Why Didn’t The Government Stop The San Bernardino Attacks? More Surveillance Is NOT The Answer

California Civil Liberties Advocacy

December 7, 2015

On December 2nd, 2015, armed with semi-automatic rifles and pipe bombs, Syed Rizwan Farook and his wife, Tashfeen Malik, walked in to the Inland Regional Center in San Bernardino, CA and opened fire on his co-workers, killing 14 people and leaving an additional 21 injured. Farook’s co-workers were attending a holiday party for the environmental health department. Shortly afterward, links to the notorious terrorist group ISIS were discovered by law enforcement in the still-pending investigation. Within days, ISIS claimed responsibility for the attacks. Farook was an American-born citizen raised in California and, according to the FBI, had traveled to Saudi Arabia, most recently to marry Malik, whom he’d met online through a dating service. Malik was born in Pakistan and came to the United States on a fiancée visa. U.S. officials have claimed that Malik posted a pledge of allegiance to ISIS on her Facebook page. Co-workers said that Farook was friendly and never exhibited signs of extremism. All of this has left a nation in shock and bewilderment. Could this attack have been prevented? If so, why wasn’t it? Is government surveillance the answer? Has surveillance worked thus far? Why didn’t government surveillance prevent the San Bernardino attack?

Immediately following the terrorist attacks that occurred on the World Trade Center and the Pentagon on September 11th, 2001, the Bush administration worked feverishly to jam the Patriot Act through Congress. According to the bill’s author, Jim Sensenbrenner (R-WI), a copy of the first draft was submitted to him for review literally just days after the attacks.[1] The bill was signed into law on October 26th, 2001.[2] Included in the provisions of the Patriot Act were the now-infamous Section 215, used to authorize the NSA’s bulk collection of telephone records and cellphone metadata[3]; Section 206, which authorizes federal agents to employ “roving wiretaps” that target a range of suspects’ communication methods instead of just a single device[3]; and Section 6001 of the 2004 Intelligence Reform and Terrorism Prevention Act, often referred to as the “lone wolf” provision, which grants the FBI the authority to eavesdrop on non-U.S. individuals who are also not affiliated with any foreign power but who may be affiliated with a terrorist group.[4]The Patriot Act was set to expire this year, but have these programs proved at all successful?

According to former CIA analyst Frederick Fleitz, yes — these provisions of the Patriot Act have been very successful, enabling the government to stop three potential terror plots. Citing the remarks of Senator Dianne Feinstein (D-CA) during a Judiciary Committee hearing, Fleitz claims that the Section 215 program “helped stop the terrorist plots to bomb the New York City subways, the New York stock exchange, and a Danish newspaper.”[5] Unfortunately, this view is somewhat convoluted.

First of all, the New York City subway plot was disrupted via PRISM, another NSA program used to conduct mass surveillance on internet communications[6], which is a whole other problem.[7] As for the New York Stock Exchange plot, the whole ordeal turned out to be tantamount to an internet scam in which a wannabe jihadist ended up giving lots of money to a terrorist group in Yemen, along with cut-and-paste articles from Wikipedia about the New York Stock Exchange.[6] And the suspect in the Danish newspaper plot was actually a convicted drug smuggler who allegedly became a spy for the Drug Enforcement Administration in Pakistan in the late 1990s. In 2002 and 2005, the suspect had been arrested for domestic violence and his wife claimed to counterterror investigators that he had been training with terrorist groups in Pakistan, though he was never interviewed or placed on a watch list. In 2007, another wife of the suspect told officials at the U.S. embassy in Islamabad that he was a terrorist and a spy. U.S. officials again failed to question or monitor him. In 2009, a tip from the suspect’s family’s friend came to the FBI that he had been involved in the Mumbai attacks. The FBI subsequently questioned one of the suspect’s cousins who lied and told the agents that he was in Pakistan when he was actually in Chicago. The cousin then alerted the suspect to the FBI inquiry, who then proceeded with his travel plans to Denmark and India, where he met with Al-Qaeda leaders. After all of that, U.S. authorities only caught up with the suspect on a tip from British intelligence.[6]

