What Went Into the FBI Intelligence That Will Be in NCTC’s Database for Five Years?

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Last year, after Spencer Ackerman exposed some of the Islamophobic materials the FBI was using to train its counterterrorism agents, the FBI conducted a review of its training materials to weed out such counterproductive materials.

Unsurprisingly, as Spencer reports today, they found additional offensive and just downright stupid materials.

A sample of that possibly harmful training comes from a document on “Establishing Relationships,” which instructed: “Never attempt to shake hands with an Asian. Never stare at an Asian. Never try to speak to an Arab female prior to approaching the Arab male first.”

Another document, titled “Control and Temper,” contrasted the “Western Mind” with that of the “Arab World.” The “Western” mind possessed an “even keel” and “outbursts” of emotion were “exceptional.” In the “Arab World,” by contrast, “Outburst and Loss of Control [is] Expected.” A bullet point below asked, “What’s wrong with frequent Jekyll & Hyde temper tantrums?”

But now, they’re trying to just bury it–they’re withdrawing it, sure, but they’re not doing anything to counteract the damage this may have done in training agents.

Which makes this detail exposed in the FBI’s own review all the more troubling:

One FBI PowerPoint — disclosed in a letter Durbin sent to FBI Director Robert Mueller on Tuesday and shared with Danger Room — stated: “Under certain circumstances, the FBI has the ability to bend or suspend the law to impinge on the freedom of others.”

Among the things FBI refuses to do in response to this report is to review intelligence reports collected subsequent to being trained that–among other things–sometimes it’s okay to “suspend the law to impinge on the freedom of others.”

For example, was any of the “intelligence” gathered during Muslim outreach activities in the San Francisco Bay Area collected by such Agents? As the ACLU reported yesterday, here are some of “intelligence collection” activities done in the guise of outreach.

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, raising First Amendment concerns. Despite an apparent lack of information related to crime or terrorism, the FBI’s records of discussions with mosque leaders and congregants were all classified as “secret,” marked “positive intelligence,” and disseminated outside the FBI.
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The WMD Charges against White People Get Thrown Out

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As Bane of Our Existence and Dirty Masquerade have been noting in comments, the case against the Hutaree Militia has been crumbling in court. Today, Judge Victoria Roberts threw out most of the charges against most of the defendants, based on her judgment that the government had based its conspiracy charges on speculation. Among those charges are the Conspiracy to Use WMD which–as I’ve noted in the past–was one of the few times white defendants have been charged with what is a garden variety charge against Muslim defendants who are caught in stings.

Some of the case law Roberts relies on for her case is specific to the 6th Circuit. Nevertheless, her opinion lays out principles that would–if applied to Muslims–undermine the cases against brown terrorists are significantly as it has against these white alleged terrorists (not to mention Manssor Arbabsiar and two of the four Waffle House plotters).

First, she lays out that a conspiracy must entail explicit agreement to a specific plot.

In order to sustain a conviction for conspiracy, the Government must prove that each Defendant: (1) agreed to violate the law; (2) possessed the knowledge and intent to join the conspiracy; and (3) participated in the conspiracy. See United States v. Sliwo, 620 F.3d 630, 633 (6th Cir. 2010); see also Sixth Circuit Pattern Jury Instructions §§ 3.01A, 3.03 (To prove a conspiracy, the government must show that (1) two or more individuals conspired to commit the crime; and (2) that each defendant voluntarily joined the conspiracy, knowing of its main purpose and intending to help advance its goals.). In addition, a conspiracy requires a specific plan. See Pinkerton v. United States, 145 F.2d 252, 254 (5th Cir. 1944) (holding that a criminal conspiracy requires (1) an object to be accomplished; (2) a plan or scheme embodying means to accomplish that object; (3) an agreement by two or more defendants to accomplish the object; and (4) an overt act, where applicable); see also United States v. Bostic, 480 F.2d 965, 968 (6th Cir.1973).

Roberts goes on to note that the law requires evidence that each alleged conspirator entered into the conspiracy; guilt by association is not enough.

