by Kevin Gosztola
In 2010, the FISA court approved all 1,506 requests by the FBI to electronically monitor suspects. They were also generous with granting “national security letters," which allow the FBI to force credit card companies, financial institutions, and internet service providers to give confidential records about customers’ subscriber information, phone number, email addresses and the websites they’ve visited. The FBI got permission to spy on 14,000 people in this way.
Do they really think there are 14,000 terrorists living in the US?
That's just the beginning.
Now, the FBI is claiming the authority to exercise more surveillance powers, which include undocumented database searches, lie detector tests, trash searches, surveillance squads, investigations of public officials, scholars and journalists and rules that would provide more freedom for agents and informants to not disclose participation in organizations that are targets of FBI surveillance.
Here are five cases of FBI abuse that show the FBI deserves more scrutiny, not a free pass to continue fighting the so-called “war on terror.”
1. FBI’s Use of Warrantless GPS Tracking
Given the fact that Americans have a constitutional right to privacy, one might think you have to get a warrant to place a GPS device in a location that can track a suspect 24 hours a day. Yet, in many cases, law enforcement officers are attaching GPS devices without first getting a warrant.
In October 2010, 20-year old Arab-American student Yasir Afifi was concerned that he had found a pipe bomb when he noticed a “black, rectangular device” attached to his car. Upon finding the device, he posted photos to Reddit.com hoping someone could tell him what was on his vehicle. A couple days later, FBI agents showed up at his apartment to “retrieve the device.”
Turns out, the mysterious device resembling a bomb, which had understandably petrified Afifi, was a GPS device.
As a lawsuit filed by the Council on American-Islamic Relations (CAIR) details, “after requesting counsel, the FBI agents continued to make demands of Mr. Afifif and interrogate him…They asked him whether he was a national security threat, whether he was excited about an upcoming (but undisclosed) trip abroad, whether he was having financial difficulties, whether he had been to Yemen, why he traveled overseas, and many other questions.”
Attorney General Eric Holder and FBI Director Robert Mueller are being sued for violating Afifi’s constitutional rights.
Nevertheless, the Obama administration has urged the Supreme Court to allow government to attach GPS devices on “suspects’ vehicles to track their every move.” According to the Justice Department, “A person traveling on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,” and that is why, as of April 2011, they wanted a lower court’s decision that reversed a conviction and life sentence for a drug dealer whose vehicle had a GPS attached without a warrant undone.
The ACLU of Delaware filed a brief at the end of May urging Delaware to uphold its ruling on the case of the drug dealer. The brief asserts, “The Fourth Amendment protects all persons, regardless of their location, from government searches, absent exigent circumstances, unless a court has issued a warrant upon proof of probable cause.” It adds, despite the rise in use of “sophisticated electronics,” the New York Court of Appeals, for example, does not find the public’s “socially reasonable expectation that our communications and transactions will remain to a large extent private” has diminished.
Additionally, the FBI’s use of warrantless GPS tracking is invasive, for the reason outlined by a Washington, DC, federal appeals court:
A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.The US Supreme Court agreed on June 27 to hear the case on whether police can attach a GPS tracking devices to a suspect’s vehicle without obtaining a warrant. The court’s decision could have profound implications for US citizens because a majority carry a “tracking device” every day—a cell phone. It could define whether the FBI would be able to circumvent traditional wiretapping guidelines and just use this loophole to tap citizens through their cell phones.
2. FBI Targeting WikiLeaks and Bradley Manning Supporters
David House, co-founder of the Bradley Manning Support Network, has faced harassment since November 2010, when Department of Homeland Security agents detained him at O’Hare International Airport on his return trip from Mexico.
A press release posted by the Bradley Manning Support Network described how House had his laptop seized and was “questioned extensively" about his support for alleged WikiLeaks whistleblower Bradley Manning. House requested a copy of his research data fromthe computer that was seized. His request was denied.
House faced intrusive and intimidating tactics that included copying and possibly disseminating the contents of his USB drive, camera and laptop, all because he joined a lawful group.
“The search and seizure of my laptop has had a chilling effect on the activities of the Bradley Manning Support Network, by silencing once-outspoken supporters and causing donors to retreat. Our government should not be treating lawful activists like suspects,” House said. Days later, the FBI approached House at a computer conference.
