For 7 Years, FBI Defied Law for Seeking a Person’s Records Under Patriot Act

Screen shot 2015-05-21 at 1.34.18 PM

A Justice Department inspector general’s report shows that for seven years the Federal Bureau of Investigation violated statutory law designed to restrict the agency’s surveillance power. During this period, the agency sought individuals’ records under the business records provision of the PATRIOT Act without adopting proper “minimization procedures” to protect privacy of US persons.

The FBI’s use of orders under Section 215 between 2007 and 2009 was examined by the inspector general. Whether the FBI complied with recommendations the inspector general made back in March 2008.

Section 215 makes it possible for the government to obtain “any tangible things,” such as books, records and other items from a business, organization or entity. They are supposed to be “relevant” to an “authorized investigation to obtain foreign intelligence information not concerning a US person or to protect against international terrorism or clandestine intelligence activities.” But the standard for relevance is very low.

The Section 215 provision is set to expire on June 1, and, as Senator Rand Paul comprehensively outlined while he held the Senate floor for over ten hours, there are many reasons to not reauthorize the provision. This report, which was completed eleven months ago but is dated May 2015, adds substantially to those reasons.

Under the PATRIOT Improvement and Reauthorization Act of 2005, the law required that certain “minimization procedures” be adopted to ensure the handling of US persons’ data was done appropriately. It was not until March 7, 2013, that the Attorney General and the Justice Department officially incorporated these procedures into requests for records. (Marcy Wheeler points out the Justice Department did not actually fully comply with legally required procedures until after NSA whistleblower Edward Snowden disclosed information.)

“The Attorney General’s and the [Justice] Department’s actions came 7 years after such procedures were required by the Reauthorization Act and 5 years after we concluded the interim procedures in 2006 were deficient,” the inspector general’s report [PDF] indicates.

In an understatement, the inspector general declares that the Justice Department “should have met its statutory obligation considerably earlier than March 2013.”

The report suggests that FBI personnel have made “strategic use of the legislative and technological changes by broadening the scope of materials sought in applications. Section 215 authority is not limited to requesting information related to the known subjects of specific underlying investigations. The authority is also used in investigations of groups comprised of unknown members and to obtain information in bulk concerning persons who are not the subjects of or associated with any FBI investigation.”

That seems hugely significant. FBI personnel are permitted to request records of persons who are not subjects of underlying investigations. The FBI uses the PATRIOT Act to request records on people when they do not even have an FBI investigation into those individuals.

FBI personnel with authorized access are apparently permitted to engage in some action involving records, which the Justice Department believes must keep secret. This action is used to determine whether records “reasonably appear to be foreign intelligence information, necessary to understand foreign intelligence information or evidence of a crime.”

National Security Division attorneys in the Justice Department and FBI case agents provided the inspector general with a “range of examples of material that would qualify under this criteria.” It is impossible for the public to know what this means because the Justice Department had it censored in the report.

Another term the FBI has conjured to expand its surveillance powers is “investigative value.” This is a term the inspector general discovered the FBI had introduced for allowing case agents “unconnected with the underlying investigation access to material received in response” to a Section 215 order. However, what “investigative value” means to the FBI and just how it stretches the boundaries of what the agency is authorized to do is anyone’s guess because, again, the agency’s definition is censored in the released report.

The “type of information that is categorized as metadata will likely continue to evolve and expand,” the report acknowledges. The FBI is obtaining “large collections of metadata,” which is data about the records but not the exact content from the records themselves. “Electronic communication transaction information” and two other types of data, which the FBI does not want the public to know about, are being sought through this provision of the PATRIOT Act. (more…)

Preemptive Prosecution: Iraqi American Arrested by FBI for Allegedly Lying About ‘Pledging Allegiance’ to ISIS Leader

J. Edgar Hoover Building - FBI Headquarters

An Iraqi-born US citizen in Mesquite, Texas, was arrested by the FBI for allegedly lying to agents about whether he had pledged allegiance to the “self-proclaimed” leader of the Islamic State, Abu Bakr al-Baghdadi. A federal judge ruled a day later that he is a “danger to the community” and must remain in jail.