If the foregoing is the strongest evidence in support of mass-surveillance programs then it impels one to ask just how effective these programs have been in thwarting the last 20 or so terrorist attacks since the Patriot Act became law in 2001? (For example, see the list of terrorist attacks at the end of this article.) Evidently, they have not been effective at all, otherwise those attacks would never have occurred. For instance, the Beltway Sniper Attacks in the Washington D.C. area, the Times Square Bombing, the Fort Hood Shooting, the Boston Marathon Bombing, the Charleston Church Shooting, or the Chattanooga Military Shootings. All the more interesting is that the FBI has recently stated that they have never cracked any major terrorism cases by utilizing the programs established by the Patriot Act.[8] According to Inspector General Michael Horowitz, “the FBI tripled its use of bulk collection under Section 215 of the Patriot Act” between 2004 and 2009, yet “the agents we interviewed did not identify any major case developments that resulted from use of the records obtained in response to Section 215 orders.”[8] Nevertheless, just after the Paris Attacks on November 15th, 2015, CIA director John Brennan called for even more digital surveillance and blamed civil liberties advocates for “‘handwringing’ over U.S. surveillance programs as an obstacle to catching terrorism suspects.”[9] It seems that the government wants its citizens to believe that that “if you’ve got nothing to hide, you’ve got nothing to fear.”[10] But legal scholar Daniel J. Solove has pointed out that this argument is fallacious because it assumes that privacy involves hiding only bad things.[10] Solove argues that “Surveillance can create chilling effects on free speech, free association, and other First Amendment rights essential for democracy,” and that “even surveillance of legal activities can inhibit people from engaging in them.”[10]

Nevertheless, conservative politicians are already blaming civil liberties advocates for the San Bernardino shooting, implying that the attack is somehow directly attributable to the termination of the Patriot Act. At a Republican Jewish Coalition presidential summit, candidates unashamedly attacked fellow candidate Senator Rand Paul (R-KY) (who was not present at the event because of legislative duties in Congress), blaming him for the shooting, along with the other senators who ended the mass surveillance program.[11] Governor Chris Christie implied that Paul and the other senators were incompetent by claiming they did not understand how the Patriot Act works, while former Hewlett-Packard CEO Carly Fiorina drew attention to the fact that the program ended just days before the San Bernardino shootings.[11] Rick Santorum made the most explicit accusation when responding to a question as to whether the attacks had discredited civil liberties advocates: “if there were [communications between the assailants and ISIS contacts], and because of ending the metadata collection program we were not able to detect it, that proves the point — that we need to use all means necessary.”[11]

Indeed, the sun did set upon the mass surveillance programs on November 28th — just four days before the shootings.[12] But phone records are still available as far back as at least three to five years, meaning that if there were any communications between the San Bernardino shooters and terrorist organizations (such as ISIS) prior to November 29th, it is inferable that those communications should have been detected. Or is the public expected to believe that the couple only recently made contact with ISIS, pledged allegiance, and received their orders within the span of 3 or 4 days? This would not seem to comport with the reports of pipe bombs, guns, “and thousands of rounds of ammunition” found in the couple’s home.[13] So why was the government incapable of stopping this act of terrorism? According to attorney Stephen Kohn, an advocate for government whistleblowers, “bulk data collection creates false leads, ties up investigative resources and, essentially, undermines national security.”[8] Instead of just searching for a needle in a haystack, in a sense, the government is creating mountains and mountains of haystacks. But increasing the size of a haystack doesn’t make it any easier to find the needle. In addressing the Paris attacks, Congressman Sensenbrenner—the Patriot Act’s author—recently admonished the European Union against dragnet responses to terrorism.[1] Sensenbrenner has become critical of the Patriot Act and mass surveillance, claiming that it was never intended to evolve into such a program, stating that “the dragnet collection of millions of Americans’ phone records every day — whether they have any connection at all to terrorism — goes far beyond what Congress envisioned or intended to authorize,” and that it “must stop.”[1] Instead, Sensenbrenner asserts that “the answer is to target the people which you know are up to bad stuff rather than bringing in the 99.8 percent of the inhabitants there, including the vast majority of followers of Islam, who have no intention whatsoever of conducting a terrorist attack.”[1]

The crucial question, then, is not whether citizens have anything to hide — that debate is essentially a red herring intended to dodge the issue. Nor does the question pertain to why the government can’t stop terrorist attacks like the San Bernardino shootings. No, the crucial question is why the government thinks it needs to collect mountains of information about its own citizens when this practice is clearly NOT accomplishing its intended purpose — thwarting terrorists. Perhaps better solutions are within reach, solutions that do not require violating the constitutionally protected privacy and due process rights of every person in the United States. But it is certainly clear that mass surveillance is NOT the solution and, in fact, never was the solution. If anything, mass surveillance is nothing more than a decade-and-a-half long experiment that has failed to stop more than 20 terrorist attacks on U.S. soil. Perpetuating these programs calls to mind the oft- invoked cliché that the definition of insanity constitutes doing the same thing over and over again and expecting different results.