The FBI has also been at the center of attempts to intimidate WikiLeaks supporters, especially those involved in organizing with the Bradley Manning Support Network, a grassroots group.
In April of this year, House sent a message on Twitter reporting that FBI agents had gone to “interrogate a West Coast friend at his place of work.” He described how his friend, who is not involved in computers or activism, was pressured to sign a non-disclosure agreement and was held for four hours after the interrogation. His friend was released after repeated banging on the interrogation room’s door. He had taken notes during the interrogation on “a scrap of magazine paper during his four-hour detention” but was made to surrender his notes before leaving his detention.
The friend said that the FBI agents wanted to know what he knew about House, his beliefs and his lifestyle. There were no questions about Manning.
The ACLU has come to House’s defense and filed a lawsuit against the DHS. The ACLU has called for the “return or destruction of any of House’s personal data still in the custody of the government and disclosure of whether and to whom the data has been disseminated.” If not for the ACLU sending a letter to DHS, House would likely have not been able to get his seized laptop, camera and USB drive back after seven weeks.
The FBI recently subpoenaed House to appear before a federal grand jury empanelled to investigate WikiLeaks in Alexandria, Virginia. He pled the fifth and refused to answer questions on possible violations of the Espionage Act. House also has alleged that agents from various government agencies tried to bribe him for information on Boston-area hackers.
Additionally, Jacob Appelbaum, a computer security researcher who represented WikiLeaks at the 2010 Hope conference, has been detained and searched regularly for nearly a year. On July 29, 2010, he was detained for three hours at the Newark airport. His bag was searched, receipts in his bag were photocopied and his laptop was inspected. Appelbaum refused to answer questions because he did not have a lawyer present. He was not allowed to make a phone call and three mobile phones he was carrying were seized and have yet to be returned.
Days later, he was approached by two FBI agents at a Defcon conference after he made a presentation about the Tor Project.
FBI agents wanted to chat but Appelbaum said he had nothing to say. An agent claimed he was interested in hearing how his rights were being trampled because “sometimes it’s nice to have a conversation to flesh things out.” The agents said they were at the conference for official and personal reasons.
Appelbaum continues to be detained at US airports. He was detained when returning from a vacation in Iceland on January 10 at the Seattle airport, in a Houston airport when returning from Siberia on April 12 and on June 14, he was subjected to detention without charge when he arrived at the Seattle airport from Iceland.
3. FBI Spied on Children While Using 'Roving Wiretaps,' Intentionally Misled Courts on Freedom of Information Act Requests
The FBI Intelligence Oversight Board (IOB), which is responsible for reviewing the activities of the US intelligence community, found one instance where the FBI spent a week monitoring children. According to the IOB report, a language specialist listening to the wiretap knew the FBI did not have the right target, but continued to listen in to the children for five more days.
The report was obtained by digital rights advocacy organization Electronic Frontier Foundation (EFF) through its FOIA Litigation for Accountable Government (FLAG) Project. The FLAG Project requested records of intelligence violations from the FBI’s use of provisions of the PATRIOT Act that were due to expire, particularly Section 215. The request contained evidence of “multiple reports of potential violations,” but the FBI managed to keep most of the revelations secret by redacting a significant portion of the documents requested. The FBI's target is unknown and the aforementioned spying was only discovered after comparing the redacted documents to documents from a previous EFF FOIA request.
The incident involving the FBI listening to children constitutes a “roving wiretap” violation. Roving wiretaps are wiretaps that follow the surveillance target. They are typically used when it is believed a target is changing locations to deliberately avoid electronic surveillance.
Senator Dick Durbin (D-IL) has said that roving wiretaps are designed to allow law enforcement to track targets who evade surveillance by "frequently changing phones.” They used to only be permitted for criminal investigations but the PATRIOT Act has “insufficient checks to protect innocent Americans from unwarranted government surveillance.” Now under the PATRIOT Act the FBI does not have to know the target is present at the location being tapped.
Beyond the abuse of wiretapping, the FBI appears to be playing games with FOIA requests. It has improperly used “outside the scope” redactions to cover up misconduct.
