Citizens' Issues
Defenders of NSA surveillance omit most of Mumbai plotter’s story

Officials say National Security Agency intercepts stopped David Coleman Headley's planned attack in Denmark, but sources say a tip from the British led to his capture after the US failed for years to connect multiple reports of terror tie

June 12:
This story has been updated with NSA Director Gen. Keith Alexander's Senate testimony on surveillance.
 

Defending a vast program to sweep up phone and Internet data under antiterror laws, senior U.S. officials in recent days have cited the case of David Coleman Headley, a key plotter in the deadly 2008 Mumbai attacks.
 

James Clapper, the director of national intelligence, said a data collection program by the National Security Agency helped stop an attack on a Danish newspaper for which Headley did surveillance. And Sen. Dianne Feinstein, D-Calif., the Senate intelligence chairwoman, also called Headley's capture a success.
 

But a closer examination of the case, drawn from extensive reporting by ProPublica, shows that the government surveillance only caught up with Headley after the U.S. had been tipped by British intelligence. And even that victory came after seven years in which U.S. intelligence failed to stop Headley as he roamed the globe on missions for Islamic terror networks and Pakistan's spy agency.
 

Supporters of the sweeping U.S. surveillance effort say it's needed to build a haystack of information in which to find a needle that will stop a terrorist. In Headley's case, however, it appears the U.S. was handed the needle first — and then deployed surveillance that led to the arrest and prosecution of Headley and other plotters.
 

As ProPublica has previously documented, Headley's case shows an alarming litany of breakdowns in the U.S. counterterror system that allowed him to play a central role in the massacre of 166 people in Mumbai, among them six Americans.
 

A mysterious Pakistani-American businessman and ex-drug informant, Headley avoided arrest despite a half dozen warnings to federal agents about extremist activities from his family and associates in different locales. If those leads from human sources had been investigated more aggressively, authorities could have prevented the Mumbai attacks with little need for high-tech resources, critics say.
 

"The failure here is the failure to connect systems," said a U.S. law enforcement official who worked on the case but is not cleared to discuss it publicly. "Everybody had information in their silos, and they didn't share across the silos. Headley in my mind is not a successful interdiction of a terrorist. It's not a great example of how the system should work."
 

Officials from Clapper's office reiterated this week that he was referring to the prevention of Headley's follow-up role in a Mumbai-style attack against Denmark's Jyllands-Posten newspaper, a prime target because it published cartoons of the Prophet Muhammad that many Muslims found offensive. To that extent, Clapper's comment shed a bit of new light on this aspect of a labyrinthine case.
 

Separately today, NSA Director Gen. Keith Alexander told a Senate committee that surveillance conducted by his agency helped disrupt "dozens" of attacks aimed at the U.S. and elsewhere. According to The Washington Post, Alexander cited the Headley case and promised to make more information public about the success of the NSA's phone surveillance program, which captures "metadata" such as number, time and location of but not the content of calls.
 

In January, a federal judge in Chicago imposed a 35-year prison sentence on Headley, 51, for his role in Mumbai and the foiled newspaper plot. He got a reduced sentence because he testified at the federal trial in Chicago of his accomplice, Tahawurr Rana, who was sentenced to 15 years in prison.
 

Headley confessed to doing undercover surveillance in Mumbai for the Lashkar-e-Taiba terrorist group and Pakistan's Inter-services Intelligence Directorate (ISI). U.S. officials also charged a major in the ISI with serving as Headley's handler before the attack in November 2008. Pakistan denies involvement.
 

In early 2009, according to trial testimony, Lashkar and the ISI sent Headley on a surveillance mission to Denmark. After he returned to Pakistan, his Lashkar and ISI handlers backed off. But Headley continued the plot with support from al-Qaida, whose leaders wanted a team of gunmen to attack the newspaper offices in Copenhagen, take hostages and throw their severed heads out of the windows.
 

Headley returned to Europe from Chicago for a second reconnaissance mission that July. The official version has been that he was detected at this point — but not by U.S. agencies.
 

Instead, U.S. and European counterterror officials have told ProPublica in interviews that British intelligence learned of Headley's contact with al-Qaida operatives near Manchester, England, who were already under surveillance. Headley planned to meet with the extremists in hopes they would supply money, arms and personnel for the Denmark attack.
 

