Judge Falls for The Big Lie About NSA Spying

Even Before 9/11, NSA Knew In Real-Time Which Countries Both Parties to Phone Calls Were In

In finding the NSA’s metadata collection program legal today, Judge William Pauley III ruled:

The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.

Prior to the September 11th attacks, the National Security Agency (“NSA”) intercepted seven calls made by hijacker Khalid al-Mihdhar, who was living in San Diego, California, to an al-Qaeda safe house in Yemen. 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. Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Investigation (“FBI”) of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.

The Government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world. It launched a number of counter-measures, including a bulk telephony metadata collection program—a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data.

This blunt tool only works because it collects everything. Such a program, if unchecked, imperils the civil liberties of every citizen. Each time someone in the United States makes or receives a telephone call, the telecommunications provider makes a record of when, and to what telephone number the call was placed, and how long it lasted. The NSA collects that telephony metadata. If plumbed, such data can reveal a rich profile of every individual as well as a comprehensive record of people’s associations with one another.

Judge Pauley is uninformed … and he fell for the “big lie” behind NSA spying.

Bill Binney – the high-level NSA executive who created the agency’s mass surveillance program for digital information, senior technical director within the agency who managed thousands of NSA employees, interviewed by CBS, ABC, CNN, New York Times, USA Today, Fox News, PBS and many others –  told Washington’s Blog:

[NSA chief Keith] Alexander wants you and everybody (including this clueless judge) to believe that caller ID does not work. First of all, all the calls that are made in the world are routed by machines. And, with machines, you have to tell them exactly what to do. Which means, the routing instructions calling nr and called nr have to be passed through the machines to route the call to get from point A to point B in the world.

So, he is feeding everyone a line of crap. If you buy into this, I have a bridge I would like to sell.

Also, all calls going from one region of the world to another are preceded by 01 or 011 in region “1” (US/Canada/some islands) or by “00” in the rest of the world. And that goes both ways on any call.

The Public Switch Telephone Network (PSTN) numbering plan is how we could eliminate all US to US calls right up front and never take them in.

In other words, while Binney headed NSA’s global digital communications gathering efforts prior to 9/11, his team knew in real-time which countries calls were made from and received in.  The NSA is lying if it claims otherwise.

ProPublica notes:

There were plenty of opportunities without having to rely on this metadata system for the FBI and intelligence agencies to have located Mihdhar,” says former Senator Bob Graham, the Florida Democrat who extensively investigated 9/11 as chairman of the Senate’s intelligence committee.

These missed opportunities are described in detail in the joint congressional report produced by Graham and his colleagues as well as in the 9/11 Commission report.


Mihdhar was on the intelligence community’s radar at least as early as 1999. That’s when the NSA had picked up communications from a “terrorist facility” in the Mideast suggesting that members of an “operational cadre” were planning to travel to Kuala Lumpur in January 2000, according to the commission report. The NSA picked up the first names of the members, including a “Khalid.” The CIA identified him as Khalid al Mihdhar.

The U.S. got photos of those attending the January 2000 meeting in Malaysia, including of Mihdhar, and the CIA also learned that his passport had a visa for travel to the U.S.


Using their true names, Mihdhar and Hazmi for a time beginning in May 2000 even lived with an active FBI informant in San Diego.


Let’s turn to the comments of FBI Director Robert Mueller before the House Judiciary Committee last week.

Mueller noted that intelligence agencies lost track of Mihdhar following the January 2000 Kuala Lumpur meeting but at the same time had identified an “Al Qaida safe house in Yemen.”

He continued: “They understood that that Al Qaida safe house had a telephone number 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 had this [metadata] program in place at the time we would have been able to identify that particular telephone number in San Diego.”

In turn, the number would have led to Mihdhar and potentially disrupted the plot, Mueller argued.

(Media accounts indicate that the “safe house” was actually the home of Mihdhar’s father-in-law, himself a longtime al Qaida figure, and that the NSA had been intercepting calls to the home for several years.)

The congressional 9/11 report sheds some further light on this episode, though in highly redacted form.

The NSA had in early 2000 analyzed communications between a person named “Khaled” and “a suspected terrorist facility in the Middle East,” according to this account. But, crucially, the intelligence community “did not determine the location from which they had been made.”

In other words, the report suggests, the NSA actually picked up the content of the communications between Mihdhar and the “Yemen safe house” but was not able to figure out who was calling or even the phone number he was calling from.


Theories about the metadata program aside, it’s not clear why the NSA couldn’t or didn’t track the originating number of calls to Yemen it was already listening to.