A post by Jennifer Lynch of EFF indicates the US District Court for the Central District of California found “the FBI lied to the court about the existence of records requested” under FOIA. The FBI “materially and fundamentally misled the court” on its filings related to the case of Islamic Shura Council of S. Cal v. FBI, a case related to the FBI surveillance of the Muslim organization.
Additionally, according to EFF, the FBI argued it was “allowed to mislead the court when it believed revealing information would ‘compromise national security.’”
The Court did not go along with this assertion by the FBI:
“The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.”Section 215 of the PATRIOT Act, containing the roving wiretaps provision was recently extended by Congress, despite a bipartisan alliance that attempted to challenge the extension of expiring provisions with little to no debate.
4. FBI Entrapment of Muslims
When David Williams’ younger brother, Lord McWilliams, was hospitalized with liver cancer early in 2009, Williams, 24, was devastated. He had spent the last two years, after serving a five-year prison sentence for selling drugs, being a father figure for McWilliams.
Williams knew he had to find a way to make money so his younger brother could get a liver transplant. In April 2009, an acquaintance named James Cromitie told him that someone named Maqsood could give him $250,000, luxury cars and financing for a barbershop if he helped carry out a terrorist attack in the United States. Williams became part of the scheme because Cromitie allegedly had a plan for getting the money without carrying out a terror plot.
Maqsood was a paid informant named Shahed Hussain, who had spent the last eight months working to get Cromitie to plant bombs at a local synagogue. Hussain had done previous work for the FBI and was involved in a controversial case against a pizza-parlor owner and local imam in Albany, New York.
As a report published by the Center for Human Rights and Global Justice of the New York University School of Law in May and titled, “Targeted and Entrapped: Manufacturing the ‘Homegrown Threat’ in the United States,” describes, “On May 13, 2009, at the FBI’s direction, Hussain drove Cromitie, David, and two others—Laguerre Payen and Onta Williams (no relation to David)—to the Bronx to conduct surveillance on various synagogues. Next he drove them to Connecticut to look at the Stinger missile they were to use. Unbeknownst to David and the others, the weapons were fake and supplied by the FBI.”
Hussain drove Cromitie, Payen and David and Onta Williams to the Bronx on May 20th. In front of the proposed targets, the FBI placed two cars. The four led by Cromitie were to place explosives in the cars’ trunks. Hussain dropped off David Williams, drove the other three men to the first car and then Hussain turned off a recording device he had been wearing. The men were arrested soon after.
The FBI raided Williams’ younger brother’s home immediately after the arrests. Williams was locked up in White Plains, where people would slip him notes calling him a terrorist. According to David’s aunt Alicia McWilliams, at the jury selection in White Plains, snipers were placed on the roof for “show,” making it seem like Williams’ trial might lead to an attempted terror attack.
McWilliams claims that Williams was “pulled into a political game. The case was directed, produced and scripted by the FBI and all they needed were puppets.”
The CHRGJ report looks at this case and two others to show the “profound toll government policies are taking on Muslim communities and families.” It details how “counterterrorism law-enforcement policies and practices are undermining U.S. human rights obligations to guarantee the rights to nondiscrimination; a fair trial; freedom of religion expression and opinion; as well as the right to an effective remedy when rights violations take place.”
Relaxed FBI guidelines have made it possible to rely on informants like Hussain. Guidelines put into place by former Attorney General Michael B. Mukasey allowed the FBI to authorize informants and other surveillance techniques without any factual predicate or nexus to suspected criminal conduct,” which meant the FBI could have informants “gather names, emails, and phone numbers of particularly devout mosque attendees, without any particular nexus to suspected criminal activity.” And, under former Attorney General Alberto Gonzales, guidelines were established that did not explicitly prohibit using informants to engage in entrapment.
Informants present a particular problem because they may be receiving a benefit for helping the FBI target individuals (for example, a reduction in a criminal sentence or a change in immigration status, etc). They may also be receiving payment for their service. The “dangerous incentive structure,” inevitably helps to increase the possibility of abuse of authority by the FBI. As former FBI agent Mike German says:
If the government targets somebody based on political advocacy, and can lure a few people into committing bad acts, then a successful prosecution in those cases justifies future targeting of people who are in the same position. . . Whether these cases could survive an entrapment defense is not the relevant question. It’s whether it’s appropriate for the government to act in a way where they’re aggrandizing the nature of the threat. It’s just difficult to understand what the legitimate government interest is in these cases.”Williams and the other men were found guilty in October 2010. In May of this year, a judge denied the defendants’ motions for dismissal “on the basis of outrageous government conduct and entrapment.” The men are currently in the process of being sentenced for their participation in this scheme and prosecutors are pushing for life sentences for three of the four men, including Williams.
