Intellectual Property Law

NSA-Intercepted E-Mails Helped Convict Would-Be Bombers

By Kim Zetter

The three men convicted in the United Kingdom on Monday of a plot to bomb several transcontinental flights were prosecuted in part using crucial e-mail correspondences intercepted by the U.S. National Security Agency, according to Britain’s Channel 4.

The e-mails, several of which have been reprinted by the BBC and other publications, contained coded messages, according to prosecutors. They were intercepted by the NSA in 2006 but were not included in evidence introduced in a first trial against the three last year.

That trial resulted in the men being convicted of conspiracy to commit murder; but a jury was not convinced that they had planned to use soft drink bottles filled with liquid explosives to blow up seven trans-Atlantic planes — the charge for which they were convicted this week in a second trial.

According to Channel 4, the NSA had previously shown the e-mails to their British counterparts, but refused to let prosecutors use the evidence in the first trial, because the agency didn’t want to tip off an alleged accomplice in Pakistan named Rashid Rauf that his e-mail was being monitored. U.S. intelligence agents said Rauf was al Qaeda’s director of European operations at the time and that the bomb plot was being directed by Rauf and others in Pakistan.

The NSA later changed its mind and allowed the evidence to be introduced in the second trial, which was crucial to getting the jury conviction. Channel 4 suggests the NSA’s change of mind occurred after Rauf, a Briton born of Pakistani parents, was reportedly killed last year by a U.S. drone missile that struck a house where he was staying in northern Pakistan.

Although British prosecutors were eager to use the e-mails in their second trial against the three plotters, British courts prohibit the use of evidence obtained through interception. So last January, a U.S. court issued warrants directly to Yahoo to hand over the same correspondence.

It’s unclear if the NSA intercepted the messages as they passed through internet nodes based in the U.S. or intercepted them overseas. If the former, it’s possible the interception was part of the Bush administration’s warrantless surveillance program — a surveillance program aimed at intercepting foreign correspondence as it passed through domestic internet switches. Such interception was previously illegal unless conducted with a warrant from the Foreign Intelligence Surveillance Court. After news stories revealed that the NSA was conducting such surveillance without a warrant, however, Congress legalized such collection activities last year in its passage of the FISA Amendments Act.

(Hat tip: The Lede)

Full post as published by Threat Level on September 08, 2009 (boomark / email).