The issue of guilt or innocence in a conspiracy is always an individualized inquiry. Kotteakos v. United States, 328 U.S. 750, 772 (1946) (“Guilt with us remains individual and personal, even as respects conspiracies. It is not a matter of mass application.”). The government must prove the intent of each individual conspirator to enter into the conspiracy, knowing of its objectives, and agreeing to further its goals. See Sixth Circuit Pattern Jury Instruction § 3.03. Consistent with these principles, it is useful to note that there are two distinct intents required to prove the crime of conspiracy — the basic intent to agree, which is necessary to establish the existence of the conspiracy, and the more traditional intent to effectuate the object of the conspiracy. United States v. United States Gypsum Co., 438 U.S. 422, 443 n.20 (1978); Sixth Circuit Pattern Jury Instruction, Committee Commentary 3.03; 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 12.2 (2d ed. 2011).

All the more so, Roberts lays out, when the alleged conspiracy entails the freedom of assembly.

Where a conspiracy implicates First Amendment protections such as freedom of association and freedom of speech, the court must make a “specially meticulous inquiry” into the government’s evidence so there is not “an unfair imputation of the intent or acts of some participants to all others.” Read more →

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Is It Possible 20 Were Killed at Panjwai, 3 by Another Soldier?

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Update: See this post, which gives DOD’s latest update on the lack of military operations during the attack.

According to Amy Davidson, the explanation that Robert Bales’ 17th victim was an unborn child, which I noted here, has been debunked. That explanation was based on the presence of an unnamed Afghan male–listed as murder charge 5–in Bales’ charge sheet. But that explanation missed another unnamed victim–this one a female–under murder charge 4.

So let’s take a step back, and consider another possibility: that there are actually more than 17 victims, several of whom Afghans aren’t naming, and possibly at least one other solider known to have killed at least 3 Afghans as well. Here’s why I think that may be true.

First, when asked about the discrepancy in numbers yesterday, here’s how General John Allen answered.

Q:  General, one quick housekeeping thing and then a question. There’s been some ongoing confusion over the jump in the number of casualties from 16 to 17.  I was wondering if you might be able to discuss that briefly.

[snip]

GEN. ALLEN:  I’m getting your one question in three parts here, so give me just a second.  And if I miss one, let me — just tell me.

There is a — there was an increase in the number of what we believe to have been those who were killed tragically in this event. But this is — the number increased was based upon the initial reporting by the Afghans.  And so we should not be surprised that in fact, as the investigation went forward, that an — that an additional number was added to that.  So that is something that we understand and we accept, and as the investigation goes forward, we’ll get greater clarity in that.

[snip]

Q:  (Off mic) — 16 versus 17, did the — just to be clear — did the Afghans miscount?  Did someone die after the initial assessment?

GEN. ALLEN:  We’ll have to let that come out in the investigation.

Note that he never says 17 is the correct number. Rather, he says the original number came from the Afghans, “there was an increase in the number,” and “we’ll have to let” the correct number “come out in the investigation.”

All that is perfectly consistent with the number being greater than the 17 the reporters are working with, which is based on Bales’ charge sheet.

So now compare Bales’ charge sheet with the two lists offered by Afghans.

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Abdulelah Haider Shaye and Anwar al-Awlaki’s Emails

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Al-Jazeera did another long piece on the imprisonment of Abdulelah Haider Shaye, whose story Jeremy Scahill first covered here. There are two details worth note. First, just after 15:40, AJE describes the White House’s non-denial denial of their involvement with Shaye’s continued imprisonment.

Well, we got in touch with the White House on this last week, and this is what we were told: “The President’s comments have absolutely nothing to do with Shaye’s reporting or his criticism of Yemen or the United States. A Yemeni court, not a US court, convicted him.”

It’s an odd comment because if, as alleged, Shaye’s imprisonment has something to do with being an AQAP propagandist, then it would have to do with his journalism. Furthermore, given the language the White House itself included in its readout of the February 2, 2011 conversation between President Obama and Ali Abdullah Saleh…

President Obama called President Ali Abdullah Saleh of Yemen on February 2 to welcome the significant reform measures that President Saleh had announced earlier that day, and to stress that President Saleh now needs to follow-up his pledge with concrete actions.  President Obama asked that Yemeni security forces show restraint and refrain from violence against Yemeni demonstrators who are exercising their right to free association, assembly, and speech.  The President also told President Saleh that it is imperative that Yemen take forceful action against Al Qaida in the Arabian Peninsula (AQAP) to protect innocent lives in Yemen as well as abroad.  Finally, President Obama expressed concern over the release of Abd-Ilah al-Shai, who had been sentenced to five years in prison for his association with AQAP.  President Saleh thanked the President for U.S. support and committed to continuing and strengthening relations with the United States. [my emphasis]

… It’s quite clear that regardless of whose courts convicted Shaye, Obama’s comments played a key role in his continued imprisonment.

