9/11 Commission Report

No NSA Poster Child: The Real Story of 9/11 Hijacker Khalid al-Mihdhar

Sen. Dianne Feinstein is wrong to claim today’s NSA data collection would have stopped 9/11. We had the technology and data to catch Khalid al-Mihdhar. By Michael German

Since whistleblower Edward Snowden exposed the incredible scope of the government’s domestic spying programs, two different narratives are moving forward in Congress.

One, expressed most recently by Sen. Dianne Feinstein, D-Calif., in the Wall Street Journal, argues that the government’s collection of all Americans’ calling data “is necessary and must be preserved if we are to prevent terrorist attacks.”

The other, offered by Sen. Ron Wyden, D-Ore., Rep. James Sensenbrenner, R-Ohio, and others is that the Justice Department, National Security Agency and FBI have repeatedly misled members of Congress and the public about the nature of their spying programs, as well as their effectiveness, and they need to be reined in to protect Americans’ rights.

Unfortunately for Feinstein, a simple review of the facts she marshals to support her position reveals a total reliance on dubious intelligence community statements that have already been widely debunked. The actual facts make clear that the NSA doesn’t need an enormous database of everyone’s phone records to track a discrete number of terrorists -- the NSA just needs to use the traditional tools it has to investigate its targets.

Feinstein’s first claim, based on recent testimony from FBI Director Robert Mueller and the NSA’s director, Gen. Keith Alexander, is that the domestic telephone data collection program would have enabled the intelligence community to prevent the 9/11 attacks by revealing that al-Qaeda operative and future 9/11 hijacker Khalid al Mihdhar was inside the United States. On June 12, 2013, Alexander told the Senate Appropriations Committee:

“We all had this concern coming out of 9/11: How are we going to protect the nation? Because we did get intercepts on Mihdhar, but we didn’t know where he was. We didn’t have the data collected to know that he was a bad person. And because he was in the United States, the way we treat it is he’s a U.S. person. So we had no information on that.”

Mueller made a similar statement the following day in testimony to the House Judiciary Committee:

“[Khalid al-Mihdhar] was being tracked by the intelligence agencies in the Far East. They lost track of him. At the same time, the intelligence agencies had identified an al Qaeda safe house in Yemen. They understood that the al-Qaeda safe house had a telephone, but they could not know who was calling into that particular safe house. We came to find out afterwards that the person who had called into that safe house was al-Mihdhar, who was in the United States in San Diego. If we had this program in place at the time, we would have been able to identify that particular telephone number in San Diego.”

The Justice Department previously made this claim in classified talking points provided to the Senate and House Intelligence Committees in 2009, and again in 2011, as Congress was locked in a debate over reauthorizing the Patriot Act.

There are a few problems with using Mihdhar as the poster child for new domestic spying programs, however. The intelligence agencies, which normally benefit from being able to keep secret any facts that might undermine their arguments, seem to have forgotten that the 9/11 Commission, the Justice Department Inspector General and the intelligence committees in Congress published in detail what the government knew about Mihdhar before the attacks. It turns out that the NSA was intercepting calls to the al Qaeda safe house in Yemen as early as 1999, and both the FBI and CIA knew Mihdhar was an al Qaeda operative long before the 9/11 attacks.

The safe house was discovered during the FBI’s investigation into the 1998 bombings of two U.S. embassies in East Africa, and had been monitored by the NSA and CIA ever since. The inspector general’s report couldn’t be clearer that the intercepts were being broadly shared:

“The NSA’s reporting about these communications was sent, among other places, to FBI Headquarters, the FBI’s Washington and New York Field Offices, and the CIA’s CTC. At the FBI, this information appeared in the daily threat update to the Director on January 4, 2000.”

Intercepted communications from this location allowed the CIA to follow Mihdhar to an al Qaeda meeting in Kuala Lumpur in January 2000. Though they lost him in Thailand, as Mueller suggested, the CIA knew he had a visa to enter the United States and that his travel companion and fellow hijacker, Nawaf al Hazmi, had a plane ticket to fly to Los Angeles.