"Headley was an unknown until not long before his arrest," a senior U.S. counterterrorism official told ProPublica in 2010. "He came to light because of the British. They knew him only as 'David the American.' [The British] MI5 [security service] detected that he was in contact with a group in the U.K. that they were watching ... David had made direct contact with two of the main targets of the U.K. investigation."

On July 23, 2009, the FBI asked U.S. Customs and Border Protection analysts in Washington, D.C., for assistance identifying a suspect who would travel shortly from Chicago via Frankfurt to Manchester, according to U.S. officials interviewed in 2011. The tip described a suspected American associate of Lashkar or al-Qaida with only his first name, flight itinerary and the airline, officials said. The customs analysts identified Headley through their databases containing records of his previous travel and interviews by U.S. border inspectors.
 

Headley went on to Sweden and Denmark. Alerted by U.S. agencies, Danish intelligence officers followed him as he scouted targets in Copenhagen and tried to find sources for guns, according to court records and interviews with counterterror officials. In the United States, court-approved FBI surveillance continued after his return in August and until his arrest that October, according to counterterror officials and court records.
 

Officials in Clapper's office declined to comment on accounts of the British tip. But they said that information lawfully gathered under the Foreign Intelligence Surveillance Act was integral to disrupting the attempted attacks on the Danish newspaper. This does not rule out other sources of information at other points in the investigation, the officials said.
 

Separately, the U.S. law enforcement official familiar with the case also said this week that a British communications intercept first detected Headley. Because the NSA works closely with its British counterparts, at that point U.S. intelligence agencies likely became involved in reviewing communications records to identify Headley and begin tracking his movements and associates, the official said.
 

"It was a communications intercept involving a bad guy in England," the law enforcement official said. "It was the Brits who passed us the info. Without knowing all the gritty technical details, [Clapper's depiction] definitely fits with my understanding."
 

The 30,000-page case file in Chicago remains wrapped in secrecy. Prosecutors have not said how investigators first detected Headley. Once he was under investigation by the Chicago field office of the FBI, agents intercepted his calls and emails and retrieved NSA intercepts of previous communications to build the case, according to court documents and ProPublica interviews. During questioning after his arrest, FBI agents confronted him with information from NSA intercepts as well as foreign intelligence agencies, the senior counterterror official said.
 

"What it may have allowed them to do is to go back and find emails and calls and map his movements," said Charles Swift, a lawyer for Rana, the Chicago accomplice.
 

Headley began cooperating after his arrest, turning over his computer and giving the FBI access to his email accounts. Swift said he is not aware of anything in the case to suggest that the disputed NSA programs identified Headley, though he acknowledged that defense lawyers were not shown the government application for a warrant to monitor Headley under FISA.
 

Swift called the case a dramatic example of the limits of the U.S. counterterror system because both high-tech and human resources failed to prevent the Mumbai attacks.

"You have to know what you are looking for and what you are looking at," Swift said. "Headley's the classic example. They missed Mumbai completely."

The Headley case is also problematic because of his murky past.
 

The convicted drug smuggler radicalized and joined Lashkar in Pakistan in the late 1990s while spying on Pakistani heroin traffickers as a paid informant for the Drug Enforcement Administration. His associates first warned federal agencies about his Islamic extremism days after the Sept. 11 attacks. Investigators questioned him in front of his DEA handlers in New York, and he was cleared.
 

U.S. prosecutors then made the unusual decision to end Headley's probation for a drug conviction three years early. He then hurried to Pakistan and began training in Lashkar terror camps. Although the DEA insists he was deactivated in early 2002, some U.S., European and Indian officials suspect that he remained an informant in some capacity and that the DEA or another agency sent him to Pakistan to spy on terrorists. Those officials believe his status as an operative or former informant may have deflected subsequent FBI inquiries.
 

The FBI received new tips in 2002 and in 2005 when Headley's wife in New York had him arrested for domestic violence and told counterterror investigators about his radicalism and training in Pakistan. Inquiries were conducted, but he was not interviewed or placed on a watch list, officials have said.
 

Headley was recruited in 2006 by ISI officers, who with Lashkar oversaw his missions, according to Headley's trial testimony and other court records.
 

