Judge on NSA Case Cites 9/11 Report, But It Doesn’t Actually Support His Ruling

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http://www.commondreams.org/headline/2013/12/28-0

Judge on NSA Case Cites 9/11 Report, But It Doesn’t Actually Support His Ruling
by Justin Elliott
Published on Saturday, December 28, 2013 by ProPublica

In a new decision in support of the NSA's phone metadata surveillance program, U.S. district court Judge William Pauley cites an intelligence failure involving the agency in the lead-up to the 9/11 attacks. But the judge's cited source, the 9/11 Commission Report, doesn't actually include the account he gives in the ruling. What’s more, experts say the NSA could have avoided the pre-9/11 failure even without the metadata surveillance program.

We previously explored the key incident in question, involving calls made by hijacker Khalid al-Mihdhar from California to Yemen, in a story we did over the summer, which you can read below.

In his decision, Pauley writes: "The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar's telephone number identifier. Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States."

As his source, the judge writes in a footnote, "See generally, The 9/11 Commission Report." In fact, the 9/11 Commission report does not detail the NSA's intercepts of calls between al-Mihdhar and Yemen. As the executive director of the commission told us over the summer, "We could not, because the information was so highly classified publicly detail the nature of or limits on NSA monitoring of telephone or email communications.”