Intelligence historian Matthew Aid, who wrote the 2009 NSA history Secret Sentry, says that the agency would have had both the technical ability and legal authority to determine the San Diego number that Mihdhar was calling from.

Back in 2001 NSA was routinely tracking the identity of both sides of a telephone call,” [9/11 Commission Executive Director Philip Zelikow] told ProPublica.


There’s another wrinkle in the Mihdhar case: In the years after 9/11, media reports also suggested that there were multiple calls that went in the other direction: from the house in Yemen to Mihdhar in San Diego. But the NSA apparently also failed to track where those calls were going.

In 2005, the Los Angeles Times quoted unnamed officials saying the NSA had well-established legal authority before 9/11 to track calls made from the Yemen number to the U.S. In that more targeted scenario, a metadata program vacumming the phone records of all Americans would appear to be unnecessary.


Richard Clarke, who was the White House counterterrorism czar beginning in 1998 and through 9/11, told ProPublica that the NSA had both the ability and legal authority to trace calls from Mihdhar to Yemen in 2000.

“….Since they had one end of the calls (the Yemen number), all they had to do was ask for any call connecting to it.”

And see this PBS special, and this ACLU comment.

Indeed, the NSA and other U.S. government agencies had been spying on Midhar for a long time before 9/11.

Initially, an FBI informant hosted and rented a room to Mihdhar and another 9/11 hijacker in 2000.

Investigators for the Congressional Joint Inquiry discovered that an FBI informant had hosted and even rented a room to two hijackers in 2000 and that, when the Inquiry sought to interview the informant, the FBI refused outright, and then hid him in an unknown location, and that a high-level FBI official stated these blocking maneuvers were undertaken under orders from the White House.

As the New York Times notes:

Senator Bob Graham, the Florida Democrat who is a former chairman of the Senate Intelligence Committee, accused the White House on Tuesday of covering up evidence ….The accusation stems from the Federal Bureau of Investigation’s refusal to allow investigators for a Congressional inquiry and the independent Sept. 11 commission to interview an informant, Abdussattar Shaikh, who had been the landlord in San Diego of two Sept. 11 hijackers.

Moreover, Wikipedia notes:

Mihdhar was placed on a CIA watchlist on August 21, 2001, and a note was sent on August 23 to the Department of State and the Immigration and Naturalization Service (INS) suggesting that Mihdhar and Hazmi be added to their watchlists.


On August 23, the CIA informed the FBI that Mihdhar had obtained a U.S. visa in Jeddah. The FBI headquarters received a copy of the Visa Express application from the Jeddah embassy on August 24, showing the New York Marriott as Mihdhar’s destination.

On August 28, the FBI New York field office requested that a criminal case be opened to determine whether Mihdhar was still in the United States, but the request was refused. The FBI ended up treating Mihdhar as an intelligence case, which meant that the FBI’s criminal investigators could not work on the case, due to the barrier separating intelligence and criminal case operations. An agent in the New York office sent an e-mail to FBI headquarters saying, “Whatever has happened to this, someday someone will die, and the public will not understand why we were not more effective and throwing every resource we had at certain ‘problems.’” The reply from headquarters was, “we [at headquarters] are all frustrated with this issue … [t]hese are the rules. NSLU does not make them up.”

The FBI contacted Marriott on August 30, requesting that they check guest records, and on September 5, they reported that no Marriott hotels had any record of Mihdhar checking in. The day before the attacks, the New York office requested that the Los Angeles FBI office check all local Sheraton Hotels, as well as Lufthansa and United Airlines bookings, because those were the two airlines Mihdhar had used to enter the country. Neither the Treasury Department’s Financial Crimes Enforcement Network nor the FBI’s Financial Review Group, which have access to credit card and other private financial records, were notified about Mihdhar prior to September 11.


Army Lt. Col. Anthony Shaffer and Congressman Curt Weldon alleged in 2005 that the Defense Department data mining project Able Danger identified Mihdhar and 3 other 9/11 hijackers as members of an al-Qaeda cell in early 2000.

We reported in 2008:

As leading NSA expert James Bamford – the Washington Investigative Producer for ABC’s World News Tonight with Peter Jennings for almost a decade, winner of a number of journalism awards for coverage national security issues, whose articles have appeared in dozens of publications, including cover stories for the New York Times Magazine, Washington Post Magazine, and the Los Angeles Times Magazine, and the only author to write any books (he wrote 3) on the NSA – reports, the NSA was also tapping the hijackers’ phone calls inside the U.S.

