What an XKeyscore Fingerprint Looks Like

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As part of its cooperation with New Zealand’s best journalist on that country’s SIGINT activities, Nicky Hager, the Intercept has published a story on the targets of a particular XKeyscore query (note: these stories say the outlets obtained this document; they don’t actually say they obtained it from Edward Snowden): top officials in the Solomon Islands and an anti-corruption activist there.

Aside from the targets, which I’ll get to, the story is interesting because it shows in greater detail than we’ve seen what an XKS query looks like. It’s a fairly standard computer query, though initiated by the word “fingerprint.” Some of it is consistent with what Snowden has described fingerprints to include: all the correlated identities that might be associated with a search. The query searches on jremobatu — presumably an email unique name — and James Remobatu, for example. As I have noted, if they wanted to target all the online activities of one particularly person — say, me! — they would add on all the known identifiers, so emptywheel, @emptywheel, Marcy Wheeler, and all the cookies they knew to be associated with me.

What’s interesting, though, is this query is not seeking email or other Internet communication per se. It appears to be seeking documents, right out of a file labeled Solomon government documents. Those may have been pulled and stored as attachments on emails. But the query highlights the degree to which XKS sucks up everything, including documents.

Finally, consider the target of the query. As both articles admit, the reason behind some of the surveillance is understandable, if sustained. Australia and New Zealand had peacekeepers in the Solomons to deal with ethnic tensions there, though were withdrawing by January 2013 when the query was done. The query included related keywords.

In the late 1990s and early 2000s the islands suffered from ethnic violence known as “The Tensions.” This led to the 2003 deployment to the Solomons of New Zealand, Australian and Pacific Island police and military peacekeepers. By January 2013, the date of the target list, both New Zealand and Australia were focused on withdrawing their forces from the island country and by the end of that year they were gone.

The XKEYSCORE list shows New Zealand was carrying out surveillance of several terms associated with militant groups on the island, such as “former tension militants,” and “malaita eagle force.” But with the security situation stabilized by 2013, it is unclear why New Zealand spies appear to have continued an expansive surveillance operation across the government, even tailoring XKEYSCORE to intercept information about an anti-corruption campaigner.

More specifically, however, the query was targeting not the militants, but the Truth and Reconciliation process in the wake of the violence.

I would go further than these articles, however, and say I’m not surprised the Five Eyes spied on a Truth and Reconciliation process. I would fully expect NSA’s “customer” CIA to ask it to track the South African and Colombian Truth and Reconciliation processes, because the CIA collaborated in the suppression of the opposition in both cases (going so far as providing the intelligence behind Nelson Mandela’s arrest in the former case). While I have no reason to expect CIA was involved in the Solomons, I would expect one or more of the myriad intelligence agencies in the Five Eyes country was, particularly given the presence of Aussie and Kiwi peacekeepers there. And they would want to know how their role were being exposed as part of the Truth and Reconciliation process. This query would likely show that.

Which brings me to the point the activist in question, Benjamin Afuga (who sometimes publishes leaked documents) made: this spying, which would definitely detail all cooperation between him and the government, might also reveal his sources.

Benjamin Afuga, the anti-corruption campaigner, said he was concerned the surveillance may have exposed some of the sources of the leaks he publishes online.

“I’m an open person – just like an open book,” Afuga said. “I don’t have anything else other than what I’m doing as a whistleblower and someone who exposes corruption. I don’t really understand what they are looking for. I have nothing to hide.”

Ah, but Afuga does have things to hide: his sources. And again, if one or another Five Eyes country had intelligence operatives involved both during the tensions and in the peace keeping process, they would definitely want to know them.

Again, this is all standard spying stuff. I expect CIA (or any other HUMINT agency) would want to know if they’re being talked about and if so by whom — I even expect CIA does a more crude version of this within the US about some of its most sensitive topics, not least because of the way they went after the SSCI Torture investigators.

But this query does provide a sense of just how powerful this spying is in a world when our communications aren’t encrypted.

Minh Quang Pham Gets His Day in Supreme Court

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I’ve long been tracking the case of Minh Quang Pham, whom I call the “graphic artist of mass destruction” because he is accused of helping Samir Khan on Inspire.

He was detained in the UK back in July 2011 (see the timeline). That December, the UK government tried to strip him of citizenship, but failed because that would have left him stateless (he’s originally from Vietnam but the government doesn’t treat him as a citizen). He was quickly charged here when efforts to strip him of UK citizenship failed. But since then, his citizenship case has been wending its way through the British courts.

Throughout this period, it was not officially recognized that Pham was the guy fighting for his citizenship.