The irony? In the same conversation Obama pressured Saleh to show restraint with Yemenis exercising their right to speech. So now the White House is issuing non-denial denials about a conversation in which they criticized Saleh for his violent repression by attributing responsibility to Yemen’s legal system?

Nevertheless, I find it significant that, rather than offer some explanation for Obama’s pressure to keep Shaye imprisoned, the White House is now dodging the issue.

Particularly given this detail Scahill reveals just after 20:00.

What I’m going to say right now about it is the extent of what I can say about any specific media organization. My understanding from sources within one of those media organizations [ABC, WaPo, and NYT] that you cited, and a major American media organization, was that they were approached by the US government earlier on, before Shaye was actually locked up and put in prison and sentenced by this court, that a major US media organization that had done work with him was approached and told that they should stop working with him, suggesting that his relationship to Al Qaeda was more than just journalist source relationship and that organization stopped working with Abdulelah Haider. To my knowledge, none of those organizations have take an editorial stance calling for his release or even or even condemning the sham nature of his trial.

That is, presumably around the time ABC and WaPo and NYT were all relying on Shaye to get reporting from Yemen, the government approached at least one of them and told them to stop, which they did.

I find that particularly interesting given some reporting I reviewed yesterday while working on posts assessing whether the new NCTC data-sharing guidelines would have prevented the Nidal Hasan and Undiebomber attacks.

On November 16, 2009, 11 days after Nidal Hasan’s attack and about a week after Pete Hoekstra revealed the email exchanges, the WaPo published a story based on a Shaye interview with Anwar al-Awlaki which provides far more information about the emails Awlaki exchanged with Hasan before the attack.

Shaea allowed a Post reporter to view a video recording of a man who closely resembles pictures of Aulaqi sitting in front of his laptop computer reading the e-mails, and to hear an audiotape in which a man, who like Aulaqi speaks English with an American accent, discusses his e-mail correspondence with Hasan.

The quotes in this article are based on Shaea’s handwritten notes. Shaea said he was allowed to review the e-mails between Hasan and Aulaqi, but they were not provided to The Post.

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Michael Leiter Went Skiing … And All We Got Were Vast Expansions of Data-Sharing and No T-Shirt

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In its short summary of the new NCTC data sharing guidelines, Lawfare said this:

The White House has passed new ”Guidelines for Access, Retention, Use, and Dissemination. . . of Information in Datasets Containing Non-Terrorism Information.” Read the new guidelines here. The Times tells us that the National Counterterrorism Center can now ”retain private information about Americans when there is no suspicion that they are tied to terrorism” for 5 years, instead of the previous 6 months. You can thank Umar Farouk Abdulmutallab for that. The Wall Street Journal and the Post also have the story. [my emphasis]

Actually, no.

I guess you can’t blame Michael Leiter for going skiing right after the UndieBomber attack. But when the report on the 14 failures that led us to miss the attack was released, it was pretty clear the National Counterterrorism Center–Leiter’s unit–deserved most of the blame.

Leiter wasn’t fired. He served over a year longer.

We didn’t do the most basic thing we could have done in response to the UndieBomber attack–hold those who failed accountable.

Instead, we’re now rolling back Americans’ privacy yet again, because those in charge would prefer to trade citizens’ civil liberties for actual accountability for failure.

It’s easy for folks like Lawfare to blame all this on the terrorist and none of it on the people who failed to defend against terrorism. And ultimately, that means the rest of us pay because Michael Leither chose to ski instead of ensuring we found terrorists.

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The “Oversight” over NCTC’s Not-Terrorist-Terrorist Database

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Back when John Negroponte appointed him to be the Director of National Intelligence’s Civil Liberties Protection Officer, Alexander Joel admitted he had no problem with Cheney’s illegal domestic wiretap program.

