(photo: ACLU)

Under the guise of “mosque outreach,” the FBI division based in San Francisco, California, collected intelligence on mosques and Muslim religious organizations. The intelligence collected included information on First Amendment-protected activities, such as details on religious beliefs and practices. And the information was not used by just the FBI but was marked as “positive intelligence” and shared with outside agencies.

The revelations come from documents obtained by the American Civil Liberties Union (ACLU) of Northern California, the Asian Law Caucus and San Francisco Bay Guardian under the Freedom of Information Act (FOIA). The documents span from 2004 to 2008. They shine more light on a reality that the ACLU had already helped uncover, which is that the FBI used “community outreach” programs throughout the previous decade to engage in “secret” intelligence gathering initiatives that violated the rights of citizens.

Some clear examples of intelligence gathering that raise constitutional concerns include:

The FBI visited the Seaside Mosque five times in 2005 for “mosque outreach,” and documented congregants’ innocuous discussions regarding frustrations over delays in airline travel, a property purchase of a new mosque, where men and women would pray at the new mosque, and even the sale of date fruits after services. It also documented the subject of a particular sermon…

…A 2005 FBI memorandum described contacts with a representative of the South Bay Afghan Community Center and failed attempts to set up an outreach meeting with the Afghan Cultural Center. The document identifies the representatives of each organization, and lists the address and phone number of the Afghan Cultural Center…

…Two 2008 FBI memoranda described contacts with representatives of the Bay Area Cultural Connections(BAYCC), which was formerly the Turkish Center Musalla. The first describes the history, mission, and activities of the BAYCC, the ethnicity of its members and its affiliation with another organization. The second memorandum indicates the FBI used a named meeting participant’s cell phone number to search LexisNexis and Department of Motor Vehicle records, and obtained and recorded detailed information about him, including his date of birth, social security number, address and home telephone number…

All of this collected material, the ACLU notes, was marked as “positive intelligence” and shared with other agencies outside of the FBI.

The sharing of material outside the FBI is particularly troubling. It makes it seem like the people the FBI spoke to are “suspicious.” As the ACLU notes, it increases the “likelihood that other law enforcement or intelligence agencies would investigate innocent groups or individuals based solely on their religion.”

Additionally, the information could be used by the FBI in future operations to manufacture terrorism and target and entrap Muslims (e.g. the Newburgh Four). The information could be used by the government to ensure Muslim mosques or groups do not build strong ties with any charities or nonprofit groups in the Middle East and Asia, which might aid Muslims, including Palestinians, who are suffering directly or indirectly as a result of the US government’s “war on terrorism.” The material could be what helps launch the government’s next case against an organization similar to the Holy Land Foundation.

Recall, the government criminalized the operations of the Holy Land Foundation and found five Palestinian men guilty of providing “material support for terrorism” in 2008. The “crime” was sending money to Palestinian schools, hospitals and social welfare programs that were under the control of Hamas. They were not accused of engaging in terrorism. In fact, they were giving to charities that were receiving donations from US Agency for International Development (USAID) and the Red Cross.

The head of the FBI in Newark, New Jersey, criticized this kind of intelligence gathering when the AP revealed that the New York Police Department (NYPD) was engaged in mapping that essentially amounted to racial profiling of Muslims in New York and New Jersey.

Michael Ward, the Special Agent in Charge, told the press:

What we’re seeing now with the uproar that is occurring in New Jersey is that we’re starting to see cooperation pulled back. People are concerned that they’re being followed. People are concerned that they can’t trust law enforcement.

When Ward expressed concern, Mike German, a former FBI agent and senior policy counsel for the ACLU, wrote:

Unfortunately, the view that both Ward and the ACLU share isn’t reflected in the FBI’s policies, or its practices. To the contrary, FBI policies permit the kind of surveillance Ward rightly criticizes. The FBI’s guidelines were changed in 2008 to remove the requirement of any factual predicate before the FBI initiates intrusive investigations, and the FBI has a “racial and ethnic mapping” program targeting racial, ethnic and religious groups all across the country. In Newark, the FBI used census data to identify and map Latino communities throughout New Jersey in an attempt to assess the threat from MS-13. (We’re suing in N.J. because the Newark FBI refused to release other documents in response to our Freedom of Information Act request for racial mapping data).

In fact, the FBI’s modified guidelines allow the same type of abusive surveillance the NYPD engaged in, without any factual predicate, and our nationwide FOIA has revealed FBI agents targeting Muslim communities in Detroit, the Chinese andRussian-American communities in San Francisco, and tracking the growth of the Black population in Georgia. The FBI also used community outreach programs as a guise to collect information about the First Amendment activities of peaceful Muslim groups in Northern California for intelligence and investigative purposes.

Finally, the ACLU is thorough in its presentation of the material obtained. The group immediately challenges any idea that this information was necessary for the FBI to prevent hate crimes at mosques. That “effort operated under a ’44′ FBI case file number” while the case numbers on the “mosque outreach” documents are redacted.

There is ample evidence to suggest the uncovered “outreach” program violates the Privacy Act, “which prohibits the government from collecting or retaining information about individuals’ First Amendment activities in all but very limited circumstances.” To address this, the ACLU recommends the FBI “stop using community outreach for intelligence purposes.” The group suggests the Justice Department Inspector General investigate the San Francisco Division and “initiate a broader audit of FBI practices throughout the nation.” And the group asks that “the Department of Justice must amend its 2003 Guidance Regarding the Use of Race by Federal Law Enforcement Agencies to ban profiling based on religion in all of its investigations.”

If what the NYPD was found to be doing in its spying operations against Muslims is wrong to FBI personnel, certainly the ACLU’s recommendations are valid and to be considered. Unfortunately, the agencies and institutions of US government have such a fear of scrutiny that there is only a minimal chance such an investigation or audit would truly investigate the practices of an entity that has transformed itself into a massive domestic spying agency in the last decade.