Today and yesterday, his case was finally heard before UK’s Supreme Court, and his name made public. Here’s the Open Society report on his case (which also has a timeline!).

I suppose, if Pham loses, he will be sent to NY for trial. If he wins, he will force the UK to charge him there, which for a variety of reasons may get interesting. Remember: Pham should know the informant behind the UndieBomb 2.0 attack. Which may be why everyone wants to try him over here.

Under Cover: The Targets of Stings

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The NYT brought in Will Arkin (partnering with Eric Lichtblau) to talk about the proliferation of the use of undercover officials in government agencies. The Supreme Court, IRS, the Smithsonian, and DOD are all playing dress up to spy on Americans (and the IRS permits agents to pretend to be lawyers, doctors, clergy, and journalists).

The article makes it clear that — as might be imagined — the drug war is the most common focus of these undercover officers.

More than half of all the work they described is in pursuit of the illicit drug trade. Money laundering, gangs and organized crime investigations make up the second-largest group of operations.

But it doesn’t really step back and look at who else is getting targeted, which I’ve tried to lay on in this stable.

Screen shot 2014-11-16 at 12.07.12 PM

There are several concerning aspects of this list. I’m hoping the Smithsonian is using under cover officers solely to police the Holocaust and similar museums; the Holocaust museum, after all, has been targeted by a right wing terrorist recently. I might see the point on the Washington Memorial. But I do hope they’re no patrolling the Air and Space Museum because they might catch people who, like I did when I was in fifth grade, use the museum as a playground for stupid pre-teen drama while on a field trip.

DOD’s expanded use of undercover officers to target Americans is very troubling. The 9th Circuit recently threw out a conviction because the Navy had initiated the case searching data in the guise of protecting Spokane’s bases. I suspect, in response, the government will just get more assiduous at laundering such investigations. And it would be highly improper for them to do so clandestinely.

That said, this table is just as telling for what it doesn’t include as what it does.

If USDA is going undercover, why not send undercover inspectors to work in food processing plants, as a great way to not only show the food safety violations, but also the labor violations? Why not go undercover to investigate CAFOs?

The big silence, however, is about bank crime. While I’m sure SEC uses some undercover officers to investigate financial crime, you don’t hear of it anymore, since the failed Goldman prosecution. And we know FBI gave up efforts to use undercover officers to investigate (penny ante) mortgage fraud crime because, well, it just forgot.

But when DOJ’s Inspector General investigated what FBI did when it was given $196 million between 2009 and 2011 to investigate (penny ante) mortgage fraud, FBI’s focus on the issue actually decreased (and DOJ lied about its results). When FBI decided to try to investigate mortgage fraud proactively by using undercover operations, like it does terrorism and drugs, its agents just couldn’t figure out how to do so (in many cases Agents were never told of the effort), so the effort was dropped.

So it’s not just that Agencies are using undercover officers to investigate every little thing, including legitimate dissent, with too little oversight.

Its also that the government, as a whole, is using this increasingly to investigate those penny ante crimes, but not the biggest criminals, like the banksters. So long as the choice of these undercover operations reflects inherent bias (and it always has, especially in the war on drugs), then the underlying structure is illegitimate.

Jim Comey Scolds the Press for Reporting on a Court Filing

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Jim Comey, seemingly intent on squandering once limitless credibility in record time, has written a letter to the NYT to explain two of the FBI’s deceptive operations reported recently. The one that’s getting the attention — his admission that an agent posed as an AP reporter to catch a teenager making bomb threats — actually comes off as the less indefensible response.

Relying on an agency behavioral assessment that the anonymous suspect was a narcissist, the online undercover officer portrayed himself as an employee of The Associated Press, and asked if the suspect would be willing to review a draft article about the threats and attacks, to be sure that the anonymous suspect was portrayed fairly.

[snip]

That technique was proper and appropriate under Justice Department and F.B.I. guidelines at the time. Today, the use of such an unusual technique would probably require higher level approvals than in 2007, but it would still be lawful and, in a rare case, appropriate.

Sure, the FBI decided to dress up as the press to catch someone who hadn’t yet done real harm. Sure, they did it to deliver malware, basically a classic hack. Sure, it could have played to this kid’s narcissistic tendencies using any number of other fake identities. Sure, this was ultimately going to get made at least as public as a court docket, which does undermine the credibility of a brand name press outlet. But it was a fairly limited operation, that wouldn’t have generated this much attention if Chris Soghoian (in the process of writing a brief to prevent the FBI to hack with even fewer limits) weren’t such a meddling hippie.

