King-George-gate: The Case of Iyman Faris
by eriposte
[This is part of my ongoing coverage on King-George-gate: Myths v. Realities]
When James Risen and Eric Lichtblau broke the NYT story on the Bush administration's secret and illegal spying of Americans since 2001, they mentioned one of the two main justifications offered by the Bush administration for the NSA operation:
Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches.
Is that claim really true?
In this post I provide the answer by specifically addressing the following questions:
1. Was warrantless spying required to discover Iyman Faris and his alleged plot to destroy the Brooklyn Bridge?
2. Did warrantless spying lead to the prevention of the alleged plot to destroy the Brooklyn Bridge?
3. Would it have been impractical or impossible to find Faris and prevent him from doing any harm to the U.S. without a warrantless wiretap?
Based on the news reports to date, the answers to each of the above questions is NO. Let's see why (below the fold).
1. Was warrantless spying required to discover Iyman Faris and his alleged plot to destroy the Brooklyn Bridge?
Reports from the New York Times and Newsweek indicate that the answer is no. Independent of any domestic intelligence on Faris, the Bush administration actually obtained Faris' name from their interrogations and/or search of the 9/11 mastermind Khalid Sheikh Mohammad (who was captured in Pakistan in early 2003).
Let's start with this observation from Risen and Lichtblau in their NYT article, which provides some perspective on how U.S. intelligence officials were receiving tips from captures and "interrogations" (outside the scope of FISA) of Al Qaeda operatives overseas (emphasis mine):
What the agency [NSA] calls a ''special collection program'' began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism. The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said.
In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said.
[NOTE: Remember what happens when the NSA starts "monitoring others linked to" terrorists? John at Americablog explained this recently: many prominent people are likely - and accidentally - just one or two "links" away from people with suspected "connections" to "terrorists" (and I use the word "connections" to mean that there was a link that may or may not have anything to do with supporting terrorism - as you will see if you click through and read John's post.)]
Specifically on the case of Faris, Michael Isikoff et al. at Newsweek reported the following back in June 2003 (emphasis mine):
Attorney General John Ashcroft today unveiled some of the strongest evidence to date of Al Qaeda’s continued presence inside the United States—the plea agreement of a 34-year-old Columbus, Ohio, truck driver who admits he was plotting to cut the suspension cables on the Brooklyn Bridge and derail passenger trains under orders from Osama bin Laden’s top lieutenants.
The unsealing of the plea agreement against Iyman Faris, 34, came only days after he was identified in a NEWSWEEK cover story, “Al Qaeda in America,” as one of a number of Qaeda operatives inside the country fingered by Khalid Shaikh Mohammed, the alleged mastermind of the September 11 terror attacks, who was captured in Pakistan last March.
...
The court papers indicate that, upon returning to the United States from Pakistan in April 2002, Faris set about his mission, researching the purchase of “gas cutters” and the dimensions of the Brooklyn Bridge on the Internet. He sent coded messages back to another Al Qaeda leader in Pakistan using code—the “gas cutters,” for example, were referred to as “gas station.” Later in the year, Faris traveled to New York and physically surveyed the bridge. But according to the court papers, he concluded that any plot to destroy the bridge by severing the cables “was very unlikely to succeed because of the bridge’s security and structure.” At that point, he sent a message back to Al Qaeda that “the weather is too hot”—code for the mission was unlikely to succeed.At the end of the day, if the court papers are to be believed, Faris never actually succeeded in committing any acts of terrorism and his work for the terror group apparently ended in March 2003 with Mohammed’s apprehension. (Sources tell NEWSWEEK that Mohammed did not at first volunteer Faris’s name. But cell phones and computer discs found in Mohammed’s Pakistani safe house enabled U.S. authorities to identify Faris—and a number of other operatives in the United States—and Mohammed eventually confirmed his contacts with the truck driver.)
In other words, the U.S. Government had a foreign source (Khalid Sheikh Mohammad) allegedly linking Faris to Al Qaeda. That source - being entirely foreign - was not subject to the FISA prohibition against warrantless wiretapping of U.S. persons.
The existence of the foreign source was confirmed again, earlier this year, by Mark Hosenball at Newsweek (emphasis mine):
Administration officials have suggested to media outlets like The New York Times—which broke the story—that the spying played a role in at least two well-publicized investigations, one in the United Kingdom and one involving a plan to destroy the Brooklyn Bridge.