When the NSA wiretapping program began, Mr. Joel wasn’t working for the intelligence office, but he says he has reviewed it and finds no problems. The classified nature of the agency’s surveillance work makes it difficult to discuss, but he suggests that fears about what the government might be doing are overblown.

“Although you might have concerns about what might potentially be going on, those potentials are not actually being realized and if you could see what was going on, you would be reassured just like everyone else,” he says.

That should trouble you, because he’s the cornerstone of oversight over the National Counterterrorism Center’s expanded ability to obtain and do pattern analysis on US person data.

The Guidelines describe such oversight to include the following:

  • Periodic spot checks overseen by CLPO to make sure database use complies with Terms and Conditions
  • Periodic reviews to determine whether ongoing use of US person data “remains appropriate”
  • Reporting (the Guidelines don’t say by whom) of any “significant failure” to comply with guidelines; such reports go to the Director of NCTC, the ODNI General Counsel, the CLPO, DOJ (it doesn’t say whom at DOJ), and the IC Inspector General; note, the Guidelines don’t require reporting to the Intelligence Oversight Board, which should get notice of significant failures
  • Annual reports from the Director of NCTC on an (admittedly worthwhile) range of metrics on performance to the Guidelines; this report goes to the CLPO, ODNI General Counsel, the IC IG, and–if she requests it–the Assistant Attorney General for National Security

There are a few reasons to be skeptical of this. First, rather than replicate the audits recently mandated under the PATRIOT Act–in which the DOJ Inspector General develops the metrics, these Guidelines have NCTC develop the metrics themselves. And they’re designed to go to the CLPO, who officially reports to the NCTC head, rather than an IG with some independence.

That is, to a large extent, this oversight consists of NCTC reporting to itself.

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Does NCTC Have the Minimal Data Security to Guard Its New Not-Terrorist-Terrorist Database?

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As I noted here and here, yesterday the Director of National Intelligence and DOJ rolled out new Guidelines allowing the National Counterterrrorism Center to acquire non-terrorist datasets from federal agencies–including US person data–so they can do pattern analysis on those datasets and pass off the resulting data to other agencies.

When intelligence officials wanted to explain to Charlie Savage how this would work, they pointed to a State Department dataset–visa applications–as one dataset NCTC might now access directly.

A person from Yemen applies for a visa and lists an American as a point of contact. There is no sign that either person is a terrorist. Two years later, another person from Yemen applies for a visa and lists the same American, and this second person is a suspected terrorist.

Under the existing system, they said, to discover that the first visa applicant now had a known tie to a suspected terrorist, an analyst would have to ask the State Department to check its database to see if the American’s name had come up on anyone else’s visa application — a step that could be overlooked or cause a delay. Under the new rules, a computer could instantly alert analysts of the connection.

The State Department is, of course, still reportedly recovering from the fact that because of DOD’s lax network security, 250,000 diplomatic cables got liberated for the world to see.

Not surprisingly, then, the new Guidelines appear determined to reassure original dataset owners that their data won’t be compromised by sharing it with NCTC (which can then share it with other elements of the Intelligence Community and even foreign allies). You can tell they’re serious about this, because it’s one of the places they occasionally use “shall” (in other sensitive areas, they use the squishier “will”).

For access to or acquisition of specific datasets, the DNI, or the DNI’s designee, shall collaborate with the data provider to identify any legal constraints, operational considerations, privacy or civil rights or civil liberties concerns and protections, or other issues, and to develop appropriate Terms and Conditions that will govern NCTC’s access to or acquisition of datasets under these guidelines.

[snip]

In addition to the [general requirements laid out for sharing this data], at the time when NCTC acquires a new dataset or a new portion of a dataset, the Director of NCTC shall determine, in writing, whether enhanced safeguards, procedures, and oversight mechanisms are needed.

Though this bold approach almost immediately breaks down, as the Guidelines not only revert to “will,” but–worse–dig out the passive voice when describing the data transfer.

Measures will be put into place to ensure that the dataset is received and stored in a manner to prevent unauthorized access and use prior to the completion of replication.