Specifically, hijackers Khalid al-Mihdhar and Nawaf al-Hazmi lived in San Diego, California, for 2 years before 9/11. Numerous phone calls between al-Mihdhar and Nawaf al-Hazmi in San Diego and a high-level Al Qaeda operations base in Yemen were made in those 2 years.

The NSA had been tapping and eavesdropping on all calls made from that Yemen phone for years. So NSA recorded all of these phone calls.

Indeed, the CIA knew as far back as 1999 that al-Mihdhar was coming to the U.S. Specifically, in 1999, CIA operatives tailing al-Mihdhar in Kuala Lumpur, Malaysia, obtained a copy of his passport. It contained visas for both Malaysia and the U.S., so they knew it was likely he would go from Kuala Lumpur to America.

NSA veteran Bill Binney previously told Washington’s Blog:

Of course they could have and did have data on hijackers before 9/11. And, Prism did not start until 2007. But they could get the data from the “Upstream” collection. This is the Mark Klein documentation of Narus equipment in the NSA room in San Francisco and probably other places in the lower 48. They did not need Prism to discover that. Prism only suplemented the “Upstream” material starting in 2007 according to the slide.

Details here and here.

Another high-level NSA whistleblower – Thomas Drake – testified in a declaration last year that an NSA pilot program he and Binney directed:

Revealed the extent of the connections that the NSA had within its data prior to the [9/11] attacks. The NSA found the array of potential connections among the data that it already possessed to be potentially embarrassing. To avoid that embarrassment, the NSA suppressed the results of the pilot program. I had been told that the NSA had chosen not to pursue [the program] as one of its methods for combatting terrorism. Instead, the NSA had previously chosen to delegate the development of a new program, named “Trailblazer” to a group of outside contractors.

Moreover, widespread spying on Americans began before 9/11 (confirmed here, here, here, here and here.

And U.S. and allied intelligence heard the 9/11 hijackers plans from their own mouths:

  • The National Security Agency and the FBI were each independently listening in on the phone calls between the supposed mastermind of the attacks and the lead hijacker. Indeed, the FBI built its own antenna in Madagascar specifically to listen in on the mastermind’s phone calls
  • According to various sources, on the day before 9/11, the mastermind told the lead hijacker “tomorrow is zero hour” and gave final approval for the attacks. The NSA intercepted the message that day and the FBI was likely also monitoring the mastermind’s phone calls
  • According to the Sunday Herald, two days before 9/11, Bin Laden called his stepmother and told her “In two days, you’re going to hear big news and you’re not going to hear from me for a while.” U.S. officials later told CNN that “in recent years they’ve been able to monitor some of bin Laden’s telephone communications with his [step]mother. Bin Laden at the time was using a satellite telephone, and the signals were intercepted and sometimes recorded.” Indeed, before 9/11, to impress important visitors, NSA analysts would occasionally play audio tapes of bin Laden talking to his stepmother.
  • And according to CBS News, at 9:53 a.m on 9/11, just 15 minutes after the hijacked plane had hit the Pentagon, “the National Security Agency, which monitors communications worldwide, intercepted a phone call from one of Osama bin Laden’s operatives in Afghanistan to a phone number in the former Soviet Republic of Georgia”, and secretary of Defense Rumsfeld learned about the intercepted phone call in real-time (if the NSA monitored and transcribed phone calls in real-time on 9/11, that implies that it did so in the months leading up to 9/11 as well)

But even with all of that spying, the government didn’t stop the hijackers … even though 9/11 was entirely foreseeable.  Moreover, the entire “lone wolf” theory for mass surveillance is false.  In reality, 9/11 was state-backed terror.

As such, blaming 9/11 on a lack of ability of the NSA to spy is wholly false.

As TechDirt notes:

The [court’s] footnote refers to the 9/11 Commission Report whose findings directly contradict this narrative. The problem was not that the information wasn’t there. It was that it wasn’t shared. It was the fact that the CIA lost al-Mihdhar, but rather than issue an alert or place him on a watch list, it chose to do nothing. Many things went wrong, but not having the intel wasn’t the issue.

Indeed, the Boston Bombing proves that mass surveillance isn’t what’s needed.  Even though the alleged Boston bombers’ phones were tapped – and NBC News reports, “under the post-9/11 Patriot Act, the government has been collecting records on every phone call made in the U.S.”mass surveillance did not stop the other terror attack on U.S. soil since 9/11.

In reality – despite the government continually grasping at straws to justify its massive spying program – top security experts say that mass surveillance of Americans . Indeed, they say that mass spying actually hurts U.S. counter-terror efforts (more here and here).

