Did Military Use Spy Planes to Illegally Track Times Square Terrorist?

Some say the RC-12 surveillance plane flew over New York

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Everyone is very glad that U.S. officials caught Times Square would-be terrorist Faisal Shahzad with moments to spare. Authorities say they tracked him by his pre-paid cell phone, but they won't specify how. But what if the military used high-flying, communications-sensing spy planes to track the phone? If so, it could violate the Posse Comitatus Act, which since 1878 has made it illegal for the U.S. military to join in a domestic law enforcement operation. It could also potentially conflict with laws against spying on U.S. citizens. Some reports say that the military's RC-12 spy plane was used to follow Shahzad in the hours before his arrest; the White House denies the aircraft was deployed. Here's the debate about what happened and what it could mean.

  • The Initial Report  CBS News' Marcia Kramer initially reported, "In the end, it was secret Army intelligence planes that did him in. Armed with his cell phone number, they circled the skies over the New York area, intercepting a call to Emirates Airlines reservations, before scrambling to catch him at John F. Kennedy International Airport." The article was originally titled "Army Intelligence Planes Led To Suspect's Arrest." However, the title was changed and her paragraph about the "Army intelligence planes" has since been removed from the article.
A US Special Operations Force source told me that the planes [used in New York] were likely RC-12s equipped with a Guardrail Signals Intelligence (SIGINT) system that, as the plane flies overland "sucks up" digital and electronic communications. "Think of them as manned drones. They're drones, but they have men sitting in them piloting them and they can be networked together," said the source. ... "We've got these things in Jalalabad [Afghanistan]. We routinely fly these things over Khandahar. When I say everything, I mean BlueTooth would be effected, even the wave length that PlayStation controllers are on. They suck up everything. That's the point."
  • Why It Might Go Unnoticed  Wired's Noah Shachtman explains, "From the ground, they could easily be mistaken for an executive aircraft. The RC-12 is based on the Hawker-Beechcraft King Air B200 suit-carrier. And while earlier versions of the aircraft were covered in odd-looking antennas, the latest aircraft are far less conspicuous. Variants of the planes are at the center of 'Project Liberty,' a crash project by the Air Force to send more airborne spies to Afghanistan." But he wonders, "Exactly why Army SIGINT planes would be required — as opposed to, say, the NSA’s industrial strength signal-swallowers that are almost undoubtedly able to pick up Big Apple-area communications — is unclear."
  • 'Would Not Be Unprecedented'  The Atlantic's Marc Ambinder says the White House denies the reports. However, "Using Pentagon resources and equipment to assist law enforcement on terrorism investigations would not be unprecedented. RC-12Q aircraft ... were tasked to help the F.B.I. intercept cell phone communications of the Beltway sniper suspects in 2002. Just who operated those airplanes has never been identified, because their sensor platforms require special expertise. RC-12s were also in the air over Salt Lake City during the Olympics."
  • How Often Is This Done?  Liberal blogger Rayne worries, "How often has this 'sniffing' function been used over American soil? ... And if this can be done with a plane today, will law enforcement do this soon using drones?"
  • Would Explain Why They Never Really Lost Him  The Nation's Jeremy Scahill reflects on the FBI's admission that they lost track of Shahzad for some time before miraculously finding him again. "It could be that the Feds lost track of Shahzad, but that other US forces, namely US military special operations forces (perhaps JSOC), were tracking him and waiting to see if he made any calls, met with any contacts, took any action while he was still a free man. Consider the confidence of Attorney General Eric Holder, who said bluntly: 'I was never in any fear that we were in danger of losing him.' Those could be the words of a man trying to downplay what could have been a major FBI failure that, in part, would have played badly for Holder. Or they could be the honest words of a man who knew it was all being taken care of and how."
  • Getting Around Posse Comitatus  Wired's Noah Shachtman points out that there are "all sorts of caveats" that allow the military to get around the Posse Comitatus Act forbidding their domestic involvement. "Military can help law enforcement stop drug-runners. The armed services can be called in if there’s a potential nuclear, chemical, or biological 'weapon of mass destruction.' And none of the restrictions apply to the Coast Guard or the National Guard. In 2008, the Mississippi Air National Guard began training pilots and sensor operators to man an expanded fleet of RC-12s."
This article is from the archive of our partner The Wire.