And when the Guidelines get into specifics, they use that passive “will” again.

Access to these datasets will be monitored, recorded, and audited. This includes tracking of logons and logoffs, file and object manipulation, and changes, and queries executed, in according with audit and monitoring standards applicable to the Intelligence Community.

Who will (“shall”) implement these data security measures? What if he or she fails to do so adequately?

It’s a really, really important question because–as this year’s intelligence authorizations make clear, the Intelligence Community does not yet have insider threat detection–the kind of security that would permit these audits–and they’re not going to get it until 18 months from now. Hell, they’re not even going to start getting it until 6 months from now!

(a) Initial Operating Capability.–Not later than October 1, 2012, the Director of National Intelligence shall establish an initial operating capability for an effective automated insider threat detection program for the information resources in each element of the intelligence community in order to detect unauthorized access to, or use or transmission of, classified intelligence.

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Whitewater Rafting? New Orleans Film Festivals? What Boondoggles Will NYPD’s Cops Go on Next?

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Remember that NYPD officer who scammed a whitewater rafting trip by claiming he needed to count how many times a day some college students prayed while on vacation? He wasn’t the only one scamming such vacations. As the AP reports in its latest installment on the CIA-on-the-Hudson, in precisely the same period, another NYPD officer was scamming a trip to New Orleans to document the collaboration of anti-globalization, racial profiling, labor, and immigration activists.

If possible, the tie between the NOLA meeting and NYC was even more remote than that between whitewater rafting Muslim students and the city. The mentions of NYC in the report include the addresses of local chapters of groups represented at the meeting. And it uses a game of connections–ultimately tied to demonstrations against the Sean Bell killing by NYPD cops or to May Day celebrations (both, of course, completely protected speech)–to tie those groups back to NYC.

Activists from the Jena Coalition and Critical Resistance were in attendance and presented several documentaries based on the alleged racial profiling and the alleged injustices that people of color faced across the country by their respective police departments. The New York Chapter of the Critical Resistance is located at 976 Longwood Ave Bronx, NY.

Critical Resistance was formerly located on Atlantic Ave near Clinton Ave (confines of the 77 Pct) and at the time was being lead by Ashanti Alston (former Black Panther and Animal Rights Activist). The group hosted events prior to the 2004 Republican National Convention and was raided by the NYPD for selling alcohol to minors.

Members from the Malcolm X Grassroots Movement NYC Chapter along with Critical Resistance and members of the Sean Bell family will attend the outcome
of the Sean Bell case as well as a demonstration scheduled for Friday April 25, 2008. The demonstration will be held at the Queens DA’s office located at 125-01 Queens Boulevard to await the judge’s verdict.

And, as it turns out, the cop reporting his boondoggle trip to NOLA actually misrepresented what he was spying on.

In April 2008, an undercover NYPD officer traveled to New Orleans to attend the People’s Summit, a gathering of liberal groups organized around their shared opposition to U.S. economic policy and the effect of trade agreements between the U.S., Canada and Mexico.

When the undercover effort was summarized for supervisors, it identified groups opposed to U.S. immigration policy, labor laws and racial profiling. Two activists – Jordan Flaherty, a journalist, and Marisa Franco, a labor organizer for housekeepers and nannies – were mentioned by name in one of the police intelligence reports obtained by the AP.

[snip]

[Flaherty] said the event described by police actually was a film festival in New Orleans that same week, suggesting that the undercover officer’s duties were more widespread than described in the report.

Flaherty said he recalls introducing a film about Palestinians but spoke only briefly and does not understand why that landed him a reference in police files.

And that’s it. That’s all it took the NYPD to be conned into paying a cop’s trip to NOLA for a film festival attended by a bunch of people supporting perfectly legal political issues.

After paying for whitewater rafting and film festival trips, I wonder what kind of swank vacations the NYPD has paid for since?

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The National Counterterrorism Center Just Declared All of Us Domestic Terrorists

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I’m going to have a series of posts on the new National Counterterrorism Center data sharing guidelines. As a reminder, the whole point of these guidelines is to allow the NCTC to obtain information on US persons, dump it into their datamining, and then ultimately pass it on. In this, I’ll show how, by magic of cynical bureaucracy, the government is about to turn non-terrorist data into terrorist data.