But before the NSA’s warrantless spying program became public, government spokesmen had previously cited other intelligence and legal tactics as having led to major progress in the same investigations. In the Brooklyn Bridge case, officials indicated that the questioning of a captured Al Qaeda leader had led to investigative breakthroughs in Ohio.
...
In both instances, officials originally indicated that key investigative developments came from sources other than NSA electronic eavesdropping—then still a closely guarded secret.The best-known investigation was the case of Faris, a Columbus, Ohio, truck driver and naturalized U.S. citizen who pled guilty in 2003 to an alleged conspiracy that included the purported plot to cut down the Brooklyn Bridge. In interviews with the FBI, he also acknowledged visiting New York and casing the bridge, though later Faris recanted several admissions, including his acknowledgement that he had conducted surveillance of the bridge.
A transcript of Faris’s October 2003 sentencing hearing, before Judge Leonie Brinkema in Federal Court in Alexandria, Va., makes cryptic references to two separate sources of intelligence that helped the federal investigation. Prosecutor Neil Hammerstrom Jr. told the judge that on March 19, 2003, two FBI agents and an officer from an antiterror task force went to interview Faris in Ohio following what the prosecutor described as “a call that was intercepted in another investigation.” Hammerstrom said he didn’t want “to get into too many details in open court.” He indicated that when the agents first went to interview Faris, the suspect was not hostile and agreed to talk to them further, so they walked away from the interview without detaining him.
After Faris agreed to let them search his apartment, they came back the next day to do so. Later that day, according to Hammerstrom, the FBI got what he called “overseas source information that Mr. Faris had been tasked to go and look at the Brooklyn Bridge as a possible target of an attack by Al Qaeda.” David B. Smith, Faris’s current lawyer, says he is convinced this information came from Khalid Shaikh Mohammed, who had just been arrested in Pakistan. Armed with this information, the FBI then arrested Faris and later took him to the FBI academy at Quantico, Va., where he was questioned for several weeks and allowed to make cell-phone calls, which his lawyers believe were monitored with a warrant from the Justice Department’s secret foreign-intelligence surveillance court. The Justice Department announced Faris’s arrest, and guilty plea to terrorism charges, after the existence of the investigation was disclosed in a NEWSWEEK cover story. [see mirror link here - ed.]
Smith, who replaced another defense lawyer who had handled Faris’s guilty plea, is now preparing legal papers on his client’s instruction to try to re-open the case, based partly on the defendant's current claims that he lied to the FBI about his involvement in a Brooklyn Bridge plot. Smith says that, based on what prosecutors said in court at the time of Faris’s guilty plea, he is “skeptical” as to whether the NSA’s controversial monitoring program had “much of an impact” on the Faris case. “It’s exaggerated to say that NSA wiretaps made this case,” Smith told NEWSWEEK. Smith added that his client had recently claimed that while Khalid Shaikh Mohammed had tried to recruit him to terrorism, he only met the 9/11 mastermind to get material for a book he wanted to write about Al Qaeda. Faris says that he never really helped Mohammed, and Faris believes Mohammed fingered him to U.S. interrogators because he saw Faris as “worthless.”
In other words, not only did the FBI have overseas information allegedly linking Faris to Al Qaeda, but it was only after obtaining the overseas information that the FBI arrested Faris. The report above also makes it clear that the alleged Brooklyn Bridge plot was discovered not because of any warrantless NSA wiretapping but based on "overseas source information that Mr. Faris had been tasked to go and look at the Brooklyn Bridge as a possible target of an attack by Al Qaeda."
Consistent with the above observations, Lowell Bergman et al. also reported the following in the New York Times (emphasis mine):
But, along with several British counterterrorism officials, some of the officials questioned assertions by the Bush administration that the program was the key to uncovering a plot to detonate fertilizer bombs in London in 2004. The F.B.I. and other law enforcement officials also expressed doubts about the importance of the program's role in another case named by administration officials as a success in the fight against terrorism, an aborted scheme to topple the Brooklyn Bridge with a blow torch.
Some officials said that in both cases, they had already learned of the plans through interrogation of prisoners or other means.
...
By the administration's account, the N.S.A. eavesdropping helped lead investigators to Iyman Faris, an Ohio truck driver and friend of Khalid Shaikh Mohammed, who is believed to be the mastermind of the Sept. 11 attacks. Mr. Faris spoke of toppling the Brooklyn Bridge by taking a torch to its suspension cables, but concluded that it would not work. He is now serving a 20-year sentence in a federal prison.But as in the London fertilizer bomb case, some officials with direct knowledge of the Faris case dispute that the N.S.A. information played a significant role.