Having insulted the press by asserting that the FBI playing dress up as the press is legal (though dodging somewhat on whether to do so to catch a teenager would be “proper” today), Comey then responded to the FBI’s other recent black eye — being accused of shutting off cable and then pretending to be cable repairmen to access hotel rooms without a warrant — this way.

The Las Vegas case is still in litigation, so there is little we can say, but it would have been better to wait for the government’s response and a court decision before concluding that the F.B.I. engaged in abusive conduct.

Every undercover operation involves “deception,” which has long been a critical tool in fighting crime. The F.B.I.’s use of such techniques is subject to close oversight, both internally and by the courts that review our work.

“It would have been better to wait for the government’s response and a court decision before concluding that the F.B.I. engaged in abusive conduct”???

Now, the reason the press picked up on this story is because the well-heeled defendants have superb lawyers who wrote a brief that is both engaging and chock full of evidence. The brief starts by laying out the stakes that matter for you and I, even if in this case they affect a bunch of Malaysian men who may have ties to Asian organized crime.

The next time you call for assistance because the internet service in your home is not working, the “technician” who comes to your door may actually be an undercover government agent. He will have secretly disconnected the service, knowing that you will naturally call for help and–when he shows up at your door, impersonating a technician–let him in. He will walk through each room of your home, claiming to diagnose the problem. Actually, he will be videotaping everything (and everyone) inside. He will have no reason to suspect you have broken the law, much less probable cause to obtain a search warrant. But that makes no difference, because by letting him in, you will have “consented” to an intensive search of your home.

Jim Comey thinks the press shouldn’t report on this until after the government has had its shot at rebuttal? Does he feel the same about the army of FBI leakers who pre-empt defense cases all the time? Does Comey think it improper for his FBI to have released this press release, upon defendant Wei Seng Phua’s arrest, asserting that he is a member of organized crime as a fact and mentioning a prior arrest (not a conviction) that may or may not be deemed admissible to this case?

According to the criminal complaint, Wei Seng Phua, is known by law enforcement to be a high ranking member of the 14K Triad, an Asian organized crime group. On or about June 18, 2013, Phua was arrested in Macau, along with more than 20 other individuals, for operating an illegal sport book gambling business transacting illegal bets on the World Cup Soccer Tournament. Phua posted bail in Macau and was released. 

I didn’t see the FBI Director complaining about press stories, written in response to the press release, reported before the defense had been able to present their side.

The point is, one reason we have laws governing open access to court documents — which the government limits all the time (including with claims about a broad need to hide the methods of its deception) — is so both sides get a bid to make their case, both before judges and before the public. Another reason is so that the press can act as a check on something that may be legal, but probably shouldn’t be.

It may well be that FBI gets to use the evidence from their cable repairman scheme (given that superstar appellate lawyer Tom Goldstein is on the case, the defendants probably don’t think this is as big of a slam dunk as the press has, probably because Caesars, a competitor with the Asian mob in the gambling industry, was a willing participant in the scheme, including turning off the cable service). But that’s an entirely different question from whether they should, for precisely the reason the brief lays out: because if the FBI can turn off our cable to set up a cable repairman cover, then it undermines the principle of consensual searches.

These guys may or may not be douchebag Asian mobsters. But they are also being tried in the United States, which still subjects its criminal procedure to fairly broad but by no means unlimited press scrutiny.

Which means the press gets to weigh in. The defense gets to make their case, and if they make a compelling case, the press will report it, just as they almost always report FBI press releases on face value, as they did in this case (to say nothing of FBI’s leaks).

Jim Comey, himself a master at working the press, should expect that, and if he wants his FBI to remain credible, should ensure their undercover operations are not just “legal” and “proper” but also “wise.”

A Good Reason to Encrypt Your iPhone: To Prevent DEA from Creating a Fake Facebook Account

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At Salon yesterday, I pushed back against the Apple hysteria again. In it, I look at the numbers that suggest far more Apple handsets are searched under the border exception than using warrants.

Encrypting iPhones might have the biggest impact on law enforcement searches that don’t involve warrants, contrary to law enforcement claims this is about warranted searches. As early as 2010, Customs and Border Patrol was searching around 4,600 devices a year and seizing up to 300 using what is called a “border exception.” That is when CBP takes and searches devices from people it is questioning at the border. Just searching such devices does not even require probable cause (though seizing them requires some rationale). These searches increasingly involve smart phones like the iPhone.