Here’s how that trick is accomplished rhetorically. In the Background section (and in one or two other places), the document includes this language to legally justify throwing US person data into big databases to be data mined. It starts by laying out NCTC’s data mandate:

[NCTC] shall “serve as the primary organization in the United States for analyzing and integrating all intelligence possessed or acquired by the United States Government pertaining to terrorism and counterterrorism, excepting intelligence pertaining exclusively to domestic terrorists and domestic counterterrorism.

It blathers on about how NCTC also has the responsibility to request information and pass it on. This is the legal language they’re going to translate to mean the opposite of what it says.

Jumping ahead a bit, the guidelines acknowledges that NCTC is only supposed to have access, if needed, to domestic terrorism information.

In the National Security Act of 1947, as amended, Congress recognized that NCTC must have access to a broader range of information than it has primary authority to analyze and integrate if it is to achieve its missions. The Act thus provides that NCTC “may, … receive intelligence pertaining exclusively to domestic terrorism from any Federal, State, or local government or other source necessary to fulfill its responsibility and retain and disseminate intelligence.” [my emphasis]

See that? It can have all the foreign terrorism information, and then if it needs to, it can have the domestic terrorism information.

Now, going back a few lines, it takes this authority–“pertaining exclusively to domestic terrorism”–and uses it to get … everything.

NCTC’s analytic and integration efforts … at times require it to access and review datasets that are identified as including non-terrorism information in order to identify and obtain “terrorism information,” as defined in section 1016 of the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004, as amended. “Non-terrorism information” for purposes of these Guidelines includes information pertaining exclusively to domestic terrorism, as well as information maintained by other executive departments and agencies that has not been identified as “terrorism information” as defined by IRTPA. [my emphasis]

Note that bolded section is not a citation from existing law. It is, instead, NCTC turning NCTC’s authority to sometimes get domestic terrorism information into authority to get any dataset maintained by any executive agency that NCTC believes might include some information that might be terrorism information.

Those of us in the US Government’s tax, social security, HHS, immigration, military, and other federal databases? We’ve all, by bureaucratic magic, been turned into domestic terrorists.

Now, NCTC seems to understand what a grasp this is, so it deploys one more rhetorical effort, this time noting that the Director of National Intelligence–to whom NCTC reports–also gets access to all national security intelligence.

[The National Security Act] provides that “[u]nless otherwise directed by the President, the Director of National Intelligence shall have access to all national intelligence and intelligence related to hte national security which is collected by any federal department, agency, or other entity…”

So in addition to all of us in government databases–that is, all of us–being deemed domestic terrorists, the data the government keeps to track our travel, our taxes, our benefits, our identity? It just got transformed from bureaucratic data into national security intelligence.

We are all, now, first and foremost potential terrorists now. Only after NCTC destroys our data in five years (if they don’t find some excuse to keep it before then) will we become citizens again.

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Start a 8 Year Regional War and Set Iran’s Nukes Back 3 Years

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The headline and lead of the story everyone’s buzzing about reads,

Pentagon Finds Perils for U.S. if Israel Were to Strike Iran

A classified war simulation exercise held this month to assess the American military’s capabilities to respond to an Israeli attack on Iran forecast that the strike would lead to a wider regional war, which could draw in the United States and leave hundreds of Americans dead, according to American officials.

That claim that just “hundreds” of Americans would die in a war started next door to where we’ve got 90,000 Americans deployed makes me want to see the full results and the resumés of those who did the war game.

But the headline misses one critical result of the war game.

The initial Israeli attack was assessed to have set back the Iranian nuclear program by roughly a year, and the subsequent American strikes did not slow the Iranian nuclear program by more than an additional two years. However, other Pentagon planners have said that America’s arsenal of long-range bombers, refueling aircraft and precision missiles could do far more damage to the Iranian nuclear program — if President Obama were to decide on a full-scale retaliation.

This regional war Israel might start? A war, presumably, akin to the Iraq war, which started 9 years ago today and only “ended” in December?

All it would do is set Iran’s nuclear program back 3 years.

No word on what this 8 year war to set Iran back 3 years would cost. But don’t worry. I’m sure it’d be as great a value as the war itself.

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