Monday :: Jan 23, 2006

King-George-gate: The case of Mohammed Junaid Babar and the British fertilizer bomb plot


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 on Americans since 2001, they mentioned two specific justifications offered by the Bush administration for the NSA operation. I covered one of the two previously - the case of Iyman Faris - showing that Bush's illegal spying program was not required to uncover Faris or his plot. Rather, the available evidence indicates that the FBI's legal searches were adequate to locate, monitor and convict Faris.

In this post, I analyze the second alleged justification mentioned by Risen and Lichtblau, which involved the rather strange case of Mohammed Junaid Babar (another naturalized citizen - a Pakistani-American):

What appeared to be another Qaeda plot, involving fertilizer bomb attacks on British pubs and train stations, was exposed last year in part through the program, the officials said.

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 Mohammed Junaid Babar and his link to the alleged plot to set off bombs in the U.K.?
2. Did warrantless spying on Babar lead to the prevention of the alleged plot to set off bombs in the U.K.?
3. Would it have been impractical or impossible to find Babar and prevent him from doing any harm to the U.S. (or U.K.) 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 Mohammed Junaid Babar and his link to the alleged plot to set off bombs in the U.K.?

The answer is a clear NO.

Of all the cases I have reviewed so far, none screamed "Hell, we don't need a warrantless wiretap here!" as much as Babar's case. Why? Babar went public on TV, stating his intent to fight alongside the Taliban shortly after 9/11 - which got him a well deserved spot in the U.S. government's terrorist watch list. If that's not enough "probable cause" for the extraordinarily compliant and deferential (to the Executive) FISA court to issue a warrant, then the earth is flat. Not to mention, Babar was overseas during a significant portion of the time after 9/11 and he could have been monitored and spied on while overseas without running into any constitutional or legal issues.

As Mark Hosenball noted in Newsweek (emphasis mine):

The second case cited by New York Times sources as an example of how the eavesdropping helped foil a terror plot is a U.K. investigation known to British authorities as Operation Crevice. This operation resulted in the arrest of a group of U.K. residents of Pakistani descent in early 2004 on charges of plotting to mount attacks in Britain using explosives made out of fertilizer.
...
A key witness in the case, according to the British sources, is a former New York resident named Mohammed Junaid Babar, who was detained by the FBI shortly before the U.K. arrests and later brought before a federal judge in Manhattan. Babar, a computer programmer, had left the United States after 9/11 and a few months later gave a widely broadcast TV interview, speaking in an American accent about his pro-jihad and anti-American views.

Here's more from the NYT in 2004 (via Flogging the Simian):

Mr. Babar, who faces up to 70 years in prison, was arrested by a police sergeant, a detective and two agents from the F.B.I.-N.Y.P.D. Joint Terrorist Task Force shortly after returning from Pakistan in April, law enforcement officials have said. He was picked up on a Queens street on his way to a taxi driving school he had been attending in Long Island City.
...
The task force began investigating Mr. Babar after learning about a Canadian television news report that included an interview with him in which he said he wanted to travel to Afghanistan and fight alongside the Taliban against American soldiers, one of the officials said. He was later put on a terrorist watch list, and authorities were notified when he returned to the United States.

Now, maybe some of Bush's patsies want to believe that the FBI desperately needed to spy without a warrant on Americans actually issuing terrorist threats against America, in order to keep track of their whereabouts, but in the reality-based community someone who declared his intent to fight Americans (in Afghanistan) on a public TV interview would not be the kind of target for which that any court, let alone FISA, would hesitate to issue a warrant for a roving wiretap. Indeed, since the Bush administration decided to treat Babar - a self-professed terrorist supporter - not as an "enemy combatant" but merely as a potential criminal to be tried in court as a law enforcement matter, it would have been fatally foolish of them to have not gotten the easiest warrant available on earth. So, it should therefore not be surprising that before the Bushies rolled out his case as an example of the success of the illegal warrantless spying program against Americans, they actually touted his case as a success of the legal and Orwellian PATRIOT Act (see below).