These numbers suggest border searches of iPhones may be as common as warranted searches of the devices. Apple provided account content to U.S. law enforcement 155 times last year. It responded to 3,431 device requests, but the “vast majority” of those device requests involved customers seeking help with a lost or stolen phone, not law enforcement trying to get contents off a cell phone (Consumer Reports estimates that 3.1 million Americans will have their smart phones stolen this year). Given that Apple has by far the largest share of the smart phone market in the U.S., a significant number of border device searches involving a smart phone will be an iPhone. Apple’s default encryption will make it far harder for the government to do such searches without obtaining a warrant, which they often don’t have evidence to get.

Almost 20% of Americans this year will have an iPhone, and that number will be far higher among those who fly internationally. If only 20% of 5,000 border searches involve iPhones, then there are clearly more border iPhone searches than warranted ones.

Meanwhile, we have an appalling new look at what law enforcement does once it gets inside your smart phone. A woman in Albany is suing DEA because — after she permitted DEA to conduct a consensual search of her phone — DEA then took photos obtained during the search, including one of her wearing only underwear, and made a fake Facebook page for her with them. They even sent a friend request to a fugitive and accepted other friend requests. They also posted pictures of her son and niece, on a site intended to lure those involved in the drug trade.

And they consider this a legitimate law enforcement activity!

In a court filing, a U.S. attorney acknowledges that, unbeknownst to Arquiett, Sinnigen created the fake Facebook account, posed as her, posted photos, sent a friend request to a fugitive, accepted other friend requests, and used the account “for a legitimate law enforcement purpose.”

The government’s response lays out an argument justifying Sinnigen’s actions: “Defendants admit that Plaintiff did not give express permission for the use of photographs contained on her phone on an undercover Facebook page, but state the Plaintiff implicitly consented by granting access to the information stored in her cell phone and by consenting to the use of that information to aid in an ongoing criminal investigations [sic].”

To be sure, DEA and FBI would still be able to obtain consensual access to phones, as they did in this case, by threatening people with harsher charges if they don’t cooperate (which appears to be how they got her to cooperate).

But this demonstrates just how twisted is the government’s view of legitimate use of phone data. The next time you hear a top officer wail about pedophiles, you might ask whether they’re actually the one planning to post sexy pictures.

Unit 8200 Refuseniks Make Visible for Israel What Remains Invisible in the US

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Last week, 43 reserve members of Israel’s equivalent to the NSA, Unit 8200, released a letter announcing they would refuse to take actions against Palestinians because the spying done on them amounts to persecution of innocent people. The IDF has responded the same way government agencies here would — scolding the whistleblowers for not raising concerns in official channels. But the letter has elicited rare public discussion about the ethics and morality of spying.

One of the allegations made by the refuseniks highlighted in the English press is that Israel used SIGINT to recruit collaborators, which in turn divides the Palestinian community.

The Palestinian population under military rule is completely exposed to espionage and surveillance by Israeli intelligence. While there are severe limitations on the surveillance of Israeli citizens, the Palestinians are not afforded this protection. There’s no distinction between Palestinians who are, and are not, involved in violence. Information that is collected and stored harms innocent people. It is used for political persecution and to create divisions within Palestinian society by recruiting collaborators and driving parts of Palestinian society against itself. In many cases, intelligence prevents defendants from receiving a fair trial in military courts, as the evidence against them is not revealed. Intelligence allows for the continued control over millions of people through thorough and intrusive supervision and invasion of most areas of life. This does not allow for people to lead normal lives, and fuels more violence further distancing us from the end of the conflict. [my emphasis]

These refuseniks, apparently, have access both to the intelligence they collect and how it is used. That means they’re in a position to talk about the effects of Unit 8200’s spying. And press coverage has made it sound like something that would uniquely happen to occupied Palestinians.

It’s not.

We know of one way that the NSA’s dragnet is definitely being used to recruit informants (aka collaborators), and another whether it it permissible to use.

The first way is via the phone dragnet. As I have noted, the government has twice told the FISA Court — once in 2006 and once in 2009 — that FBI uses dragnet derived information to identify people who might cooperate (aka inform or collaborate) in investigations. Once people come up on a 2-degree search, they are dumped into the corporate store indefinitely, data mined with sufficient information to find embarrassing and illegal things. Apparently, FBI uses such data to coerce cooperation, though we have no details on the process.

All the revealing things metadata shows? The government uses that information to obtain informants.

One way the government probably does this is by using the connections identified by metadata analysis (remember, this is not just phone and Internet data, but also includes financial and travel data, at a minimum) to put people on the No Fly list, regardless of whether they are a real threat to this country. Then, No Fly listees have alleged, FBI promises help getting them off that life-altering status if they inform on their community.