Terrorist Attacks in the U.S. since 9/11

  • October 2002 Beltway Sniper Attacks. Two members of the Nation of Islam went on a shooting spree over the course of a few months that left 10 people dead and 3 critically injured in Washington D.C., Baltimore, and Virginia. The suspects were also believed to be involved in shootings throughout Maryland, Alabama, Arizona, Georgia, Louisiana, and Washington state.[14]
  • May 2003 Ohio Highway Sniper Attacks. Over 24 sniper attacks along I-270 in Ohio, left 1 dead.[15]
  • March 2006. A Muslim extremist drove an SUV into a group of pedestrians at UNC-Chapel Hill to “avenge deaths or murders of Muslims around the world.”[16]
  • July 2006 Seattle Jewish Federation shooting. A U.S. citizen of Pakistani descent shoots 6 people, leaving 1 dead and 5 wounded. The shooter said he was “a Muslim-American angry at Israel.”[17]
  • 2008 Times Square Bombing. A homemade bomb similar to ones known in Iraq and Afghanistan war zones damaged a Recruiting Building. The FBI and New York City police offered a $65,000 reward for information in the case.[18]
  • 2008 San Diego Bombings. In May, multiple pipe bombs exploded in the early morning at the Edward J. Schwartz United States Courthouse damaging the entrance and lobby, sending shrapnel two blocks away. An explosion at the FedEx building occurred about a week earlier.[19]
  • June 2009 Army/Navy Career Center Shooting. An Islamic extremist shot and killed a recruiter and wounded another in Little Rock, AR. The shooter had links to Al-Qaeda.[20]
  • November 2009 Fort Hood Shooting. A US Army Major serving as a psychiatrist opens fire at Fort Hood, TX, killing 13 and wounding 29 others. At trial, the shooter stated his motive was to fight “illegal and immoral aggression against Muslims.”[21]
  • February 2010 Austin Suicide Attack. A pilot flew his single-engine plane into an IRS building in Austin, TX killing himself and one IRS employee. 13 others were injured. The pilot left a suicide note comparing the IRS to “Big Brother” from the novel 1984.[22]
  • August 2012 Wisconsin Sikh Temple Shooting. Six people were killed and three injured, including a police officer, when a 40-year-old white supremacist opened fire. He killed himself after being wounded by police.[23]
  • April 2013 Boston Marathon Bombing. Two Russian immigrant brothers of Chechen ethnicity exploded home-mode bombs at the Boston Marathon, killing 3 people and injuring over 180 others. A campus police officer was killed in his squad car that night at MIT. A massive police chase and shootout ensued, leaving one of the brothers dead. A note was found indicating the bombings were in retaliation for the wars in Iraq and Afghanistan, though the two were never linked to terrorist organizations.[24]
  • April 2013 Ricin Letters. A man mailed letters laced with the deadly toxin ricin to President Obama, Republican Senator Roger Wicker, and a Mississippi state court judge. The letters to the president and the senator were intercepted, but the letter to the judge was delivered. No injury occurred.[25]
  • May 2013 Ricin Letters. A woman from Texas mailed ricin-laced letters to President Obama and New York City mayor Michael Bloomberg. The letters were intercepted without incident.19
  • November 2013 LAX Shooting. A man who believed in the New World Order conspiracy theory opened fire in the Los Angeles International Airport, killing 1 TSA officer and injuring 6 others.[26]
  • December 2013 Witchita Airport Bombing Attempt. A 58-year-old avionics technician attempted a suicide bombing at Wichita Mid-Continent Airport after becoming radicalized by Islamic material on the web. He was arrested while driving a vehicle into the airport with an explosive device.[27]
  • April 2014 Overland Park Jewish Community Center Shooting. A neo-Nazi opened fire in a pair of shootings in Overland Park, KS. Three people died in the shootings.[28]
  • June 2014 Las Vegas Shootings. A married couple with anti-government views gunned down 2 police officers and 1 civilian before killing themselves. After killing the two police officers, the couple placed a “Don’t Tread on Me” flag and a Nazi swastika over the bodies.[29]
  • October 2014 New York City Hatchet Attack. An Islamic extremist injured two New York City police officers in Queens when he struck them with a hatched as they posed for a photograph.[30]
  • May 2015 Curtis Culwell Center Attack. Two gunmen opened fire outside the Curtis Culwell Center in Garland, TX during a “Draw Mohammed” contest. Both gunmen were killed by police but ISIS took credit for the attack via Twitter.[31]
  • June 2015 Charleston Church Shooting. A 21-year-old white supremacist opened fire in the African Methodist Episcopal Church in Charleston, SC, where 9 people were killed, including the senior pastor and a state senator, and 1 person was injured.[32]
  • July 2015 Chattanooga Military Shootings. An Islamic extremist in Chattanooga, TN committed a drive-by shooting at a recruiting center and then traveled to a naval reserve center and opened fire, where 4 Marines were killed and another Marine, a Navy sailor, and a police officer were wounded. The sailor later died from his injuries. The shooter was killed by police in a gunfight. The shooter had made several trips to the Middle East and his father had been investigated by the Joint Terrorism Task Force in the 1990s.[33]

[1] Oreskes, Benjamin. “Patriot Act Author Warns EU against Dragnet Response to Terror.” POLITICO.
December 03, 2015.