The CIA, however, failed to place Mihdhar on a watch list or “notify the FBI when it learned Mihdhar possessed a valid U.S. visa,” according to the 9/11 Commission report. The inspector general’s report revealed that five FBI officials assigned to the CIA Counterterrrorism Center viewed CIA cables indicating Mihdhar had a U.S. visa. A week after the Kuala Lumpur meeting, Mihdhar and Hazmi flew into Los Angeles International Airport and entered the United States without a problem. After their entrance, the NSA would intercept at least six calls from the al Qaida safe house in Yemen to the United States, according to the Los Angeles Times.

By all accounts FBI officials knew Mihdhar had a visa to enter the United States by July 2001, and knew he was in the United States by August 22, 2001. As the Joint Intelligence Committee investigation found:

“A review was launched at CIA of all cables regarding the Malaysia meeting. The task fell largely to an FBI analyst assigned to CTC. On August 21, 2001, the analyst put together two key pieces of information: the intelligence the CIA received in January 2000 that al-Mihdhar had a multiple entry visa to the United States, and the information it received in March 2000 that al Hazmi had traveled to the United States. Working with an INS representative assigned to CTC, the analyst learned that al-Mihdhar had entered the United States on January 15, 2000, had departed on June 10, and had re-entered the United States on July 4, 2001.”

Yet neither the FBI nor NSA apparently attempted to trace the calls coming into the al Qaeda safe house until after 9/11, when telephone toll records obtained by the FBI confirmed Mihdhar made the calls.

In other words, the problem was not that the government lacked the right tools to do its job (it had ample authority to trace Mihdhar’s calls). The problem was that the government apparently failed to use them.

It’s pretty cynical for the intelligence community to use its repeated failures to properly assess information it collected prior to 9/11 as justification for wholesale spying on Americans. But Feinstein’s continuing reliance on the Mihdhar canard is even more inexplicable given that ProPublica published an article thoroughly rebutting these claims shortly after Alexander’s and Mueller’s June 2013 testimony. It’s troubling when the Senate Intelligence Committee Chairwoman ignores more accurate information from public sources in deference to U.S. intelligence agencies, which have not only misled members of Congress but the Foreign Intelligence Surveillance Court, as well.

But Feinstein doesn’t only peddle falsehoods from the past. She then points to the NSA’s claim that dozens of terrorist events were disrupted through these domestic spying programs, though this too was publicly debunked. During a Senate Judiciary Committee hearing on Oct. 2, 2013, Sen. Patrick Leahy, D-Vt., questioned.Alexander directly on the NSA’s claims that these programs prevented 54 terrorist plots. Leahy called them “plainly wrong” and pointed out that the listed incidents “weren’t all plots and they weren’t all thwarted.” Only 13 had any nexus to the U.S. and only one case relied on the bulk call records’ program in a significant way. And even that case didn’t involve any plot on the US -- it involved a material support prosecution relating to someone who allegedly sent $8500 to al Shabaab in Somalia.

Alexander sheepishly agreed with Sen. Leahy’s analysis, leading the senator to tell the NSA director that the government’s use of inaccurate statistics undermined its credibility with Congress and the American people. Feinstein was on hand when Alexander admitted to Leahy that these statistics were misleading.

These repeated efforts to mislead Congress and the American people only make the case more strongly that the government’s surveillance authorities need to be sharply curbed with strong legislation that ends the bulk collection programs, protects Americans’ private communications and adds more transparency and public accountability to these activities. Americans have the right to truthful information about their government’s intelligence activities, and the current oversight system, which depends on whistleblowers willing to risk jail, certainly isn’t working.

Michael German is a senior policy counsel at the ACLU’s Washington Legislative Office and a former FBI agent.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.