism used by the United States. The investigative agencies (including the FBI, Secret Service, Immigration and Customs Enforcement, and Bureau of Alcohol, Tobacco, Firearms and Explosives) have one
definition for terrorist activities; the federal prosecutors have a different
definition, and the Department of Justice's National Security Division,
which coordinates national-security efforts within DoJ, has a third.65 These
differing definitions greatly complicate the situation.

As the Syracuse University Transactional Records Clearinghouse (TRAC)
recent study on terrorism investigations observed, "To the extent that
investigators waste their time targeting the wrong suspects, the chances
increase that they will fail to identify the real terrorists who right now may
be seeking to plant bombs, spread poisons, or otherwise harm a much
larger number of innocent people."" As TRAC notes, though, investigations that do not result in prosecutions or convictions are not necessarily
wasted efforts; they may provide useful insights into terrorist activities.67

Large, sustained terrorist actions cannot occur without logistical support.
In the absence of being able to prove terrorism-and there is little value in
proving a case against the September 11 hijackers or the July 7 bombers after
the fact-law enforcement has used a strategy of prosecuting for a lesser
offense, say an immigration violation or cigarette smuggling (trafficking cigarettes from low-tax states to high-tax ones without paying the required
tax has been used by groups as a way to fund terrorist activities"). A conviction that removes the criminal from action for a time may be sufficient.

TRAC found that in the period 2004-2008, investigators referred 1,730
"terrorism" cases for prosecution (this is under the federal court definition
of terrorism69). But only one-seventh of these were prosecuted.70 Even then
the charge of terrorism in a court case can be a red herring. The TRAC
study notes that "prosecutors sometimes chose to file a specific terrorism
charge against an individual even in situations where that person does not
appear to have any connection to terrorism. 117' By inducing plea bargaining, the heavy penalties applied to terrorist convictions may be a strong
motivator for the terrorism designation.

TRAC followed the 1,730 cases defined by federal prosecutors as terrorism investigations. Of the 235 cases that went to trial during the period,
there were some very serious cases. These included prosecutions for

• Providing material support for terrorism, including fundraising:
The Texas-based Holy Land Foundation (HLF) sent more than $12 million
to Hamas, a terrorist organization, and affiliated groups. Five leaders of
HLF were convicted and given sentences of from fifteen to sixty-five years
in prison.71

Naji Antoine Abi Khalil and Tomer Grinberg tried to export military nightvision equipment-controlled equipment that cannot leave the country
without an export license-to Hezbollah, a terrorist organization .71

• Providing logistical support to terrorist organizations:

Uzair Paracha, a twenty-one-year-old Pakistani in New York, posed as Majid
Khan to the U.S. Immigration and Naturalization Service and other U.S.
institutions; Khan was an Al-Qaeda member who sought reentry to the
United States. Paracha's subterfuge was to make it appear that Khan had
been out of the United States only briefly (this was done to simplify Khan's
return).

• Providing terrorist training both in the United States and abroad:

Christopher Paul pleaded guilty to providing explosives training in Ohio
and Germany.74

Oussama Kassir was sentenced to life in prison for helping establish a
jihad training camp in Bly, Oregon, in 1999.75

• Passing classified information regarding the movements of a U.S. Navy
battle group to a group alleged to have terrorist connections:76

U.S.S. Benfold signalman Hassan Abu-Jihaad (formerly Paul Hall) was
convicted of passing classified information about Navy ship movement to
a terrorist organization.

• Plotting to bomb a shopping mall:

Derrick Shareef planned to set off grenades at a Rockford, Illinois, shopping
mall."

• Attempting to smuggle illegal aliens into the United States:

Al-Qaeda is not the only organization seeking to bring illegals into the
country. Many terrorist groups view the United States as an excellent place
for money laundering and other illegal activities.

Jose Tito Libio Ulloa Melo and Jorge de los Reyes Bautista Martinez
pleaded guilty to attempts to smuggle aliens into the United States from
Colombia (the aliens were posing as members of the Revolutionary Armed
Forces of Colombia-better known as FARC, a terrorist organization).

• Attempting to purchase arms, including surface-to-air missiles:

This was by members of the Sri Lankan terrorist group Tamil Tigers."

TRAC data shows that almost half the time U.S. attorneys turned down
cases because of weak or insufficient admissible evidence or lack of criminal
intent." The 235 prosecutions resulted in 187 convictions, 77 of which
had sentences of five years or more, 23 of twenty years or more, and 6, life
sentences.80 The low number of long sentences gives an impression that
there are few serious cases of terrorism.

The conflicting interpretations that the cases and the numbers give of
important successes and few serious cases are both correct. Because thinking about a terrorist act is not a crime, terrorism investigations present
great complexity. It is critically important that terrorists be stopped before
they commit an act of terrorism. Thus criminal planning can proceed only
so far before police intervention. Khalil and Grinberg were arrested
moments after they sold the night-vision goggles to an undercover FBI
agent, while Shareef was arrested when he met with a federal agent to
exchange stereo speakers for grenades. Intervention too early can prevent
gathering sufficient evidence for conviction of a serious crime, and the
timing of an arrest is a difficult issue for law enforcement.

With few exceptions, in the United States radical Islamic terrorism efforts
have focused on recruitment and fundraising (right-wing terrorism in the
United States has not followed the same pattern). Thus while wiretapping
has been used in a number of successful terrorist investigations including
the Holy Land Foundation case and the cases of Jose Padilla, accused of
plotting to set off a "dirty bomb" but eventually sentenced on lesser
charges, and Derrick Shareef, it has rarely been the crucial tool that prevented terrorist activities from occurring within the United States. (Much
of the wiretapping done in the United States has been to aid investigations
abroad, particularly in the United Kingdom.) A recent case was different.