More troubling still is FBI’s uncounted use of warrantless back door searches of US person content when conducting assessments. As I noted, in addition to doing assessments in response to “tips,” the FBI will use them to profile communities or identify potential informants.

As the FBI’s Domestic Investigations and Operations Guide describes, assessments are used for “prompt and extremely limited checking out of initial leads.” No factual predicate (that is, no real evidence of wrong-doing) is required before the FBI starts an assessment. While FBI cannot use First Amendment activities as the sole reason for assessments, they can be considered. In addition to looking into leads about individual people, FBI uses assessments as part of the process for Domain Assessments (what FBI calls their profiling of Muslim communities) and the selection of informants to try to recruit. In some cases, an Agent doesn’t need prior approval to open an assessment; in others, they may get oral approval (though for several kinds, an Agent must get a formal memo approved before opening an assessment). And while Agents are supposed to record all assessments, for some assessments, they’re very cursory reports — basically complaint forms. That is, for certain types of assessments, FBI is not generating its most formal paperwork to track the process.

So while I can’t point to a DOJ claim to FISC that these back door searches are useful because they help find informants, it appears to be possible. Plus, as early as 2002, Ted Olson said they would use evidence of rape collected using traditional FISA to talk someone into cooperating (aka inform or collaborate); that was the reason he gave for blowing the wall between intelligence and criminal investigations to smithereens.

Indeed, knowing the way the government uses phone dragnet information as an index to collected content, the government may well use phone dragnet metadata to pick which Americans to subject to warrantless back door searches.

It sounds really awful when we hear about Israel using SIGINT — including information we provide without minimizing it — to spy on Palestinians.

But we have a good deal of reason to believe the US intelligence community — in collaboration — does similar things, spying on Muslim communities and using SIGINT to recruit collaborators that end up sowing paranoia and distrust in the communities.

Not only don’t we have a group of refuseniks who, among themselves, can explain how all of this works. But how the FBI uses all this data is precisely what the government intends to keep secret under the so-called “transparency” provisions of USA Freedom Act. While I will provide more detail in a follow-up post, remember that the FBI refuses to count its back door searches, which means it would be almost impossible for anyone to get a real sense of how these warrantless back door searches on US persons are used. It also has asserted it does not need to disclose evidence derived from Section 215 to criminal defendants, which is another way the evidence against defendants gets hidden.

It’s awful that Israel is doing it. But it’s even worse that we’re almost certainly doing the same, but that we can only find hints of how it is being done.

Pablo Escobar on a Train Using Data for Other Purposes

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Yesterday, AP reported that the DEA paid an Amtrak secretary $854,460 over 20 years to hand over train passenger lists.

According to a report released Monday by Amtrak’s inspector general, the DEA paid an Amtrak secretary $854,460 to be an informant. The employee was not publicly identified except as a “secretary to a train and engine crew.”

Amtrak’s own police agency is already in a joint drug enforcement task force that includes the DEA. According to the inspector general, that task force can obtain Amtrak confidential passenger reservation information at no cost.

There’s a lot that’s weird about this story. That Amtrak’s IG, and not DEA’s IG (that is, DOJ’s) IG found this problem. That the secretary was permitted to just fade into retirement.

But I’m most intrigued that DEA treated the secretary taking these bribes as an informant — with an anonymous federal law enforcement official justifying such an approach by pointing to the chemical company informant that helped bust Pablo Escobar.

It’s not unprecedented for law enforcement to have professional people who are informants employed in transportation and other industries, said a federal law enforcement official who is familiar with the incident involving Amtrak. The official spoke on condition of anonymity because the person was not authorized to speak on the record.

The official said that years ago during the investigation of drug lord Pablo Escobar, an informant at a U.S. chemical company provided a major assist to law enforcement by informing authorities that thousands of gallons of acetone were being shipped to Colombia. Acetone is used to manufacture cocaine.

DEA could have gotten this information for free, but it instead chose to dump 850K into getting it via other means, and the law enforcement side of this picture (DOJ) has not checked to see what DEA did with this data.

I can imagine why DEA would want to work via “informant” rather than regular law enforcement information sharing venues (and Amtrak is definitely part of that network). At the very least, it would permit them to shield the source of their data (as they shield the source of their data in the AT&T Hemisphere program). But it would also permit them to use the information for other off-book purposes.

But that appears not to be the concern of the IGs involved.