One CNN report suggests this is an example of the government adopting a new and more aggressive stance in the aftermath of an attack on the Mohammed cartoon contest in Garland, Texas. Agents are taking “possible threats off the streets, instead of waiting longer to monitor and build an investigation against suspects.”

Yet, as in most FBI cases involving alleged terrorism suspects, this again seems like a preemptive prosecution, where an individual has been targeted because of his beliefs, ideology or religious affiliations that raise concerns for the government. It is a law enforcement practice that resembles practices that were relied upon by the FBI during the days of J. Edgar Hoover’s COINTELPRO.

There is absolutely no evidence presented in a filed criminal complaint to suggest that Bilal Abood was plotting a terrorist attack. He is not accused of having weapons. The complaint lacks any evidence to suggest he was communicating with anyone in the Islamic State. However, he has been criminalized as if he is a terrorist.

The FBI appears to have started to spy on Abood as early as March 2013.

On March 29 of that year, the FBI claims he attempted to board a flight to join the fight against Bashar al-Assad’s regime with the Free Syrian Army. He was not allowed to travel, and, when FBI agents questioned him, he allegedly told agents he had only planned to visit family in Iraq.

What reasonable suspicion existed to stop Abood? That is not included in the criminal complaint.

On April 29, the FBI did not stop him when he traveled through Mexico and various other countries to get to Turkey.

Abood returned to the US on September 15. The FBI questioned him again. He allegedly admitted he traveled to Syria through Turkey and stated he had gone to Syria to fight with the Free Syrian Army. He stayed in a Free Syrian Army camp. But he denied that he had provided any “financial support” to the al-Nusrah Front or the Islamic State.

The FBI had his computer seized months later. Agents reviewed the contents on July 9, 2014. It allegedly revealed that he had “pledged an oath” to al-Baghdadi and viewed videos of Islamic State “atrocities such as beheadings” on the internet, according to the complaint.

Abood also allegedly used his Twitter account to “tweet and retweet information on al-Baghdadi.”

“I pledge obedience to the Caliphate Abu Bakr al-Baghdadi. Here we renew our pledge to the Caliphate Abu Bakr al-Baghdadi come on supporter where is the pledger,” Abood allegedly tweeted on June 19, 2014

FBI agents arrived at his home on April 14, 2015, nearly nine months after a review of his computer was conducted. The agents allegedly asked Abood if he knew it was a crime to lie to an FBI agent. Abood answered yes. Abood was then asked if he had pledged allegiance to al-Baghdadi. Abood denied ever pledging allegiance and, since agents have a tweet suggesting he has pledged allegiance, the agents knew they had managed to get Abood to commit a crime.

But what made Abood an FBI target in the first place?

About the time that the FBI was spying on Abood’s movements the CIA was reportedly sending shipments of arms to Syrian rebel groups, like the Free Syrian Army. It seems preposterous for the US government to criminalize someone for showing interest in a foreign militant group backed by the US government.

The complaint indicates there was an informant involved. The informant allegedly reported that Abood was watching “al Qaeda videos on social media, along with videos about the creation of [the Islamic State].” He allegedly wanted to “help build the Islamic State.”

How was Abood planning to do that from a small city in Texas?

There are clear implications for freedom of expression if these statements are going to be enough in this country to criminalize and prosecute someone like they are a terrorist.

Abood’s girlfriend, Barbara Strebeck, has spoken out since the FBI arrested him. She claims the FBI retaliated against him because they requested he become a “spy” for them when he was planning to travel to Syria. He refused to be their informant.

She told a local CBS affiliate that Abood traveled to Syria because he was “curious about what was going on.” She defended him saying she has been with him for five years and he loves her and her kids and grandkids.

Strebeck insists the FBI setup Abood and that the “laptops federal authorities seized were only used to play video games, not to recruit” for the Islamic State.

What Strebeck and the FBI might agree upon is that of the active “cases” the FBI file, Abood was one of the best cases available to get a quick arrest and make it seem like the FBI was being appropriately vigilant in the aftermath of the attempted attack in Garland.

The public has no exact quotes said by Abood during any of the encounters with FBI agents; just a summary included in the criminal complaint.