2. Did warrantless spying lead to the prevention of the alleged plot to destroy the Brooklyn Bridge?
Just as warrantless spying was not required to discover Faris or his alleged plot to bring down the Brooklyn Bridge (Section 1 above), there was also no need for warrantless spying in order to prevent that alleged plot. According to news reports, Faris himself had dropped the idea of the plot, seemingly before the U.S. Government was even aware of its existence.
As Michael Isikoff et al. at Newsweek reported - back in June 2003 (emphasis mine):
But according to the court papers, [Faris] concluded that any plot to destroy the bridge by severing the cables “was very unlikely to succeed because of the bridge’s security and structure.” At that point, he sent a message back to Al Qaeda that “the weather is too hot”—code for the mission was unlikely to succeed.At the end of the day, if the court papers are to be believed, Faris never actually succeeded in committing any acts of terrorism and his work for the terror group apparently ended in March 2003 with Mohammed’s apprehension. (Sources tell NEWSWEEK that Mohammed did not at first volunteer Faris’s name. But cell phones and computer discs found in Mohammed’s Pakistani safe house enabled U.S. authorities to identify Faris—and a number of other operatives in the United States—and Mohammed eventually confirmed his contacts with the truck driver.)
In fact, Faris' lawyer is challenging the claim that Faris was even part of such a plot (even though Faris pled guilty). It's not clear to me if this claim is really true, but earlier this year, Mark Hosenball at Newsweek provided an update on this (emphasis mine):
The best-known investigation was the case of Faris, a Columbus, Ohio, truck driver and naturalized U.S. citizen who pled guilty in 2003 to an alleged conspiracy that included the purported plot to cut down the Brooklyn Bridge. In interviews with the FBI, he also acknowledged visiting New York and casing the bridge, though later Faris recanted several admissions, including his acknowledgement that he had conducted surveillance of the bridge.
...
Smith, who replaced another defense lawyer who had handled Faris’s guilty plea, is now preparing legal papers on his client’s instruction to try to re-open the case, based partly on the defendant's current claims that he lied to the FBI about his involvement in a Brooklyn Bridge plot. Smith says that, based on what prosecutors said in court at the time of Faris’s guilty plea, he is “skeptical” as to whether the NSA’s controversial monitoring program had “much of an impact” on the Faris case. “It’s exaggerated to say that NSA wiretaps made this case,” Smith told NEWSWEEK. Smith added that his client had recently claimed that while Khalid Shaikh Mohammed had tried to recruit him to terrorism, he only met the 9/11 mastermind to get material for a book he wanted to write about Al Qaeda. Faris says that he never really helped Mohammed, and Faris believes Mohammed fingered him to U.S. interrogators because he saw Faris as “worthless.”
In this context, Bill Scher at Liberal Oasis has disussed the Faris case at length. Here is what he pointed out:
This is not the first time Faris has been held up by the Administration when boasting about their terror-fighting record.
In October, when Bush claimed to have "disrupted at least 10 serious Al Qaida terrorist plots since September the 11th," the White House could only name two actual cases.
One was Jose Padilla, who was the "dirty bomber."
Except when the Administration finally charged him after two years in jail without a lawyer, they were unable to actually claim he was behind a dirty bomb plot, nor any other plot in America (the indictment doesn?t even mention Al Qaeda).
The other was Faris.
Except that the so-called "plot" was an idiotic scheme to take out the Brooklyn Bridge with blowtorches,
And according to the feds at the time of guilty plea, Faris had already figured out months earlier that the plot was unworkable. [emphasis mine - Eriposte]
(Also, for what it's worth, Faris is mentally ill. He heard voices and suffered from hallucinations, and needed to be given meds once in prison.)
So the plot was not disrupted by the illegal wiretap program. It collapsed under the weight of its own idiocy. [emphasis mine - Eriposte]
That is, if Faris is actually guilty. He certainly did not get due process.
In June 2004, The Providence Phoenix reported:
He was secretly arrested in March 2003, charged with plotting to destroy the famous bridge, and held incommunicado for two months.
Then he was made an offer he couldn't refuse: he could either plead guilty and cooperate with the FBI, or President Bush and the Department of Defense would declare him an "enemy combatant."