In a Nation Ravaged by Banksters, FBI Can’t Afford the “Luxury” of Frivolous Counterterrorism Stings

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In a JustSecurity post reviewing the same speech that I observed ignored US failures to prevent violent extremism, NYU Professor Samuel Rascoff defends the US use of counterterrorism stings, even in spite of the details revealed by HRW’s report on all the problems related to them. David Cole has an excellent response, which deals with many of the problems with Rascoff’s argument.

I’d like to dispute a more narrow point Rascoff made when he suggested that, because we have so many fewer trained militants than the Europeans, we “can[] afford” the “luxury” of stings.

There are now approximately 3,000 European passport holders fighting in Syria and Iraq. In the time that it took Najibullah Zazi to drive from Denver to New York, a fighter could drive from Aleppo to Budapest. What that means is that European officials are relatively more consumed than American counterparts in keeping up with, and tabs on, trained militants.   Orchestrating American-style sting operations is, in a sense, a luxury they cannot afford.

The claim is astonishing on its face, in that it suggests that, because we don’t have real militants like Europe does, we should engage in the “luxury” of entrapping confused young Muslim men and sending them to expensive decades-long prison terms.

Think a bit more about that notion of “luxury” and the financial choices we make on law enforcement. Here are some numbers taken from two sources: the HRW report (I basically searched on the dollar sign, though this doesn’t include every mention of dollars) and today’s Treasury settlement with Bank of America for helping 10 drug kingpins launder their money over a four year period, three years of which constituted “egregious” behavior.

First, HRW reports that FBI spends over $1.3 billion a year on counterterrorism, much of it stings, leaving less than $2 billion for all other investigations.

More than 40 percent of the FBI’s operating budget of $3.3 billion is now devoted to counterterrorism.

That allows the FBI to pay some of its informants and experts hefty sums.

Beginning in August 2006, the FBI paid Omar $1,500 per week during the investigation. Omar received a total of $240,000 from the FBI. This included: $183,500 in payment unrelated to expenses, and $54,000 for expenses incurred during the investigation including car repair and rent.

[snip]

“Kohlmann is an expert in how to use the Internet, like my 12-year-old. He has found all the bad [stuff] about Islam, and testifies as if what he is reading on the Internet is fact. He was paid around $30,000 to look at websites, documents, and testify.”

These informants sometimes promise — but don’t deliver — similar hefty sums to the guys they’re trying to entrap.

Forty-five-year-old James Cromitie was struggling to make ends meet when, in 2009, FBI informant Hussain offered him as much as $250,000 to carry out a plot which Hussain—who also went by “Maqsood”—had constructed on his own.

[snip]

The informant proposed to lend Hossain $50,000 in cash so long as he paid  him back $2,000 monthly until he had paid back $45,000.

Which is particularly important because many of these guys are quite poor (and couldn’t even afford to commit the crimes they’re accused of).

At the time he was in contact with the informant and the undercover [agent] he was living at home with his parents in Ashland and he didn’t have a car, he didn’t have any money and he didn’t have a driver’s license because he owed $100 and he didn’t have $100 to pay off the fine. In various parts of the investigation he didn’t have a laptop and he didn’t have a cellphone. At one point the informant gave him a cell phone.

And some of these crimes (the very notable exceptions in the HRW report include two material support cases, both of which are close calls on charity designations, but which involved very large sums, $13 million a year in the case of Holy Land Foundation) involve relatively minscule sums.

According to the prosecution, Mirza was the ringleader in collecting around $1,000—provided by the FBI agents and co-defendant Williams—that he handed to a middleman with the intent that it go to families of Taliban fighters.

So one theme of the HRW report is we’re spending huge amounts entrapping what are often poor young men in miniscule crimes so taxpayers can pay $29,000 a year to keep them incarcerated for decades.

These are the stakes for what Rascoff calls a “luxury.” At a time of self-imposed austerity, these stings are, indeed, a luxury.

Compare that to what happens to Bank of America, which engaged in “egregious” violations of bank reporting requirements for three years (and non-egregious ones for a fourth), thereby helping 10 drug kingpins launder their money. No one will go to jail. Bank of America doesn’t even have to admit wrong-doing. Instead, it will have to pay a $16.5 million fine, or just 0.14% of its net income last year.

This settlement came out of a Treasury investigation, not an FBI one.

But when DOJ’s Inspector General investigated what FBI did when it was given $196 million between 2009 and 2011 to investigate (penny ante) mortgage fraud, FBI’s focus on the issue actually decreased (and DOJ lied about its results). When FBI decided to try to investigate mortgage fraud proactively by using undercover operations, like it does terrorism and drugs, its agents just couldn’t figure out how to do so (in many cases Agents were never told of the effort), so the effort was dropped.