5. The Criminalization of Travel by the FBI
At least 23 antiwar, labor and international solidarity activists have been subpoenaed to appear before a federal grand jury in Chicago. Several of the activists from Chicago, the Twin Cities in Minnesota and other areas have had their homes raided by the FBI with documents, cell phones, storage disks, computers and children’s artwork seized.
The FBI alleges the activists have provided “material support for terrorism.” In the past months, it has been discovered the FBI used an informant named Karen Sullivan to spy on an antiwar organization for months as it made plans for the 2008 Republican National Convention. The FBI also flubbed the investigation when an agent left documents in the home of one of the subpoenaed activists.
A troubling aspect of the investigation is how it effectively criminalizes outspoken citizens who travel to other countries to meet groups that may have beliefs or agendas that are in conflict with US foreign policy. For example, Sarah Smith, a Jewish American woman and avid traveler who lives in Chicago, received a call from the FBI on December 3, 2010. The agent, Robert Parker, asked Smith to meet with him and answer some questions.
Smith asked what questions the agent had, and he said he was not at liberty to discuss the questions. This made Smith think she needed a lawyer. The agent told Smith that it was not necessary to have a lawyer because she was not in trouble. He claimed he had some routine questions about a trip and said, "I think you know which trip I'm talking about." Realizing Parker wanted to talk to her about the trip she took to Israel and Palestine in August, just months ago, she reached out to a lawyer with the National Lawyers Guild.
"We went on an educational trip in which we met with NGOs, teachers, nonviolent protesters," explains Smith. "We didn't meet with anyone who is on any terrorist list. We didn't give money to anyone that is on a terrorist list. We wanted to see what it was like for ourselves, to live in Israel with Palestinians in the occupied West Bank."
Suppressing the right of American groups to travel is not new to U.S. government policy. In 1992, the Center for Constitutional Rights (CCR) mounted a case on behalf of the American Friends Service Committee (AFSC), Geo-Vista Global Experiences and Veterans for Peace asserting regulations on group travel to Vietnam and Cambodia were "making it impossible to organize academic study groups, to travel with study groups, to travel with colleagues to assess humanitarian aid and to engage in group fact-finding trips."
Secretary of State James Baker eventually lifted the regulations, making it permissible for groups to travel to the two countries.
Tom Burke is another traveler alleged to have provided “material support to terror.” Burke was at home with his wife and daughter on September 24, 2010 and began to receive phone calls from people in Chicago and Minneapolis informing them the FBI had raided their homes. Burke thought the FBI might be coming to raid his house. He decided his daughter needed to get to kindergarten before the FBI entered his home. He left with his daughter.
Burke thought he needed to write a press release, took his computer and got in his car to go find a web café. On the way he noticed that his car was being followed. He called his wife and they agreed he should drive to the parking garage at her work. As Burke reached the parking garage, the car that had been following him sped off. An SUV sped into the road right behind him and followed him into the garage. Burke was served with a subpoena to appear before a grand jury. His wife was later served with a subpoena too.
"We've been doing solidarity work with people in other countries who get killed for doing what they do,” Burke explains. “When I went to Colombia in 2003 with a labor union delegation, at that time three Colombian trade unionists were being killed every single week. And that was the scariest week of my life." Burke was with the human rights director of the oil workers union. All week he had to have armed security, know who was with the group and whether they were in a safe place.
Months into targeting the activists, there is no evidence that any of these activists provided "material support for terrorism."
Reminiscent of how animal rights and environmental activists have been targeted in recent years, the FBI is going after the activists, wrecking their lives, intimidating Americans who believe in their right to dissent. It is pressing on, widening its investigation despite a growing backlash against the investigation. And some of the activists fear indictments from the investigation may be coming soon.