Once so declared, his criminal case would be terminated without trial, and he would be held incommunicado indefinitely, without access to legal counsel.
Rather than fall into such a purgatory, Faris agreed to plead guilty, sign a statement of "facts," and be sentenced to 20 years.
It was a long sentence, but a 20-year tunnel with light at the end of it was better than the alternative.
Faris told FBI interrogators that the signed statement of "facts" they were going to present to the sentencing judge was a fabrication.
During his public sentencing hearing in October of last year, he interrupted the proceedings to insist, again, that he'd been pressured by prosecutors and agents to sign the false statement of facts.
Faris's frantic pleas went unheeded by the sentencing judge, who went along with the program.
So did Faris's lawyer, former federal prosecutor J. Frederick Sinclair, who cooperated with the feds to draft the plea agreement in which Faris waived every single right, including the right to appeal or even to obtain his case records.
Faris then began serving his sentence.
It should be noted that Sinclair did try to get the plea thrown out. The LA Times reported after the 10/03 sentencing:
Sinclair... said at the hearing that he had developed doubts about whether Faris had checked out the structure of the Brooklyn Bridge or even visited New York.
He said Faris' only vehicle was his truck, which was too tall to cross the bridge without hitting cross-beams.
So why do the Bushies keep citing this penny-ante, dubious case about a low-level, mentally ill guy and his aborted blowtorch plot?
Because it's the greatest success story they have.
Faris at least pled guilty. Padilla's case is still being prosecuted. And that's about it.
Back in June, the W. Post went into detail at how pathetic a job the Bushies have done on the terror front:
An analysis of the Justice Department's own list of terrorism prosecutions by The Washington Post shows that 39 people -- not 200, as [White House] officials have implied -- were convicted of crimes related to terrorism or national security.
Most of the others were convicted of relatively minor crimes such as making false statements and violating immigration law -- and had nothing to do with terrorism, the analysis shows.
For the entire list, the median sentence was just 11 months.
Taken as a whole, the data indicate that the government's effort to identify terrorists in the United States has been less successful than authorities have often suggested...
...Except for a small number of well-known cases -- such as truck driver Iyman Faris, who sought to take down the Brooklyn Bridge -- few of those arrested appear to have been involved in active plots inside the United States.
Among all the people charged as a result of terrorism probes in the three years after the Sept. 11, 2001, attacks, The Post found no demonstrated connection to terrorism or terrorist groups for 180 of them...
... a large number of people appear to have been swept into U.S. counterterrorism investigations by chance -- through anonymous tips, suspicious circumstances or bad luck -- and have remained classified as terrorism defendants years after being cleared of connections to extremist groups.
So when the Bushies try to wave Faris around as some great example of the power of illegal warantless wiretaps, the questions they should be asked are:
If warrantless wiretaps are so great, then why is a low-level guy like Faris the only guy in America you caught because of them?
And might it be that the reason why so many people "have been swept into U.S. counterterrorism investigations by chance" is because of your illegal disregard for checks and balances?
3. Would it have been impractical or impossible to find Faris and prevent him from doing any harm to the U.S. without a warrantless wiretap?
Not in the least. As I have discussed in Sections 1 and 2 above, Faris' alleged link to Al Qaeda and his alleged (crackpot) plot to bring down the Brooklyn Bridge (using "blowtorches") were discovered using overseas interrogations and/or searches which did not violate the FISA. In fact, the FBI was already monitoring Faris using a FISA warrant at the same time that the NSA was doing so without a warrant! This may be why there was also some nervousness about continuing warrantless NSA wiretapping of Faris. As this Risen/Lichtblau NYT article points out (emphasis mine):
A related issue arose in a case in which the F.B.I. was monitoring the communications of a terrorist suspect [Faris] under a F.I.S.A.-approved warrant, even though the National Security Agency was already conducting warrantless eavesdropping.
According to officials, F.B.I. surveillance of Mr. Faris, the Brooklyn Bridge plotter, was dropped for a short time because of technical problems. At the time, senior Justice Department officials worried what would happen if the N.S.A. picked up information that needed to be presented in court. The government would then either have to disclose the N.S.A. program or mislead a criminal court about how it had gotten the information.
In other words, there was really no reason to do warrantless wiretapping of Faris at all! If the FBI was already using a FISA warrant to spy on Faris, the NSA could easily have obtained a FISA warrant to do the same.