Although there is still much to be learned about Abood’s case and how he came to be an FBI target, it fits a pattern where Muslim Americans are asked to be government informants and if they refuse they are coerced by being put on the watchlists, like the No Fly List. They become surveillance targets and eventually may even become the target of a sting operation, where they are induced to plan a terrorist attack so the FBI can claim they are keeping Americans safe from terrorism.

Creative Commons Licensed Photo from Flickr by cliff1066

In First Interview, CIA Whistleblower Jeffrey Sterling Says Congressional Staffer Urged Him to Flee

In his first interview since he was charged with leaking details of a botched CIA operation to New York Times reporter James Risen, CIA whistleblower Jeffrey Sterling says that he had a meeting with a staffer for Congressman William Lacy Clay and was urged to flee the United States.

Sterling, who worked as an African American case officer, was found guilty by a jury of committing multiple Espionage Act offenses when he exposed information about “Operation Merlin,” which involved passing flawed nuclear blueprints to Iran in order to get the country to work on building a nuclear weapon that would never function.

He left the CIA in 2002 and brought a claim against the CIA alleging racial discrimination. He appealed his case all the way to the Supreme Court in 2005. However, the government successfully had the case thrown out by invoking the “state secrets” privilege. The government has maintained that he leaked details about Operation Merlin in revenge for his discrimination lawsuit being dismissed.

Sterling was sentenced to three and a half years in prison on May 11. It is the longest sentence issued by a federal court during President Barack Obama’s administration.

Expose Facts, an advocacy organization that has mobilized support for Sterling, conducted an interview with Sterling, which aired on “Democracy Now!”.

Sterling recalls receiving information that there was a “possible leak of information” and “everyone” was “pointing a finger” at him. He needed to find some help.

He went to a local congressman, Clay, and one of his staff members looked at him and told him he should “just leave the country.” That hurt Sterling because the staff member was a black man working for a black representative and they were telling him not to stand up for his civil rights.

“You don’t run away. You stand up for yourself,” Sterling declares.

Sterling and his wife, Holly, describe what happened after Risen published details about “Operation Merlin” in a chapter of his book, State of War, in 2006. FBI agents came to their door.

“They flew me out to Virginia, and I went to FBI headquarters and was interrogated for seven hours,” Holly recalls. “And then, the next day they surrounded the home actually. They just went methodically through the home. They went to my family. They went to my employer. It’s incredibly intrusive and incredibly disturbing. You’re whole sense of security in your home and privacy was violated.”

Jeffrey mentions that he thought he would be arrested. He was not, and it was not until more than four years later that he was charged on January 6, 2011. At that point, he was arrested.

The trial started very soon after and was delayed as the government sought testimony from Risen. Sterling expresses how it bothered him that he was the defendant being prosecuted and the press transformed the case into the “Risen case,” which meant there was little discussion about how the government was going after him.

Sterling says that he is still “in shock” about the fact that he was found guilty by a jury. He adds that the government shut him up with his discrimination case, and “they’ve closed the door with the criminal case.” (more…)

Former CIA Officer Jeffrey Sterling Sentenced to Jail for Leaking to Journalist

Jeffrey Sterling (Photo by Institute for Public Accuracy)

Former CIA officer Jeffrey Sterling was sentenced to three and a half years in prison for leaking information to a journalist. It was the longest sentence issued by a federal court during President Barack Obama’s administration.

During a trial in January, the government convinced a jury, with largely circumstantial evidence, that Sterling leaked information about a top secret CIA operation in Iran called “Operation Merlin” to New York Times reporter James Risen, who published details on the operation in a chapter of his book, State of War. “Operation Merlin” involved the passage of flawed nuclear blueprints to Iran in order to get them to work on building a nuclear weapon that would never function.

He was convicted of violations of the Espionage Act and other offenses. The government had argued a sentence ranging from 19.5 to 24 years in prison would be reasonable.

Judge Leonie Brinkema, according to Times reporter Matt Apuzzo, said Sterling had “jeopardized the safety of a CIA informant.” And, “Of all the types of secrets kept by American intelligence officers, she said, ‘This is the most critical secret.’”