In late 2007 and early 2008, another wife told U.S. embassy officials in Islamabad that Headley was a terrorist and a spy, describing his frequent trips to Mumbai and his stay at the Taj Mahal Palace Hotel. In fact, Headley was conducting meticulous surveillance on the Taj and other targets for an impending attack by a seaborne squad of gunmen.

Once again, U.S. agencies say they did not question or monitor him because the information from the wife was not specific enough.
 

Senior Indian officials believe the U.S. government did not need high-tech resources to spot Headley. They have alleged publicly that he was a U.S. double agent all along. U.S. officials strenuously deny that. They say Headley simply slipped through the cracks of a system in which overwhelmed agencies struggle to track threats and to communicate internally and with each other.
 

The final tip to authorities about Headley came from a family friend days after the Mumbai attacks. This time, FBI agents in Philadelphia questioned a cousin of Headley’s. The cousin lied, saying Headley was in Pakistan when he was actually at home in Chicago, according to trial testimony and court documents. The cousin alerted Headley about the FBI inquiry, but Headley went to Denmark as planned.
 

U.S. agencies did not find Headley or warn foreign counterparts about him in the first half of 2009 while he conducted surveillance in Denmark and India and met and communicated with ISI officers and known Lashkar and al-Qaida leaders.

 

Courtesy: http://www.propublica.org/

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RTI Judgement Series: Third party complaint against sharing info rejected

The PIO can furnish information that is not held by him in a fiduciary position but only as a consequence of discharge of legal obligations. This is the 113th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC), while rejecting a complaint filed by the general secretary of All India Punjab National Bank Officers’ Association (AIPNBOA) as a third party for restricting the Public Information Officer (PIO) from sharing information, said the PIO did not hold the information in a fiduciary relationship but only as a consequence of discharge of legal obligations.

 

While giving this judgement on 2 June 2011, Shailesh Gandhi, the then Central Information Commissioner, said, “Submission of documents/ records by the Association to the PIO in accordance with the existing laws cannot be considered to have been given in a fiduciary relationship. Therefore, the Commission does not find any merit in the arguments of the complainant that disclosure of the information sought was exempted under Section 8(1)(e) of the RTI Act."

 

New Delhi resident KD Khera, who was also general secretary of All India Punjab National Bank Officers' Association (AIPNBOA), filed a complaint before the Commission on 8 November 2010. In the complaint, Khera raised questions on the disclosure of information related with the Association by the PIO of Labour department at District South West, in Government of National Capital Territory of Delhi (GNCTD) to Sham Sunder.

 

RTI activist Sham Sunder on 31 May 2010 sought information about the Association, which the PIO furnished after seeking objections from the Association, which was a third party.

 

During the hearing on 5 May 2011, Khera stated that the information pertaining to the activity of the Association such as its constitution, amendment of its constitution, annual returns, etc was provided to one Sham Sunder who had sought the same under the RTI Act. He contended that the information sought was supplied by the Association to the PIO- public authority and the latter held the same in a fiduciary capacity. Moreover, there was no public interest in disclosure of the information to Sham Sunder. Khera also referred to certain decisions of the Commission to support his contention and requested the Commission to direct the PIO to not reveal such information.

 

The Commission reserved its order.

 

During the hearing on 2 June 2011, Mr Gandhi, the then CIC noted, after perusal of the papers that the PIO vide letter dated 8 July 2010, had provided copies of the amendments made in the constitution of the Association, notices of meetings, agenda and annual returns to Sham Sunder in response to the latter’s RTI application. “This information furnished to Sham Sunder appears to have been provided by the Association to the PIO in furtherance of certain regulatory compliances,” the CIC noted.

 

Khera, the complainant and general secretary of AIPNBOA, contented that the Association was registered under the Trade Unions Act, 1926, and therefore, the Central Trade Union Regulations, 1938 (the Regulations) framed thereunder were applicable to the Association. “As per Regulation 17(2) of the Regulations, any document in possession of the registrar received from a registered trade union may be inspected by any member of that union on payment of the prescribed fees,” he said.

 

Khera also argued that since Sham Sunder was not a member of the Association, no information about the Association could be provided to him by the PIO. 