Banks commits crimes on a far grander scale than most of these sting targets. But FBI throws the big money at its counterterrorism stings, and not the banks leaching our economy of its vitality.

Rascoff accuses HRW’s and similar interventions of being one-dimensional.

[F]or all the important questions about official practices that critics raise, they have tended to ignore some hard questions about the use of stings and the tradeoffs they entail.Instead, their interventions have an exaggerated, one-dimensional quality to them.

But he himself is guilty of his own crime. Because every kid the FBI entraps in a $240,000 sting may represent an actual completed bank crime that will never be investigated. It represents an opportunity cost. The choice is not just sting or no sting or (more accurately, as David Cole points out) sting or community outreach and cooperation.

Rather, the choice is also between manufacturing crimes to achieve counterterrorism numbers or investigating real financial crimes that are devastating communities.

So long as we fail to see that tradeoff, we fail to address one major source of the economic malaise that fuels other crimes.

Ignoring bank crimes is, truly, something we don’t have the luxury of doing. Nevertheless, we continue to choose to go on doing so, even while engaging in these “luxurious” counterterrorism stings that accomplish so little.

Anonymous Pushback Emphasizes that Surveillance Leads to Informants

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I’ve already suggested I suspect the government falsely claimed it didn’t have a a FISA warrant on CAIR’s Executive Director Nihad Awad in an attempt to gain an advantage in EFF’s suit challenging the phone dragnet.

The conflicting denials anonymous officials gave to ABC about the story — with one senior official implying the people the Intercept profiled actually were profiled, but other current and former officials claiming the Intercept may have misunderstood what they were looking at — don’t change that suspicion in the least.

A senior government official said without knowing the underlying probable cause presented to a federal judge from the FISA court in each case, Greenwald and The Intercept cannot know why the e-mails of the purported targets were collected.

As a result, the official said, Greenwald and Snowden cannot know whether the surveillance revealed evidence or intelligence in each case that was incriminating or exculpatory — or whether some targets later cooperated with the FBI. Several officials said it was “irresponsible” to name individuals as surveillance targets when no public court record exists. The identified targets could be guilty or innocent or even cooperating with the government, the officials said.

“You don’t know if somebody was later approached to become an informant,” the senior official said. “To the extent any of these people were targets, [The Intercept report] is a serious compromise. And if they weren’t targets, they shouldn’t be named.”

The Intercept said many of the emails on the spreadsheet titled “FISA Recap,” which they said Snowden provided, “appear to belong to foreigners whom the government believes are linked to al Qaeda, Hamas and Hezbollah.” But the report says their three-month investigation showed that “in practice, the system for authorizing NSA surveillance affords the government wide latitude in spying on U.S. citizens.”

However, current and former U.S. officials told ABC News that Snowden or Greenwald may have misunderstood some of the NSA documents, which they reported are spreadsheets with 7,485 email addresses, including many among multiple accounts by individuals.

“You should not assume all of the names Glenn Greenwald has were targets of surveillance,” a senior official familiar with Snowden’s pilfered cache told ABC News last week.

A former senior official once closely involved in the FISA warrant process told ABC News that The Intercept’s reporters were repeatedly warned by him that they “were getting it wrong” in how they interpreted what the NSA spreadsheets from Snowden signified. The documents also were curiously absent of the markings secret files typically carry which denote its specific level of classification and distribution limitations.

“The documents indicated to me that they were not targets,” the former official said. [brackets original, emphasis mine]

Surely DOJ will point to any doubts about the document in an effort to prevent it from being used to obtain standing to sue.

I’m just as interested in the logic the anonymous senior official used to say these names shouldn’t be released: that the person might have been approached to be an informant!

Sure, I get why the FBI probably wouldn’t want its informants exposed (though more and more GWOT era informants have exposed themselves without being harmed).

But I’m particularly interested in how quickly this official talked about informants. As Ted Olson did, more obliquely, back in 2002.

NSA has offered hint after hint that its surveillance does serve to identify people to coerce into informing. I find it odd that this official, hiding behind the veil of anonymity, introduces it with such little self-awareness.

The Associations behind FBI’s No Fly Informant Coercion

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Before I disappeared on my trip last week, the WaPo and others reported on a new suit against the FBI for using the No Fly list to coerce Muslims to become informants, one of whom, Naveed Shinwari, talked about it with Democracy Now as well.

WaPo included a quote from a former senior FBI official dismissing the notion that someone might be added to the No Fly lists to coerce them to inform.

