Using a Would-Be Subway Bomber to Justify Sweeping Surveillance By MICHAEL POWELL
Najibullah Zazi, coffee vendor, is such a useful captured terrorist.
Question why the New York Police Department sends undercover "crawlers" to monitor mosques and Muslim students, and the department's partisans point to Mr. Zazi. How do you think, they ask, we caught that Queens kid who was ready to blow up subway cars in 2009?
Last week, the Obama administration laid its own claim to Mr. Zazi's scalp.
Under fire for covertly harvesting phone calls and e-mails of millions and for peering under our electronic covers, they pointed by way of self-defense to the imprisoned terrorist.
Without Prism, the Internet surveillance program, they say, we never would have brought him and his co-conspirators to earth. "That's how a program like this is supposed to work," a senior intelligence official told my colleagues at The New York Times.
The Police Department's claim is more easily disposed of. A former civilian police official has argued that the department was a key player in this investigation and implied that its Man at Scotland Yard played a role.
This is fanciful. That officer in Britain played no known role. And the decision of police officers to question an imam in Queens without the knowledge of the Federal Bureau of Investigation nearly capsized the case, as that imam tipped off Mr. Zazi's father that his son was under investigation.
The Obama administration's claim is more complicated, and comes accompanied by question marks. The case had its origins in Britain, where intelligence officials captured a terrorism suspect, examined his laptop and found the e-mail address of a Qaeda operative.
They alerted American intelligence officials, and analysts began monitoring that e-mail address. Months later, Mr. Zazi, unsure of his bomb-making recipe, sent an electronic message to that member of Al Qaeda, and the federal government began to chase Mr. Zazi in earnest. (Much of this is documented by the Associated Press reporters Adam Goldman and Matt Apuzzo in their forthcoming book, "Enemies Within.")
The Obama administration and its partisans assert that this victory results from their greatly enhanced electronic ears and eyes. (They do not agree on some facts: Senator Dianne Feinstein, Democrat of California, claimed that harvesting telephone records rather than e-mails did the trick; this appears to be inaccurate. The director of national intelligence, James R. Clapper Jr., asserted that investigators "found backpacks with bombs"; the bombs were partly made and there were no backpacks.)
It's not clear, however, why the administration needed to run its scythe across millions and millions of e-mails to find Mr. Zazi. The government has long possessed the ability to go to secret intelligence courts and receive warrants to monitor particular e-mail and phone accounts. These courts are sympathetic to government lawyers, rejecting petitions with about the same frequency that Mets hitters knock in a run; from 1978 to 2012, the courts turned down 11 of 34,000 requests.
The capture of Mr. Zazi and his friends - on its face - registers as traditional spy craft and police work.
That said, I should cut quickly to the weak underbelly of my argument.
Government has an ever-growing ability to peer into what we once thought of as our intimate lives. Harvest enough phone records, study enough e-mail patterns, eavesdrop on enough conversations, and eventually its net will dredge up nasty fellows who wish us only ill.
But what becomes of the society that allows its fishermen to cast such nets?
"There's no question, at least in the criminal context, that we'd solve a lot of crime if we allowed government to search everyone's house," noted Mark Rumold, a staff lawyer with the Electronic Frontier Foundation, which has opposed such intrusions.
Honesty is required here. In this city not so long ago, two towers fell and thousands of loved ones perished. In the weeks after those attacks, I shared the anger that swept us toward war in Afghanistan. The yearning to ensure our families' safety was powerful.
I placed a call to Faiza Patel, a top official at the Brennan Center for Justice, which has fought police spying and stop-and-frisk tactics.
Pakistani-born and Harvard educated, she is a passionate human rights lawyer and, like most New Yorkers, rarely stays her tongue.
And yet she worries. If she is researching jihadi Web sites, she is careful to do so at her office rather than at home, where the work might trip an electronic intelligence wire. "If people are afraid, if you chill dissent, you chill basic rights," she says. "We talk of individual rights, but really it's about the freedom of a democracy."
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