Both the Office of Director of National Intelligence and the United States Justice Department have responded to a major feature story based off document from National Security Agency whistleblower Edward Snowden. The two agencies deny that any surveillance against the five prominent American Muslims named as NSA and FBI targets was a result of US intelligence targeting them for “exercising constitutional rights.”
As is typical in official statements, such as this one, the words are cleverly chosen to create an impression that leads one to think nothing occurred that was wrong. But, if one deconstructs the statement, it doesn’t really prove that the story from Glenn Greenwald and Murtaza Hussain of The Intercept is at all incorrect.
The five individuals named are: Faisal Gill, a lawyer, a former member of President George W. Bush’s administration and former GOP candidate; Asim Ghafoor, a public relations consultant, lobbyist, lawyer and advocate for the rights of American Muslims; Agha Saeed, a professor who has mobilized American Muslims to become involved in the American political process; Hooshang Amirahmadi, founder and president of the American Iranian Council, who has done considerable work on American policy toward Iran; and Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), which is the largest Muslim civil rights organization in America.
“It is entirely false that US intelligence agencies conduct electronic surveillance of political, religious or activist figures solely because they disagree with public policies or criticize the government, or for exercising constitutional rights,” ODNI and the Justice Department claim. The key word in that sentence is “solely.”
In the view of officials involved, the surveillance may not be “solely” targeting what most Americans would consider to be First Amendment-protected activity or even attorney-client privileged communications, but it just might influence the decision by the NSA, FBI and even the Foreign Intelligence Surveillance Court to allow the government to target a person as if they are an “agent of a foreign power,” a “spy” or a “terrorist.”
ODNI and the Justice Department state, “Unlike some other nations, the United States does not monitor anyone’s communications in order to suppress criticism or to put people at a disadvantage based on their ethnicity, race, gender, sexual orientation or religion.” Obviously, that could not be the stated goal if FISA was going to authorize surveillance. Some other less authoritarian rationale would have to be provided. And, once the authority to monitor communications was obtained, it might not be intended to “suppress criticism” or “put people at a disadvantage,” however, that would not foreclose the possibility that an intelligence agency was stretching the limits of what was legal.
ODNI and the Justice Department go on to assert:
With limited exceptions (for example, in an emergency), our intelligence agencies must have a court order from the Foreign Intelligence Surveillance Court to target any U.S. citizen or lawful permanent resident for electronic surveillance.
These court orders are issued by an independent federal judge only if probable cause, based on specific facts, are established that the person is an agent of a foreign power, a terrorist, a spy, or someone who takes orders from a foreign power. [emphasis added]
“Agent of a foreign power” does not only mean foreign government, as one might understandably interpret this national security state jargon. An “agent of a foreign power” can be a “faction” of a foreign nation or nations. It can be a “foreign-based political organization that isn’t ‘substantially’ composed” of US persons. It can be a “political organization or a business that is directed or controlled by a foreign government.” It can be a group engaged or preparing to engage in “international terrorism.”
This definition within US intelligence frees officials to apply their own bias to organizations and groups and place individuals under surveillance as “agents of foreign power.” They can cite “research” from anti-Muslim terrorism industry “experts” such as Steve Emerson or Frank Gaffney, which can be easily discredited, to convince a FISA court judge that authorization for surveillance is needed.
“No US person can be the subject of surveillance based solely on First Amendment activities, such as staging public rallies, organizing campaigns, writing critical essays, or expressing personal beliefs,” ODNI and the Justice Department go on to state. Again, the word “solely” is important here. Rallies, organizing, essays and personal beliefs may be one of many factors that influence a perception and bias against a person, leading officials to target that individual.
Now, here comes the “but” part of the statement, the part where ODNI and Justice Department concede they might be doing something many Americans might be outraged about while at the same time pretending it’s all obviously permissible under regulations and the law.
“On the other hand, a person who the court finds is an agent of a foreign power under this rigorous standard is not exempted just because of his or her occupation,” ODNI and the Justice Department declare. Clearly, this statement is directed at American lawyers.
Gill and Ghafoor are both lawyers whose communications with their clients are supposed to be protected by attorney-client privilege. They sought to represent the Sudanese government in a case involving victims of Al Qaeda attacks. Ghafoor represented the Al Haramain Islamic Foundation, a Saudi charity which had its assets frozen by the US Treasury Department because the government claimed its US branch was funding terrorist operations. Ghafoor also represented “Mohammed Jamal Khalifa, a brother-in-law of Osama bin Laden who was the subject of FBI and CIA surveillance for years,” according to The Intercept.
Ghafoor and Gill are not House Majority Leader Dick Gephardt, who has represented Turkey. They aren’t former Senate Majority Leader Bob Dole, who represented the United Arab Emirates. They aren’t former Rep. Bob Livingston, who represented Libya. They aren’t former Clinton adviser Lanny Davis, who represented Honduras post-coup. It would be harder to convince a FISA court judge to authorize surveillance on them, even if their clients were people the NSA or FBI wanted to track. But Ghafoor and Gill, on the other hand, because they are Muslims, are targets intelligence agencies would calculate they could get away with monitoring.
Neither Ghafoor nor Gill would have anything criminal to hide either—except for the clients they represent may be involved in conduct that if found out would open them up to pursuit by the US government. If their clients knew Ghafoor or Gill were under surveillance (as they do now), they might decide to go to other lawyers or other law firms for representation.
Consider this in terms of collecting information and not just in terms of whether these people are spies, terrorists or agents of foreign powers (as is supposed to be done under FISA), the NSA and FBI could clearly calculate that they could get away with turning certain people into targets because they could be valuable sources of information. In other words, they are transformed into informants for the NSA or FBI without ever granting either agency consent or permission. The agencies never have to tell them they were mining information from their email accounts either.
Remarkably, this “on the other hand” statement would seem to conflict with the statement NSA spokesperson Vanee Vines provided to The Intercept for their story: “Representation of a foreign government in legal matters by itself does not make a U.S. lawyer an agent of a foreign power.”
But, again, there is that caveat: “by itself.” That means something else, always, has to accompany the representation so the spying can be cloaked in claims of legality.
Charlie Savage of the New York Times communicated with James McJunkin, a former assistant director of the FBI’s counterterrorism division. While he “declined to comment on any particular target,” generally, he did provide some revealing statements:
…[T]he FISA process allowed the government to respond to reporting, either by another part of the intelligence community or by a foreign partner, that an organization might be involved in raising money for ostensibly charitable purposes that is used abroad to train equip a terrorist group.
“We’ve got to determine whether that is in fact true, and that’s why you may have individuals in leadership positions who are targeted for FISA collection,” he said. “You can’t target the head of a civil rights organization for that. If you’re targeting an individual for FISA collection, you are doing so because you believe he has specific intelligence that can either prove or disprove a linkage to terror financing or material support.”…
McJunkin’s statements strongly raises the question of whether these five individuals were targeted as a pretext for something else.
All of these men have associations, connections and social networks with people whom could be potential targets for NSA or FBI intelligence gathering. So, fabricate a little. Reference some “research” from a “terrorism expert” about how networks of Islamists are connected and how some enemy group can be “linked” to a person. And then place that individual on a list.