A former senior FBI official said that there are criteria for putting people on the list and that refusing to work as a confidential informant is not one of them.

“That’s not a reason,” the former official said. “It has nothing to do with potential threats to aviation.”

That is, FSFBIO claims there are criteria that must be met before placing someone on the No Fly list.

Let’s take the FSFBIO at his (or her) word, and imagine that the FBI singled out the four plaintiffs in this suit for some reason, and only then used the No Fly status as leverage to try to coerce an informant. Because the sort of things that appear to have gotten the FBI interested in these plaintiffs is just as telling as that, after learning the men weren’t threats, the FBI then tried to use their No Fly status to flip them.

At least according to the complaint, the FBI seems to have focused on these men because of who they knew or what they may have done online.

Naveed Shinwari

Naveed Shinwari, whom Amy Goodman interviewed above, was first questioned in Dubai on his way back from his wedding in Afghanistan in February 2012. At that point, they asked general questions about his trip to Afghanistan, including whether he had visited any training camps on his trip.

But a month later, the FBI asked about videos he had watched online.

Agents Dun and Langenberg began the meeting by asking Mr. Shinwari to think about the reasons why he may have been placed on a watch list. Mr. Shinwari said that he did not know. The agents then asked Mr. Shinwari about videos of religious sermons that he had watched on the internet. Mr. Shinwari responded that he watched the videos to educate himself about his faith.

Last December though, in response to Shinwari’s second TRIP complaint (DHS’ ineffective recourse process), DHS suggested the whole thing had been a mistake.

The letter stated, in part, that Mr. Shinwari’s experience “was most likely caused by a misidentification against a government record or by random selection,” and that the United States government had “made updates” to its records.

Since then, Shinwari has flown domestically once, but says he has become reluctant to share his religious and political views with others.

Awais Sajjad

Like Shinwari, Awais Sajjad may have first come to attention of FBI because of a trip to a wedding — that of his brother — in Pakistan.

He was first prevented from flying when trying to visit his father and grandmother in Pakistan in September 2012. In that interrogation, he was asked about his friends in the US. But in a follow-up interrogation a month later, the FBI asked for specifics about a trip he had made the previous year.

Once inside Mr. Sajjad’s home, the agents asked Mr. Sajjad many questions, including questions about his last trip to Pakistan in 2011, why he went and which cities he visited on that trip. Mr. Sajjad replied that he went to Pakistan to attend his brother’s wedding.

But then, as part of the same interrogation, they asked if he watched bomb-making videos on YouTube.

On the way, they asked Sajjad whether he had watched bomb-making videos on YouTube, to which he replied that he had not, that he only watches movies and music videos.

More recently, in an interview without the presence of his counsel, the FBI asked what Sajjad would do if his family members were involved in a terrorist attack.

They asked him hypothetical questions regarding what he would do if he were to find out that any of his relatives or friends were involved in a terrorist attack.

At that same interview, however, one of the FBI Agents told Sajjad he was not a threat to America.

Agent John Doe #13 told Mr. Sajjad that he had been watching Mr. Sajjad for the last two years and knew that Mr. Sajjad did not do anything wrong and was not a “terrorist” or a threat to America.

As far as Sajjad knows, he remains on the No Fly list.

Muhammad Tanvir

The FBI first approached Muhammad Tanvir back in 2007, when out of the blue they came to his workplace to interview him. At that very first interview, they asked about “an old acquaintance” who apparently had tried to enter the US illegally.

They asked him about an old acquaintance whom the FBI agents believed had attempted to enter the United States illegally.

Then, as he returned from a 2008 trip to visit his wife in Pakistan, agents (possibly DHS) interrogated him for 5 hours and confiscated his passport. Just before he was supposed to go back to DHS to get it back, the FBI showed up to his workplace again. This time, they asked questions about Taliban training camps, but also his rappelling skills.(!)

The FBI agents asked Mr. Tanvir about terrorist training camps near the village where he was raised, and whether he had any Taliban training. The agents also referred to the fact that at his previous job as a construction worker, Tanvir would rappel from higher floors while other workers would cheer him on. They asked him where he learned how to climb ropes. Mr. Tanvir responded that he never attended any training camps and did not know the whereabouts of any such camps. He also explained to the FBI agents that he grew up in a rural area, where he regularly climbed trees and developed rope-climbing skills.

Immediately after that interview, DHS returned Tanvir’s passport, saying he had been cleared. But he was prevented from flying after that point — in 2010 domestically,and twice in 2011 and once in 2012 to Pakistan — because he had gotten placed on the No Fly List. All that time, the FBI continued to pressure him to inform.

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