Meet 3 PATRIOT Act False Positives Investigated for Buying Beauty Supplies

Both Mike Rogers and Ron Wyden made claims about the efficacy of the surveillance scoops of the last few days, especially the use of Section 215 to collect the phone data — and other tangible stuff, including credit card records — of every American.

The assessment of efficacy ought to consider a number of factors: Whether this surveillance has prevented any attacks (Rogers says it has, but mentions only one in the entire 7 year span of the program). Why it didn’t prevent an attack like the Boston Marathon bombing, which was carried out by two guys whose lives and extremist interests were splashed all over social media, and one of whom was discussed in international texts  that would have been fair game for collection under PRISM.

But an efficacy assessment also needs to find a way to quantify the costs such surveillance has on false positives.

So let’s consider what may have happened to three probable false positives who had their lives thoroughly investigated in 2009 after being — wrongly, apparently — tied to Najibullah Zazi’s plot to bomb the NYC subway.

We first learned of these three people when they appeared in the detention motion the FBI used to keep him in custody in Brooklyn. As part of the proof offered that Zazi was a real threat, FBI described 3 people in Aurora, CO, who bought large amounts of beauty supplies.

Evidence that “individuals associated with Zazi purchased unusual quantities of hydrogen and acetone products in July, August, and September 2009 from three different beauty supply stores in and around Aurora;” these purchases include:

  • Person one: a one-gallon container of a product containing 20% hydrogen peroxide and an 8-oz bottle of acetone
  • Person two: an acetone product
  • Person three: 32-oz bottles of Ion Sensitive Scalp Developer three different times

Unlike just about everything else cited in the detention motion, there was no obvious means by which these individuals were identified.

During the debate on PATRIOT Act reauthorization later that fall, Dianne Feinstein used the Zazi investigation to insist that Section 215 retain its broad “relevant to” standard. Given her insistence Section 215 had been important to the investigation, and given that the identification of these beauty supply buying subjects appeared to work backwards from their purchase of beauty supplies, I guessed at the time that the FBI used Section 215 to cross reference all the people who had bought these beauty supplies in Aurora, CO — which are precursors for the TATP explosive Zazi made — with possible associations with Zazi.

Just days later, as part of the debate, Ben Cardin discussed using National Security Letters to track people who buy “cleaning products that could be used to make explosive device.” And John Kyl discussed wanting to “know about Joe Blow buying hydogen peroxide.” Acetone and hydrogen peroxide, the same precursors used to implicate these three people.

In February 2011, Robert Mueller confirmed explicitly that Section 215 had been used to collect “records relating to the purchase of hydrogen peroxide.”

That seems to suggest that the government used Section 215 or NSLs to search on all the people who bought acetone and hydrogen peroxide in Aurora (by all public reporting, Zazi kept to himself the entire time he lived in CO).

But here’s the thing: these three people never appeared again in the legal case against Zazi and his co-conspirators. The only one from CO ever implicated in the plot was Zazi’s father, who had lied to protect his son.


They were three known associates buying dangerous explosives precursors one day, and apparently became either cleared innocents or recruited confidential informants the next day.

In other words, they appear to be false positives identified by the Section 215 dragnet celebrated by Obama and DiFi and everyone else implicated in it now as a great way to prevent terrorism (Zazi, remember, was discovered through legal FISA intercepts obtained after we got a tip from Pakistan).

Now, no one, as far as I know, has ever found these three probable false positives to ask them what they went through during the period when they were suspected of being co-conspirators in the biggest terrorist attack since 9/11. But given the likelihood that the association with Zazi went through his mosque (the other likely possibility is another driver from the airport), I imagine that their neighbors and employers got awfully suspicious when the FBI showed up and started asking questions. How badly does being actively — and, apparently, falsely — investigated for being a terrorist ruin your life if you’re an American Muslim? Do you lose job security? Do other kids’ parents refuse to let their kids play with yours? Does your homeowners association try to cause you trouble?

That’s what this debate about efficacy needs to quantify. Data mining is never completely accurate, and given the small number of terrorists and therefore the high degree of guessworks that goes into what counts as an association, you’re going to have false positives, as appears to have happened here.

Lots of apologists are saying they never do anything wrong, and therefore they don’t have to worry. But it appears that doing something as innocent as buying hair bleach can get you sucked into this dragnet.