“If you knowingly reveal these secrets, there’s going to be a price to be paid,” Brinkema added. Sterling had to be punished in order to send a message to other officials, who might consider revealing these kinds of secrets.

Still, Brinkema did not issue a sentence that advocates for Sterling had feared might be issued against him.

“This is the least worst outcome,” Jesselyn Radack, director of the Government Accountability Project’s National Security and Human Rights division, declared. “I expected it to be worse given the huge amount of time that the government was requesting. That said, in my opinion, any jail time is excessive in light of the sweetheart plea deal that [David] Petraeus received for leaking classified information to his mistress.”

Sterling’s defense had argued [PDF] that the court could not “turn a blind eye to the positions the government has taken in similar cases.”

The government agreed to sentence Petraeus to two years of probation and a fine of $40,000 (which the judge hearing the case increased to $100,000). It was lenient considering the fact that Petraeus leaked “Black Books” containing the names of covert officers, war strategy notes, discussions from high level National Security Council meetings and notes from his meetings with President Barack Obama. He also lied to the FBI but was not charged with perjury or obstruction of justice. And the government allowed him to plead guilty to a misdemeanor violation instead of a violation of the Espionage Act.

“Sterling should not receive a different form of justice than General Petraeus,” Edward MacMahon Jr. suggested. (more…)

Federal Appeals Court Reverses Nun & Army Veterans’ Sabotage Act Convictions

Transform Now Three (Photo from Transform Now Plowshares)

A federal appeals court has reversed convictions in the case of an 85-year-old nun and two Army veterans, who broke into a United States government facility holding weapons-grade uranium, and called for nuclear weapons to be transformed into “real life-giving alternatives to build true peace.”

The activists’ sentences were vacated, and the appeals court ordered a lower court to re-sentence them.

On June 28, 2012, Megan Rice, a nun, and Greg Boertje-Obed and Michael Walli, both veterans, cut through multiple fences around the Y-12 National Security Complex in Oak Ridge, Tennessee.

The activists were able to get to a Department of Energy building with enriched uranium. “There the trio spray-painted antiwar slogans, hung crime tape and banners with biblical phrases, splashed blood, and sang hymns,” according to the Sixth Circuit Court of Appeals’ decision [PDF].

The activists struck the building with small hammers, and their action effectively delayed a shipment that was supposed to arrive that afternoon.

Initially, the government charged the activists with trespassing and “injuring government property. When they refused to plead guilty, prosecutors essentially made a vindictive move and charged them with “violating the peacetime provision of the Sabotage Act,” which “Congress enacted during World War II.”

“That provision applies only if the defendant acted ‘with intent to injure, interfere with, or obstruct the national defense,’ and authorizes a sentence of up to 20 years,” the appeals court explained. “A jury convicted the defendants on the sabotage count and the injury-to-property count.”

The activists argued that they had no intent to violate the Sabotage Act and could not have violated this law. The federal appeals court agreed.

By using the Sabotage Act to prosecute a nun and two Army veterans who dared to engage in an act of nonviolent resistance against nuclear weapons, the government sought to accuse them of planning to interfere with the ability of the government to maintain national security.

“No rational jury could find that the defendants had that intent when they cut the fences; they did not cut them to allow al Qaeda to slip in behind,” the appeals court declared. “Nor could a rational jury find that the defendants had that intent when they engaged in their protest activities outside the [Highly Enriched Uranium Materials Facility].”

True, their ultimate goal in engaging in those activities was to advance the cause of disarmament, by persuading Y-12’s employees to abandon their pursuits there. But “the ultimate end” that “compel[s] the defendant to act . . . is more properly labeled a ‘motive.’” Kabat, 797 F.2d at 587. And the defendants’ immediate purpose in hanging the banners themselves, and in otherwise erecting their shrine outside the HEUMF, was simply to protest.

Such a conclusion is a huge victory for activists, because it means the government cannot stand in court and equate an act of protest with sabotage without evidence of motive.

The appeals court also rejected the idea that the defendants meant to interfere with the national defense by creating “bad publicity” for the facility.

“First Amendment issues aside, it takes more than bad publicity to injure the national defense,” the appeals court concisely declared. (more…)