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  • Tonto

    This was predictable from the start of the media push on the topic of the legality of NSA spying. Remember?


    Judge Richard Leon in effect moved the Constitutional goal post, by implying that were there evidence of actually stopping an imminent attack, or, otherwise were it shown that these invasions of privacy aided the Government in achieving any objective that was time-sensitive in nature, that there were revelations immediately useful, or if there was some proven efficacy of the metadata collection program as a means of conducting time-sensitive investigations, then (with this entirely new and made-up position of the Constitutional goal posts) a court COULD rule these obvious violations of the U.S. Constitution -legal-.

    It took no more than two weeks for some scumbag federal court judge to do exactly that. The scumbag judge who did it is Judge William Pauley III, who obviously wants to be appointed to the Supreme Court.

    This is a constuctionist’s view of how to justify NSA spying under the Constitution. This sort of judicial constructionism, making new law, has been going on since the first days of our Republic.

    The law doesn’t mean anything. The law is just a mealy-mouthed mechanism whereby rationalizations are given for the things that do happen, ex post facto.

    And when I say the law doesn’t mean anything, that is exactly what I mean. There is no equal application under the law. The law is only what gets applied. And what gets applied is up to the decision of those who apply the law. They use guns and handcuffs, subpoenas, warrants, sheriffs, and court orders. And they make up the law as they go along.

    I’m sorry, folks. But stop complaining. Complaining makes about as much sense as arguing with the weather. You were all duped-indoctrinated in elementary school into believing that the law actually meant something. The truth is like this. There is a very real difference between hearing a story about a man being stabbed through the heart, and actually seeing it done. The difference is extremely vast. The same is true about having a brush with the “law”.

    Reality is infinitely complex. As Lao Tse said, even though you may hear the cock crow on the other side of the hill your entire life, never go there.

    Why did Lao Tse say that? Because Lao Tse realized men are imminently evil at every turn. And that evilness in men completely encompasses all these god-damned, commonplace, scientific-humanitarian belly-wailers who want to change the world, while trying to impress upon us that they have figured out all the infinite complexity of reality, so things, the things they are wailing about, will make things work out just fine.

    Trust them, and you are guarantied to continue to degrade the world exactly as it continuously has been degraded since the very first scientific shaman painted his face, donned his horned hat and shook his feathered rattle while murmuring his incantations meant only to make devil knowledge rise in men.

    Don’t listen to these scientific-humanitarian belly-wailers. They are liars, just like all the rest.

  • max

    Why assume there was any honesty to the process? Why assume his opinion made any difference? At this juncture in history, we should assume blackmail or other shenanigans (such as Zio-firsters) until otherwise proven. The court system is a joke. Elections are a joke. Our government is a joke.

    • Tonto

      Damned right. There’s no honesty in jurisprudence at all. It’s a completely criminal affair.

      The government claimed because equity trades are private and confidential affairs that it could not disclose or discover who placed all the short positions taken up just before 9-11, even though these market orders were recorded in numerous locations and in redundant, numerous even different kinds of file systems. The markets paid out BIG TIME on these short orders when the positions were covered days later. And still no disclosure was made or discovered concerning who made these criminal trades.

      But of course now when it comes to justifying NSA surveillance after the fact, there’s no problem with anyone’s right to privacy, or the unwarranted searches for evidence and illegal seizures of private data.

      The American dossier system of justice is meant to accumulate and allow the manufacture fake evidence so virtually anyone can be prosecuted for virtually any crime imaginable.

      The crime is obvious. And their hubris is rank. Every judge in the country is nothing less than a local warlord with completely criminal intent.

    • Tonto

      Using 9-11 to justify NSA is like using global warming to justify the government taking fuel out of your oil tank.

      Oh, and by the way, here in northern Maine we are moving into a temperature range of -30F for overnight lows, and -15F for day time highs. AIn’t global warming a bitch? It looks like a pretty standard northern Maine winter to me. We’ve had over 40 inches of powdery snow thus far. The towns are out grooming the snowmobile trails. Snowmobiling hasn’t been this good in December in a least a dozen years.

      And as far as anyone signing up for the Affordable Care Act, I want everyone to know, locally the human resources benefits administrator at work just got let go, because the company can no longer afford to provide medical insurance for their employees. You’re on your own with ObamaCare. The deductible and the co-pay are enough to kill anyone.

      It’s these god-damned reformers who make all the trouble. It is impossible to legislate anything that is affordable. Everyone knows this intuitively, but still these reform-minded clowns re-elected Obama on a promise of affordable care and ending the wars.