Confirmed: Our Government Has Criminalized Beauty Products

A year and a half ago, I warned that if you bought certain beauty supplies–hydrogen peroxide and acetone–you might be a terrorism suspect.

I’m going to make a wildarsed guess and suggest that the Federal Government is doing a nationwide search to find out everyone who is buying large amounts of certain kinds of beauty products. And those people are likely now under investigation as potential terrorism suspects.

Shortly thereafter, John Kyl basically confirmed that the government had been tracking certain people buying hydrogen peroxide.

Yesterday, FBI Director Robert Mueller did so in even more explicit terms.

Federal Bureau of Investigation Director Robert Mueller appeared to indicate for the first time Wednesday that his agency uses a provision of the PATRIOT Act to obtain information about purchases of hydrogren peroxide–a common household chemical hair bleach and antiseptic that can also be turned into an explosive.

The comment in passing by Mueller during a Senate Intelligence Committee hearing was noteworthy because critics have suggested that the FBI is using a provision in the PATRIOT Act to conduct broad surveillance of sales of lawful products such as hydrogen peroxide and acetone.

“It’s been used over 380 times since 2001,” Mueller said of the so-called business records provision, also known as Section 215. “It provides us the ability to get records other than telephone toll records, which we can get through another provision of the statutes. It allows us to get records such as Fedex or UPS records….or records relating to the purchase of hydrogen peroxide, or license records—records that we would get automatically with a grand jury subpoena on the criminal side, the [Section] 215 process allows us to get on the national security side.” (Emphasis original)

Emptywheel: where you read today about the civil liberties infringements your government will confirm years from now.

What Mueller didn’t confirm, but what we can pretty much conclude at this point, is that they’ve used the 215 provision to investigate as terrorists perfectly innocent (and possibly Muslim) purchasers of beauty supplies.

Recall how I first figured out the government was using Section 215 to track beauty supplies. After DiFi blabbed that they had used Section 215 in the Najibullah Zazi case, I examined the detention motion on Zazi to see what kind of evidence they used to justify refusing him bail. It included this:

Evidence that “individuals associated with Zazi purchased unusual quantities of hydrogen and acetone products in July, August, and September 2009 from three different beauty supply stores in and around Aurora;” these purchases include:

  • Person one: a one-gallon container of a product containing 20% hydrogen peroxide and an 8-oz bottle of acetone
  • Person two: an acetone product
  • Person three: 32-oz bottles of Ion Sensitive Scalp Developer three different times

The federal government argued, in part, that Zazi had to be denied bail because three people “associated with him” bought beauty supplies “in and around Aurora.”

Last February, Zazi accepted a plea agreement and has been cooperating with investigators; the government has twice delayed his sentencing, suggesting he’s still fully cooperating. Since that time, the only people arrested for participating in the actual plot–as opposed to obstructing justice by trying to hide the evidence of Zazi’s bomb-making, with which both Zazi’s father and uncle were charged–are in NY or Pakistan.

That is, it appears that Zazi had no accomplices “in and around Aurora.”

That’s particularly interesting given that Zazi is reported to have had few close ties in the Denver area. He only moved there in January 2009, 8 months before his arrest. And both his employer and the other worshipers at his mosque describe him as keeping to himself.

Unlike most drivers at ABC, who drove eight- or nine-hour shifts, Zazi routinely worked 16-to-18-hour days, often putting in as many as 80 hours a week ferrying passengers to and from DIA. “He was a regular kind of guy, but he worked hard and he wanted money,” says Hicham Semmaml, a Moroccan-born ABC driver. “I would have never suspected any of this.”


“He kept to himself pretty much, and he never gave any outward signs of being connected with anybody,” Gross said.


Zazi would turn up for afternoon prayers each Friday — Islam’s holy day — parking the ABC van in the parking lot outside the sprawling brick complex with its black dome and narrow minaret. Other regular worshippers agreed that he never spoke to anyone and usually rushed off immediately once the service ended.

All the currently available evidence suggests that these three Zazi “associates” buying beauty supplies turned out to be completely innocent. That would mean that one of the reasons the government said Zazi should be held without bail (there were plenty of others) basically amounts to innocent people with some attenuated tie to Zazi buying beauty supplies.

But consider what their beauty supply purchase has exposed them to–particularly if the association involved amounts to membership in the same mosque as him. Their purchase of beauty supplies undoubtedly made them a target for further investigation, presumably FBI agents asking questions of their neighbors and employers, probably the use of other PATRIOT provisions to track their calls and emails, and possibly even a wiretap.