 

Section 22 of the RTI Act expressly provides that the provisions of the RTI Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act. Section 22 of the RTI Act, in no uncertain terms, lays down that the RTI Act shall override anything inconsistent contained in any other law, Mr Gandhi said.

 

He said, “From a plain reading of Regulation 17(2) of the Regulations, documents/records of a trade union may be inspected by any member of that union; any person who is not a member of the trade union may not access such documents/ records in control of the registrar. In other words, Regulation 17(2) of the Regulations appears to impose a restriction on access to information held by or under the control of a public authority, which is prima facie inconsistent with the RTI Act. Therefore, in accordance with Section 22 of the RTI Act, the provisions of the RTI Act shall override the provisions of the Trade Unions Act, 1926, and the Regulations framed thereunder.”

 

Mr Gandhi then rejected the contention of Khera that information about the Association could not be provided by the PIO to a non-member as per the Regulations.

 

The complainant general secretary of AIPNBOA contented that as per Section 11(1) of the RTI Act, information pertaining to a third party may not be provided, the disclosure of which was in no way related to any public action or interest. Khera, the complainant argued that neither the members of the Association nor the members of the AIPNBOA General Council were ‘public’ and therefore, no public interest was involved in disclosure of the information. Moreover, despite the objections raised by the complainant in accordance with Section 11(1) of the RTI Act, the information was provided to Sham Sunder by the PIO, Khera said.

 

Khera also cited a decision of AN Tiwari, the then Information Commissioner in Ravinder Kumar v/s Delhi Police case (CIC/AT/A/2006/00609 dated 09/02/2007).

 

Section 11(1) of the RTI Act provides as follows:

"11. Third party information.- (1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:

 

Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party."

 

Mr Gandhi said, as per Section 11 of the RTI Act, where the PIO intends to disclose any information, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the PIO shall invite submissions from the third party whether such information shall be disclosed or not.

 

Information provided to the PIO in compliance with law/ regulatory requirements may not come within the purview of “information, which relates to or has been supplied by a third party and has been treated as confidential by that third party”. On receipt of submissions from the third party, Section 11(1) of the RTI Act requires that the PIO shall keep the submissions in view while taking a decision whether the information sought shall be disclosed or not.

 

Section 11(1) of the RTI Act is triggered once the PIO intends to disclose to the applicant any information/record which relates to or has been supplied by a third party and has been treated as confidential by that third party. Once Section 11(1) of the RTI Act is applicable, the PIO shall follow the procedure of serving a notice to the third party for seeking objections whether such information shall be disclosed or not. On receipt of the submissions of the third party, the PIO shall keep the submissions in view and then decide whether the information sought shall be disclosed or not. If the PIO does not find any merit in the submissions of the third party, he shall disclose the information sought to the applicant, Mr Gandhi said.

 

The CIC said, “However (except in the case of trade or commercial secrets protected by law) even where the PIO is of the view that there is possible harm or injury to the interests of the third party, but public interest in disclosure outweighs in importance any such harm or injury, he may disclose the information. However, Section 11 does not give the third party a right of veto in giving information. In light of the above arguments, this Commission respectfully disagrees with the observations of the then Information Commissioner in the Ravinder Kumar case cited by the complainant."

 

Khera also has cited the decision of the Commission in SK Kaushik v/s Indian Oil Corporation (CIC/MA/A/2007/00055 dated 03/04/2007) wherein it was observed that the applicant therein had sought information for promotion of personal interest rather than public and that such requests should be discouraged.

 

“With due respect to the observations of Professor MM Ansari, the then Information Commissioner, this Commission disagrees with the same. As per Section 6(2) of the RTI Act, an applicant making a request for information under the RTI Act shall not give any reasons for requesting the information. The ruling of the then Information Commissioner in the SK Kaushik case necessarily requires that the purpose/reasons for which an applicant may seek information shall be enquired into, which is clearly contradictory to the statutory mandate of Section 6(2) of the RTI Act. In view of the same, this Commission does not understand the relevance of the SK Kaushik case in the instant matter,” Mr Gandhi said.

 

AIPNBOA also argued that the information supplied by the Association to the PIO is held by the latter in fiduciary capacity and was exempted from disclosure under Section 8(1)(e) of the RTI Act.

 

Mr Gandhi said, the principal character of a fiduciary relationship is the trust placed by the provider of information in the person to whom the information is given and further, the information must be given by the holder of information when there is a choice.

