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U.S. concealed evidence of intelligence failure before 9/11

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US acted to conceal evidence of intelligence failure before 9/11

Operation Foxden, delayed by turf war between the FBI and the CIA, given green light three days before the al-Qaida attacks

By Ian Cobain

guardian.co.uk, Tuesday 27 March 2012 15.26 EDT


The US government shut down a series of court cases arising from a multimillion pound business dispute in order to conceal evidence of a damning intelligence failure shortly before the 9/11 attacks, MPs were told.

Moreover, the UK government is now seeking similar powers that could be used to prevent evidence of illegal acts and embarrassing failures from emerging in court, David Davis, the former shadow home secretary, told the Commons.

The Justice and Security green paper being put forward by Ken Clarke's justice ministry has already faced widespread criticism from civil rights groups, media representatives and lawyers working within the secret tribunal system that hears terrorism-related immigration cases.

Davis demanded to know how its proposals could be prevented from being used to cover up crimes and errors. "In light of previous revelations about the UK government's complicity in torture and rendition of detainees to locations like of Libya, Afghanistan, or illegally into American hands … how will the Government prevent the Justice and Security green paper proposals being misused in a similar way to cover up illegal acts and embarrassments rather than protect national security?"

Davis said that in 1998 the FBI seized upon an opportunity to eavesdrop on every landline and telephone call into and out of Afghanistan in a bid to build intelligence on the Taliban. The Bureau discovered that the Taliban regime had awarded a major telephone network contract to a joint US-UK venture, run by an American entrepreneur, Ehsanollah Bayat and two British businessmen, Stuart Bentham and Lord Michael Cecil.

"The plan was simple" Davis said. "Because the Taliban wanted American equipment for their new phone network, this would allow the FBI and NSA, the National Security Agency, to build extra circuits into all the equipment before it was flown out to Afghanistan for use. Once installed, these extra circuits would allow the FBI and NSA to record or listen live to every single landline and mobile phone call in Afghanistan. The FBI would know the time the call was made and its duration. They would know the caller's name, the number dialled, and even the caller's PIN."

But the plan, Operation Foxden, was delayed by a turf war, during which "the FBI and the CIA spent more than a year fighting over who should be in charge", he said.

The operation was eventually given the green light on 8 September 2001 - three days before the al-Qaida attacks. "A huge opportunity was missed," Davis said.

He added that when Bentham and Cecil sued Bayat in the New York courts, and Bayat lodged a legal claim against the two Britons, the case was struck out and all records removed from the courts public database on the grounds of State Secrets Privilege, a legal doctrine that permits the US government to shut down litigation on the grounds of national security. The Britons attempted to sue in London, Davis said, but the case failed because "so long is the reach of the American State Secrets Privilege" that they were prevented from discussing key details of the US case.

"Through heavy-handed use of State Secrets Privilege, US agencies can dictate what British judges in British courts are entitled to know, and how much British citizens in British courts are entitled to say," Davis told MPs. "What chance did Bentham and Cecil, or anyone else in a similar position, have of getting a fair hearing when American intelligence agencies can shut down cases without explanation in the US, and use State Secrets Privilege to control what evidence courts can see in the UK?"

Davis said that when he talked about this episode with "someone in the know in one of the agencies involved" he was told: "Ten years have passed, and the culpable people have retired or moved on, so it's no longer embarrassing."

Davis said the British green paper proposals are "more Draconian than State Secrets Privilege", and added: "Giving a government agency an absolute right to secrecy encourages bad behaviour.

"This is the same State Secrets Privilege, and same American government, that the British green paper on Justice and Security is designed to protect," Davis said, adding that the case demonstrates "how intelligence agencies misuse these laws, not to protect our security, but to avoid their own embarrassment and cover up criminal activity."

Bayat has previously denied that he or any of his companies acted unlawfully and said that they have never acted as "an agent, informant or spy". He could not immediately be contacted to comment on Davis' speech.

The foreign officer minister Jeremy Browne told MPs: "The green paper proposals will enable better scrutiny [of government], which is a vital element in a healthy democracy." He added that proposals are "not about covering up embarrassment, it is about enabling the work of the courts".

Reprieve's Executive Director, Clare Algar, director of the legal charity Reprieve, said: "This demonstrates just how ready the intelligence services are to cry national security in order to cover up their own embarrassment. It is yet another compelling example - if one were needed - of why we cannot let the UK Government's plans for secret justice go ahead."

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FBI 'missed chance to uncover 9/11 plot’

US intelligence agencies used “closed” court hearings to suppress information about how a row between the CIA and FBI could have prevented them from uncovering the 9/11 terrorist plot, the House of Commons has heard.

Two British businessmen returned to the UK and began a High Court action over their dispute. According to Mr Davis, the US court order prevented them discussing some details of their dispute in the London court.

The Telegraph

By James Kirkup, Deputy Political Editor

6:20AM BST 28 Mar 2012

David Davis, the former Conservative shadow home secretary, disclosed details of the “extraordinary” case to illustrate why the Coalition should abandon plans to allow similar secret hearings for intelligence cases to be held in British courts.

He said that the American authorities had “sealed” a case in a US court relating to a dispute between two British businessmen and an Afghan billionaire over the setting up of a mobile phone network in Afghanistan in the late 1990s.

Lord Michael Cecil, a British aristocrat, and his business partner, Stuart Bentham, claimed they were cheated out of shares in the mobile phone firm by Ehsan Bayat.

According to reports, US intelligence agencies had privately backed the venture, hoping to be able to monitor calls made over the new network. Mr Bayat was an FBI informer, Mr Davis said. Progress on the network was slowed by “bickering” between the FBI and the CIA, meaning that it was not fully operational until 2002, the year after the al-Qaeda attacks on Washington and New York.

“We cannot say for certain that if US intelligence agencies had tapped the Afghan phone network sooner, we would have intercepted evidence in time to stop the 9/11 attacks. But it seems likely,” Mr Davis said. “It looks like a huge opportunity was missed.”

The businessmen’s dispute was heard in a New York court. In November 2003, Mr Davis said, an American judge sealed the case under national security laws after a request by the US Justice Department.

“The US intelligence agencies feared the consequences if the truth about their infighting emerged, and they were determined to stop this happening,” he said.

In 2009, the two British businessmen returned to the UK and began a High Court action over their dispute. According to Mr Davis, the US court order prevented them discussing some details of their dispute in the London court.

The MP said that the case illustrated the danger of Coalition plans to hold “closed-material procedures” where judges would hear national security cases in secret.

Jeremy Browne, a Foreign Office minister, insisted that the Government’s plans would not lead to situations like the one Mr Davis described.

“This is not about covering up embarrassments. It is about putting more information before the courts than is currently possible,” he said.

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  • 2 weeks later...

This is a shocking abuse of power, as well as indirect evidence of CIA culpability over failure to prevent the 9/11 attacks. I despair to hear that the UK looks to be going down a similar route. Freedoms that have been centuries in the making are being silently taken away, under the guise of national security.

Davis said the British green paper proposals are "more Draconian than State Secrets Privilege", and added: "Giving a government agency an absolute right to secrecy encourages bad behaviour.

Sadly very true.

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