2. Did warrantless spying on Babar lead to the prevention of the alleged plot to set off bombs in the U.K.?

News reports indicate the answer is clearly NO.

In fact, the Bush administration (both former Attorney General John Ashcroft and his Deputy James Comey) previously touted his case as an example of the success of legal law enforcement activity under the PATRIOT Act. So, let's just say that the Bushies are extraordinarily reckless to now try and allege that Babar's case was somehow linked to an illegal spying program since that would only provide Babar aid and comfort in court and risk letting him go free.

Let's review some of the PATRIOT Act related background.

A year ago, Michael Isikoff and Mark Hosenball at Newsweek wrote (emphasis mine):

Last week, in a NEWSWEEK interview, the departing A.G. took credit for tough actions that disrupted plots, "significantly damaged" Al Qaeda and "made it far more difficult" for the terrorists to operate. He pointed in particular to the obscure arrest of a New York taxi-driver student who, Ashcroft aides say, was ensnared with the help of one of the most controversial provisions of the Patriot Act: the section giving the Feds new powers to obtain records of public-library users.

Ashcroft's claims may be impossible to prove; some counterterror officials insist the original intel about a Qaeda plot was both hyped and misinterpreted. The real strike, it now appears, was being planned for Great Britain, not the United States. Still, the case of Qaeda sympathizer Mohammed Junaid Babar may have been a key part of the story. A 29-year-old former student at New York's St. John's University, Babar was tracked flying off last winter to South Waziristan in Pakistan, where he attended what some analysts believe was a terror summit that included the notorious Qaeda pilot Adnan Shukrijumah and Dhiren Barot, the operative suspected of casing New York financial institutions a few years earlier. Justice officials say they learned of Babar's activities in part through a highly contentious method: monitoring his Internet use at a New York City public library, where he allegedly exchanged messages with Qaeda confederates abroad. (Ashcroft had previously told Congress that Justice had never used the library-snooping provision—an assertion he has conspicuously declined to repeat since the Babar case.)

Arrested in Long Island City last April, Babar flipped, pleaded guilty and told the Feds about an ongoing plot to blow up London pubs and train stations. Babar also confessed to supplying Qaeda members with ammonium-nitrate fertilizer to make bombs.

The key point is that they were using the PATRIOT Act (Sec. 215) to monitor "his Internet use at a New York City public library, where he allegedly exchanged messages with [al] Qaeda confederates abroad".

It wasn't just Ashcroft who made this claim; so did his now well-known Deputy James Comey (the former boss of Special Prosecutor Patrick Fitzgerald) who also happened to be one of the prominent people in the Justice Department to refuse to sign off on parts of the NSA's illegal spying program. As Library Journal said:

In a farewell interview with Newsweek, departing Attorney General John Ashcroft cited the use of the USA PATRIOT Act at a public library in New York City to gain intelligence on Mohammed Junaid Babar, a Pakistani-born U.S. citizen who acknowledged participating in a plot to blow up London pubs and train stations. Babar pleaded guilty last year to providing "material support or resources to a foreign terrorist organization," including equipment and money to Al Qaeda officials in Pakistan. It was unclear which of the three city library systems Babar used, and inquiries were met with a reminder that the Patriot Act includes a gag order.

Last September 22, Deputy Attorney General James Comey described the case before the Senate Judiciary Committee. "We recently had an Al Qaeda associate that we were tracking in New York, very concerned about, who had a computer at home that we were monitoring, and he kept going to a library to use the computer... To make a long story short, we found out after we locked this guy up that he was going there because that library's hard drives were scrubbed after each user was done, and he was using that library to e- mail other Al Qaeda associates around the world. He knew that that was a sanctuary." Section 215 of the Patriot Act allows searches of business records, including library records, without requiring probable cause that a crime has been committed. Critics say that law enforcement agencies can use existing tools--including search warrants--to investigate.