 

In the instant case, the Commission said it was unable to understand how a fiduciary relationship is created between the Association and the PIO. “It does not appear that the PIO holds a position of trust in relation to the Association thereby requiring it to act in the benefit of the latter. The documents/ records are not held by the PIO in a fiduciary capacity but only as a consequence of discharge of the Association's legal obligations. Therefore, the Commission does not find any merit in the arguments of the complainant that disclosure of the information sought was exempted under Section 8(1)(e) of the RTI Act,” Mr Gandhi said.

 

Khera then cited another decision of Prof MM Ansari, the then Information Commissioner in Sadashiv Dattatraya Nikam v/s Chief Commissioner of Income Tax- II, Pune (CIC/MA/A/2006/00098 dated 10/05/2006). Since the relevant document was neither created and prepared by the public authority nor was the outcome of its activities, the PIO had correctly withheld the information on the basis of Sections 8(1)(d) and 8(1)(e) of the RTI Act.

 

Mr Gandhi said, “This Commission respectfully disagrees with the observations of the then Information Commissioner. Section 3 of the RTI Act mandates that all citizens shall have the right to information. Section 2(j) of the RTI Act defines 'right to information' to mean the right to information accessible under the RTI Act which is held by or under the control of any public authority. In view of the same, as long as the information sought is held by or under the control of a public authority, the information sought must be provided (unless it is exempted under Sections 8 and 9 of the RTI Act); it is irrelevant whether such information was created and prepared or is an outcome of the activity of the public authority."

 

The Commission then disposed the complaint filed by Khera, general secretary of the AIPNBOA.

 

CENTRAL INFORMATION COMMISSION

 

Decision No. CIC/SG/C/2010/001353/12671

http://rti.india.gov.in/cic_decisions/CIC_SG_C_2010_001353_12671_M_57570.pdf

Complaint No. CIC/SG/C/2010/001353

 

Complainant                                       : KD Khera,

                                                               General Secretary,

                                                               All India Punjab National Bank Officers' Association,

                                                               New Delhi- 110008

 

Respondent                                        : Public Information Officer &

                                                               Labour Officer,

                                                               Labour Department District South West,

                                                               GNCTD,

                                                              DTC Colony,

                                                              Pratap Nagar, Hari Nagar,

                                                              New Delhi- 110064

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COMMENTS

Dayananda Kamath k

4 years ago

a remarkable judgement in the true spirit of right to information. which has corrected many a wrong judgement's given earlier. this shows why civil society members should be appointed as information commissioners. the purpose of rti is to improve the governance and public accountability. but many a times it is followed in letter than spirit.

WPI-based Inflation eases to 4.7% in May

The fall in WPI inflation has been attributed to declining prices of manufactured items, even as prices of food articles inched up

The wholesale price index (WPI) based inflation fell to 4.7% in May, driven mainly by declining prices of manufactured items, even as prices of food articles inched up. Inflation based on the WPI stood at 4.89% in April. In May, 2012, it was 7.55%.

   

As per official data released on Friday, WPI inflation in the manufactured items category declined to 3.11% in May from 3.41% in April. The non-food articles category, which includes fibre, oil seeds and minerals, saw sharp decline in inflation to 4.88%, from 7.59% in April.

   

However, inflation in food articles category, which has a 14.34% share in the WPI basket, rose to 8.25% in May. Inflation in this category was at 6.08% in April. The rise in food inflation was on account of increase in prices of onions, vegetables, cereals and protein-based items.

    

Inflation in vegetables stood at 4.85% in May, against (-) 9.05% in the previous month. The rate of price rise in onion was high at 97.40% for the month, as against inflation rate of 91.69% in April.

   

Inflation for March was revised downwards to 5.65% from 5.96% as per provisional estimates. The inflation data would be closely watched by the Reserve Bank of India (RBI) while formulating its mid-quarter policy which is scheduled on Monday.

    

There have been demands for a lower interest rate in the backdrop of declining inflation. Finance ministry sources, commenting on inflation numbers, said they would want lower interest rates and monetary policy transmission.

    

While the RBI has lowered interest rates by 1.30% since January 2012, the banks have cut lending rates by only 0.30%.

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