So these three people, because they worshiped at the same mosque as Zazi or drove an airport van but presumably in the absence of any evidence of actual friendship with him had their lives unpacked by our government because they bought a couple bottles of beauty supplies.

Another Administration withholding OLC Memos

I’m going to have a few posts on answers Eric Holder gave to the Senate Judiciary Committee’s Questions for the Record submitted after his last appearance in November 2009.

Two of the questions (one from John Kyl and the other from Tom Coburn) asked whether Gitmo detainees brought to the United States for civilian trial would get additional constitutional rights. Both Senators asked Holder for details on OLC opinions on whether this would happen.

Though Holder did point to a public document (it’s the last several pages of his response packet) laying out the risks that courts would require even military commissions to grant such constitutional rights, he refused to let Congress see the OLC memos in question. Here’s Kyl’s question and response.

Prosecution of Khalid Sheikh Mohammed and Other 9/11 Conspirators in Federal Court :

68. Now that the Administration has made a final decision to bring Khalid Sheikh Mohammed and other 9/11 conspirators to the United States for prosecution, please provide this Committee with any memoranda written by the Office of Legal Counsel articulating what additional constitutional and statutory rights detainees may receive by virtue of their presence in the United States that are not currently available to them at Guantanamo.

Response: Please find attached a memorandum concerning the application of the Due Process Clause of the Fifth Amendment to military commission proceedings in the United States and at the Guantanamo Bay Naval Base, which the Department of Justice previously provided in response to a congressional inquiry (Attachment 3). The Department would have substantial confidentiality interests in any other memorandum that OLC or other components might have prepared on this topic.

As I said, Coburn asked a similar question and got an identical response.

Now, I get a weird spidey-sense every time DOJ refuses to show members of Congress who have an oversight role the OLC memos that DOJ has written. Even if these memos say Khalid Sheikh Mohammed would have the right to free health care and a shiny new pony the moment he was taken off a plane in the continental US, I still think Committee Members with a proper oversight interest ought to be able to see these memos.

But I gotta say, I also suspect there’s a reason they’re so insistent on not only the existence of memos, but also their right to see them. Is it possible that Bradbury or Yoo or someone wrote up a KSM’s shiny pony memo before they left DOJ as one more justification for keeping Gitmo open indefinitely? Are they hoping to flush out another of the hack memos written under the Bush Administration?

Whose Non-Disclosure Was Worse: Bybee’s or Holder’s?

John Kyl has officially announced he intends to waste an oversight hearing on March 23 beating up Eric Holder because he did not disclose an amicus brief opposing unlimited Presidential power.

Kyl told members of the committee that panel Republicans will question the Attorney General about his 2004 amicus brief that recommended the Supreme Court stop the Bush administration’s efforts to try Jose Padilla as an enemy combatant.


Kyl called the non-disclosure of the brief “rather distressing.”

“Are we expected to believe that then-nominee Holder…forgot about his role in one of this country’s most politicized terrorism cases?” Kyl asked.

And the other Republicans on the Senate Judiciary Committee are practicing their pout-rage, as well.

Senator Jeff Sessions of Alabama, the ranking Republican on the committee, said he was “deeply concerned” by Mr. Holder’s failure to disclose the brief during his confirmation.

“Not only was the Attorney General required to provide the brief as part of his confirmation, but the opinions expressed in it go to the heart of his responsibilities in matters of national security,” Mr. Sessions said in a statement. “This is an extremely serious matter and the Attorney general will have to address it.”

Now, as I said earlier, Holder clearly should have disclosed this brief–though his views were already well known.

But he’s not the first nominee to go before SJC who failed to disclose key legal writings. After all, Jay Bybee secured a lifetime appointment as an Appeals Court Judge without disclosing the fact that he rubber stamped legal sanction for torture. And unlike Holder, Bybee’s actions were totally unknown at the time. At the time, just one Democrat, Jane Harman, had even been briefed that CIA was doing the torture (though Pelosi had been briefed that they were considering torture), the memos specifically had not even been revealed to her, and even if she knew about it, she would not have been permitted to share it with SJC.

And yet, barring Bybee’s resignation or prosecution in some international court, Bybee will be serving on the 9th Circuit long after Holder has moved on as Attorney General.