      And Carl Herman and David Swanson’s pledges to end war and poverty are no different. Stop listening to these nefarious reform preachers. Their “solutions” are just like all the other solutions that have been stuffed up our asses by government. Lies and liars are as common as telephone poles.

      • nels

        David Swanson is a total fraud – probably a government paid pretend dissident. All dissidents, progressives, antiwar activitists who support the government story on 9/11 should be shunned.

  • gozounlimited

    Here we have a man that wants to avoid Satan’s Demons and Hell…… He’s in early in the five month Satanic Affliction……

    University of Iowa law professor believes the legal ramifications of of geo-engineering need to be thought through in advance and a global governance structure put in place soon to oversee these efforts.

  • One has to wonder if it’s not time to return to carrier pigeons…

  • cettel

    TO THE AUTHOR OF THIS BLOG-POST: You concentrate on the Mihdhar case, but that case wasn’t among the ones that Judge Pauley cited as examples of ones where blanket access to all metadata had been necessary in order to stop a planned terrorist attack. You should have focused on one or more of the cases that he did discuss.

    Furthermore, it’s not sufficient for the NSA to have metadata only on international calls such as you claim. A terrorist inside the US may be working with other US individuals who might not be in telephone contact with Al Qaeda operatives abroad. The Government needs to know about all members of the ring, not only about the ones who are directly communicating with the foreign terrorists.

    • Robert Barsocchini

      Well, you are 100% wrong. Stupid or liar?

      “Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the [FBI] of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.”

      That’s quoted from Pauley’s opinion. It’s in the very beginnng. So he did the exact opposite of what you just claimed.

      Stupid or liar?

      If you are just stupid, you should be ashamed that you didn’t think to just take a second to look into what you are mindlessly defending.

      I’ll just lay out a relevant part of the article for you so you don’t have to look at too many words:

      “[NSA chief Keith] Alexander wants you and everybody (including this clueless judge) to believe that caller ID does not work. First of all, all the calls that are made in the world are routed by machines. And, with machines, you have to tell them exactly what to do. Which means, the routing instructions calling nr and called nr have to be passed through the machines to route the call to get from point A to point B in the world.

      So, he is feeding everyone a line of crap. If you buy into this, I have a bridge I would like to sell.

      Also, all calls going from one region of the world to another are preceded by 01 or 011 in region “1″ (US/Canada/some islands) or by “00″ in the rest of the world. And that goes both ways on any call.

      The Public Switch Telephone Network (PSTN) numbering plan is how we could eliminate all US to US calls right up front and never take them in.”

      But yeah, you can keep believing that the USA needs to spy on you to an even greater extent to “keep you safe”.

      Guess you haven’t noticed that everyone now admits the NSA has stopped zero terrorist attacks and is “non-essential” for this purpose.

      But what has the NSA been very good at? Cheating on behalf of US corporations.

      Why don’t you just move to one of the US’s satellite dictatorships, you King George bootlicker? You can get all the authoritarianism you want. We’ll be here working on protecting the civil liberties that people have fought, killed, and died for.

      You want to stop terrorist attacks against the USA? Help make the USA into a country that obeys international law and respects democracy, instead of a fascist authoritarian outlaw nation.

      Historical data show a strong connection between US involvement in international situations and an increase in terrorist attacks against the United States. – US Department of Defense


  • Robert Barsocchini

    I put together a list (with details and sources) of some examples of how the USA uses spying to execute people en masse, torture, terrorize, and “neutralize” people, here:


    And they are telling us to let them INCREASE the extent that they can spy on us, the citizens of the world.

    Nice try.


  • Washington76

    “A democracy is always temporary in nature; it simply cannot exist as a permanent form of government. A democracy will continue to exist up until the time that voters discover they can vote themselves generous gifts from the public treasury. From that moment on, the majority always votes for the candidates who promise the most benefits from the public treasury, with the result that every democracy will finally collapse due to loose fiscal policy, which is always followed by a dictatorship.”

    Alexander Tytler 1797

    The best argument against democracy is a five-minute
    conversation with the average voter. Winston Churchill

    Democracy as envisioned by the Greeks was one land owner one vote. Look what we have today!

  • steve

    youtube truth for 911. Like MOST media, they have not let the truth of 911 come out.

  • jongold

    Here’s an article I just wrote on the subject GW. I was not aware that you had already “broken” the story. http://cindysheehanssoapbox.blogspot.com/2014/08/nsa-lied-about-knowledge-of-2-hijackers.html