[2] U.S. Government Printing Office. “107th Congress Public Law 56.”

[3] Associated Press. “A Look at the Expiring Surveillance Provisions.” Yahoo! May 31, 31.

[4] DeRosa, Mary. “Patriot Debates: Lone Wolf.” American Bar Association.

[5] Fleitz, Fred. “NSA Data Collection: Necessary, or Unconstitutional?” National Review. May 11, 2015.

[6] Friedersdorf, Conor. “The Last Defenders of the NSA.” The Atlantic. May 19, 2015.

[7] Gellman, Barton, and Laura Poitras. “U.S., British Intelligence Mining Data from Nine U.S. Internet Companies in Broad Secret Program.” Washington Post. December 05, 2015.

[8] Ybarra, Maggie. “FBI Admits No Major Cases Cracked with Patriot Act Snooping Powers.” Washington Times. May 21, 2015.

[9] Peterson, Andrea, and Brian Fung. “Paris Attacks Should Be ‘wake up Call’ for More Digital Surveillance, CIA Director Says.” Washington Post. November 16, 2015.

[10] Solove, Daniel J. “‘I’ve Got Nothing to Hide’ and Other Misunderstandings of Privacy.” San Diego Law Review 44 (January 12, 2007): 745-72.

[11] Weigel, David. “A Day after the San Bernardino Shootings, GOP Candidates Talk of a Terror War at Home.” Washington Post. December 3, 2015.

[12] Bridis, Ted. “US Can’t Access NSA Phone Records in California Terror Case.” Yahoo! Tech. December 5, 2015.

[13] Welch, Sarah. “ISIS Describes San Bernardino Shooters As ‘Supporters’ of Terror Group.” KTLA. December 5, 2015.

[14] “The Beltway Snipers, Part 1.” FBI. October 22, 2007; Kennedy, Helen. “Beltway Sniper Caught with Weapon in Maryland in 2002.” NY Daily News. October 23, 2015.

[15] Associated Press. “Ohio Highway Sniper Receives 27-year Sentence.” USA Today. August 09, 2005.

[16] Fausset, Richard. “SUV Attack Prompts Debate Over `Terrorism’ and Islam.” Los Angeles Times. March 07, 2006.

[17] “Fatal Shooting at Seattle Jewish Federation.” ADL. January 31, 2006. Accessed December 05, 2015.

[18] “FBI, NYPD Offer $65G Reward in Unsolved ’08 Times Square Bombing.” Fox News. June 18, 2013.

[19] Gross, Greg. “FBI: Courthouse Bomb Was Simple, but Deadly.” San Diego Union-Tribune. May 5, 2008.

[20] “No Bail for Suspect in Recruiter Killing.” UPI. June 2, 2009. Accessed December 05, 2015.

[21] Associated Press. “Fort Hood Shooter Nidal Hasan Sentenced to Death for Killing 13 Soldiers.” The Guardian. August 28, 2013.

[22] Maskaly, Michell. “Pilot Crashes Into Texas Building in Apparent Anti-IRS Suicide.” Fox News. February 18, 2010.

[23] Stanglin, Douglas. “FBI Says Gunman in Sikh Shootings Killed Himself.” USA Today. August 08, 2012.

[24] “Boston Marathon Bombings.” History.com. Accessed December 05, 2015.

[25] Williams, Pete. “Woman Who Mailed Ricin Letters to Obama Sentenced to 18 Years.” NBC News. July 16, 2014.

[26] Associated Press. “LAX Shooting Kills TSA Officer, Wounds Others.” CBSNews. November 1, 2013.

[27] “Kansas Man Sentenced in Plot to Explode Car Bomb at Wichita Mid-continent Airport.” Kansas City InfoZine. September 1, 2015.

[28] Smith, DeAnn, and Laura McCallister. “Man Yells ‘Heil Hitler’ after Fatally Shooting 3 at Jewish Centers.” Man Yells ‘Heil Hitler’ after Fatally Shooting 3 at Jewish Sites. June 30, 2014.

[29] Pearson, Michael, Saeed Ahmed, and Kevin Conlon. “Sheriff’s Office: Las Vegas Couple Saw Police as Oppressors.” CNN. June 10, 2014.

[30] Kearney, Laila. “NYC Police Say Hatchet Attack by Islam Convert Was Terrorism.” Reuters. October 24, 2014.

[31] Yan, Holly. “ISIS Claims Responsibility for Garland, Texas, Shooting.” CNN. May 5, 2015.

[32] Phelps, Timothy M. “Dylann Roof Indicted on Federal Hate-crime Charges in Charleston Church Shooting.” LA Times. July 22, 2015.

[33] “Revealed: Chattanooga Marine Killer Made Mystery Seven-month Pilgrimage to Jordan and His Father Was Investigated for Funding Terrorism.” DailyMail. July 16, 2015.