Opponents of the Patriot Act and the National Security Agency program that targets al-Qaida-linked communications in and out of the United States should consider the Portland Seven terrorists, one of whom blamed their failure on President Bush.
Homegrown terrorist Jeffrey Leon Battle called America a "land of the kaffirs," or unbelievers. Before Sept. 11, 2001, he and others began forming a terrorist group and pondering mass murder.
"During the criminal investigation of the Portland Seven case, we learned through an undercover informant that, according to one defendant (Jeffrey Battle) ... the group allegedly contemplated attacking Jewish schools or synagogues," Assistant U.S. Attorney Charles Gorder, a prosecutor in the case, told me in a statement responding to my questions.
After 9-11, six of the gang decided instead to travel via China and Pakistan to Afghanistan, intending to join with al-Qaida in killing American troops. They made it as far as Kashgar on the Chinese side of the China-Pakistan frontier. When their efforts to cross over failed, two immediately went home, while three disbursed to other points in Asia, with Battle, at least, continuing his futile efforts to reach Afghanistan. One eventually did reach Afghanistan.
All along the way, they left an electronic trail, emailing and telephoning the United States, and receiving money wires.
Timely intercepts might have raised timely suspicions. Consider Habis al Saoub's call to Maher "Mike" Hawash.
Al Saoub, a Jordanian who fought in Afghanistan against the Soviets, became the Portland Seven's leader -- and one member who reached Afghanistan. The Portland Oregonian reported he was killed with other al-Qaida terrorists by Pakistani forces in an October 2003 skirmish.
"Law enforcement officials suspected al Saoub had direct ties to al-Qaida even before he reached Portland, but they say any information about those ties remains classified," the Oregonian said.
Hawash, a naturalized American born in the West Bank, eventually pleaded guilty to conspiracy to aid the Taliban. According to an affidavit filed in federal court by Oregon State Police officer Thomas McCartney, Hawash and his wife made $357,668 in 2000 "primarily from Hawash's salary at Intel," where he was an engineer. He went to Kashgar, but returned home.
"After Hawash returned to the United States, he received a phone call from Al Saoub asking for money," prosecutors said in a sentencing memorandum. "Hawash arranged for $2,000 to be sent by someone in Nablus in the West Bank area of Palestine to defendant Al Saoub in China."
Now, consider emails between Battle, who pleaded guilty to conspiracy to wage war against the United States, and his former wife, October Lewis, who stayed behind in Oregon when the group went to China, but pleaded guilty to laundering money for the cell.
"Baby this what I'm about to tell you is for your information only," Battle emailed Lewis from Beijing on Nov. 12, 2001. "I tried to receive a visa to pakistand (sic) and was refused entry. ... So the decision was either 1. return back to USA to a land of the kafir or 2. Move to a muslim land close to the work of Allah."
Lewis responded, "So what do you want me to tell the brother if he ask about you?"
Battle was worried a call might be intercepted. He emailed Lewis that she could show "the brother" this message: "If Allah finally due (sic) connect us in conversation My brother in Islam please don't ask me question on the phone that could get myself or anyone I am associated with in trouble."
Battle's and Al Saoub's communications fit the criteria for NSA's intercept program: They were international, in and out if the United States, and had a reasonable link to al-Qaida.
So, did NSA discover the Portland Seven? Apparently not.
Citing unnamed government officials, The New York Times reported on Jan. 17 that this case "might have" been one assisted by NSA. But when I asked U.S. District Judge Mike Mosman, who was the U.S. attorney who oversaw the Portland Seven prosecution, he said, "I first heard about NSA intercepts in mid-December when I read about it in The New York Times."
Mosman said the case began with a tip from a deputy sheriff in Washington state. (The deputy took down the names of some Portland cell members when he found them shooting guns at a gravel pit.)
If NSA played no role, the Patriot Act did. On May 8, 2002, Battle told a government informant of his abandoned plan to attack Jewish schools or synagogues. But there wasn't yet evidence to round up other cell members. The Patriot Act provisions tearing down the wall between intelligence investigators and criminal investigators allowed prosecutors to safely hold off arresting Battle.
"With the intelligence-sharing changes of the Patriot Act, the FBI was able to detect whether he received orders from some international terrorist group to reinstate the domestic attack plan on Jewish targets and keep us informed as to what they were learning," said Gorder. "That gave us the confidence not to prematurely arrest Battle while we continued to gather evidence on the others.
"Without these changes in the Patriot Act," said Gorder, "our case would have been the 'Portland One' rather than the Portland Seven."
Gorder says some of the Seven complained the Act "crimped their terrorist plans." Battle even invoked President Bush by name. "Everybody's scared to give up any money to help us," he told an informant. "Because of that law that Bush wrote about, you know, supporting terrorism, whatever ..."
Redundant defenses protected America from these terrorists. NSA intercepts didn't discover them, though they might have -- just as they might discover a similar cell tomorrow. Alert local police helped. The Patriot Act was crucial. And McCartney's affidavit cites valuable tips from curious neighbors.
Lawmakers critical of the Patriot Act and NSA intercepts must decide if they really want to strip away one or more of these barriers between us and another terrorist attack.