Thus, James Comey also made it quite clear that Babar's communications with associates outside the U.S. (which would presumably include those involved in the British bomb plot) were tracked using the PATRIOT Act, and not a warrantless wiretap (also see this short note from the American Library Association (ALA) on the same matter). Now, for the life of me, I can't understand why the Bush administration and the FBI needed to invoke the PATRIOT Act here because they could have just as easily gotten a regular warrant to monitor Babar given his self-described support for terrorists and his stated intent to fight Americans in Afghanistan. As Campaign for Reader Privacy noted (emphasis mine):

In late 2004, Justice Department officials began to cite the case of Mohammed Junaid Babar as an example of how it had used Section 215 of the USA PATRIOT Act in libraries and why it needs those powers. In public comments, Deputy Attorney General James B. Comey, Jr. and outgoing Attorney General John Ashcroft alleged that Babar, a suspected al Qaeda associate, used a computer at the New York Public Library to send messages to al Qaeda overseas. Comey and Ashcroft have implied that Section 215 allowed them to monitor Babar’s internet use at the library, and that evidence from that surveillance was important in securing a guilty plea in the case.

What the Justice Department does not say is that powers it possessed before 9/11 and before the USA PATRIOT Act would have allowed it to gather this same information. Grand jury subpoenas can be secured on a showing of probable cause to believe that the person whose records are being sought is involved in criminal activity. And the Foreign Intelligence Surveillance Act in its pre-9/11 form allowed the FBI to conduct surveillance on anyone suspected of being a terrorist or an agent of a foreign power. With those powers already at the disposal of law enforcement, the Justice Department has yet to explain convincingly that the power Section 215 gives the FBI to gain access to the bookstore and library records of law-abiding U.S. citizens and residents is anything other than an invitation to abuse.

In other words, there were numerous law enforcement tools available to the Bush administration to legally monitor and convict Babar. There is simply no reason to think that the FBI would have ignored all of those tools in order to recklessly use warrantless wiretaps to monitor and convict Babar.

Therefore, it should come as no surprise that the Bushies' claim that the illegal spying program was somehow key in the Babar/British bomb plot case was rejected by some current and former law enforcement and counterterrorism officials (in the Bush administration). As Lowell Bergman et al. reported a week ago 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.

(Also see Mark Hosenball's story pointing out that the Bush admin previously claimed that success in Babar's case was attributable to the PATRIOT Act.)


3. Would it have been impractical or impossible to find Babar and prevent him from doing any harm to the U.S. (or U.K.) without a warrantless wiretap?

It is obvious from Sections 1 and 2 above that the answer to this question is NO.

In summary, as Campaign for Reader Privacy noted (emphasis mine):

In late 2004, Justice Department officials began to cite the case of Mohammed Junaid Babar as an example of how it had used Section 215 of the USA PATRIOT Act in libraries and why it needs those powers. In public comments, Deputy Attorney General James B. Comey, Jr. and outgoing Attorney General John Ashcroft alleged that Babar, a suspected al Qaeda associate, used a computer at the New York Public Library to send messages to al Qaeda overseas. Comey and Ashcroft have implied that Section 215 allowed them to monitor Babar’s internet use at the library, and that evidence from that surveillance was important in securing a guilty plea in the case.

What the Justice Department does not say is that powers it possessed before 9/11 and before the USA PATRIOT Act would have allowed it to gather this same information. Grand jury subpoenas can be secured on a showing of probable cause to believe that the person whose records are being sought is involved in criminal activity. And the Foreign Intelligence Surveillance Act in its pre-9/11 form allowed the FBI to conduct surveillance on anyone suspected of being a terrorist or an agent of a foreign power. With those powers already at the disposal of law enforcement, the Justice Department has yet to explain convincingly that the power Section 215 gives the FBI to gain access to the bookstore and library records of law-abiding U.S. citizens and residents is anything other than an invitation to abuse.

In other words, not only did the Bush administration use the controversial (but legal) resouces available to it under the PATRIOT Act to monitor and prosecute Babar, there were other easily available law enforcement tools to legally monitor and convict Babar. There is simply no reason to think the FBI or the Justice Department would have chosen to ignore all of those tools in order to use NSA's warrantless wiretaps to monitor and convict Babar. Not to mention, Babar was overseas during a significant portion of the time after 9/11 and he could have been monitored and spied on while overseas without running into any constitutional or legal issues.

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