So whose non-disclosure is more of a problem? Jay Bybee, who failed to hint that he had authorized torture? Or Eric Holder, whose views were well-known and tested during his confirmation hearing?

DiFi and Pat Leahy, Silencing the Librarians

librarian-shh.thumbnail.jpgThere’s a cynical passage in the new PATRIOT language that DiFi put forward the other night. It basically creates an exception in the worsened Section 215 language just for libraries.

‘‘(B) if the records sought pertain to libraries (as defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)), including library records or patron lists, a statement of facts showing that there are reasonable grounds to believe that the records sought—‘‘(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against inter-national terrorism or clandestine intelligence activities; and ‘‘(ii)(I) pertain to a foreign power or an agent of a foreign power; ‘‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ‘‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power;

This language requires that before investigators demand libraries turn over records, they must first prove that the person to whom the records pertain is either an intelligence investigation suspect, or is in contact with one. So for library records, and library records only, the new language requires some showing of reasonable cause first before the investigators can request the information.

During the hearing, Ben Cardin asked why there was a special standard for libraries (at about 108:30 in the hearing). Kyl offered this explanation for the exception (one he disagrees with):

Kyl: There was such a–I would say–unwarranted and irrational, and I certainly don’t apply that word to anyone here but from some folks out in the country–concern about library records as the result of blogs and so on, it was simply easier to say, okay, cut it loose, it’s important but not that important to hold up the rest of the legislation.


In order to get rid of the political argument that was, essentially, irrelevant in almost all investigations, it was simply easier to cut that lose and have a different standard for it.

Durbin then calls Leahy and Kyl on their cynicism, arguing that the exception just for libraries proves that the underlying principle of Section 215, as written, is unsound.

Durbin: Senator Kyl raised an interesting question. Why aren’t more people complaining about this if it is such a problem? Read more

Republican Bad Faith Negotiation, Again

If you need any more proof that the Republican attempt to break the UAW a week ago Thursday was really just a political stunt, read this article. In it, Republican after Republican attacks Bush for providing relief to the auto industry. That includes four of the Republican Senators who–Bob Corker has assured us–would have supported his "compromise" deal from last Thursday:

John McCain:

John McCain is leading the way, saying it is “unacceptable that we would leave the American taxpayer with a tab of tens of billions of dollars while failing to receive any serious concessions from the industry.” 

John Kyl:

“I’m very disappointed,” said Sen. Jon Kyl (R-Ariz.). “The president justified his action with a false choice: it’s either this plan or abrupt liquidation of the companies. The White House seems to think that the industry didn’t have time to deal with the problem or prepare for an orderly bankruptcy, which is false.”

Judd Gregg:

“These funds were not authorized by Congress for non-financial companies in distress,” Gregg said, “but were to be used to restore liquidity and stability in the overall financial system of the country and to help prevent fundamental systemic risks in the global marketplace.”

Mitch McConnell:

“I have strong objections to the use of Troubled Assets Relief Program (TARP) funds for industry specific bailouts. And I do not support this action,” McConnell said. “But since the administration has chosen to use these funds to aid the automakers, it is important that the date-specific requirements on all the stakeholders be enforced.” 

Yet this is virtually the same bill, with one caveat: that the manufacturers, "can deviate from the quantitative targets above, providing that the firm reports the reasons for these deviations and makes the business case to achieve long-term viability in spite of the deviations."

In other words, the Republicans are pissed because the President’s plan allows the auto manufacturers to "deviate" from Bob Corker’s demand that the UAW lower wages below that of Japanese manufacturers’ workers by the end of the year if the manufacturers can make a business case to do so.  

These Republicans are pissed that GM and Chrysler don’t have to cut costs even if there’s a good business reason not to do so!!!

Not surprisingly, these Republicans are not alone in disavowing Bob Corker’s plan. Read more

Uncle Toobz? Are You Obstructing Oversight of TARP?

POGO notes something I hadn’t seen reported elsewhere–the last paragraph of a Chris Dodd statement regarding the selection of Neil Barofsky as Inspector General for the TARP bailout funds.

Unfortunately, the confirmation has been delayed by at least one Senator. That delay is regrettable and not in the best interest of American taxpayers.  It is my sincere hope that those who are blocking this nomination will reconsider their actions and confirm Mr. Barofsky at the earliest opportunity.

I posit Ted Stevens as one potential source of the hold only because he has been known to put holds on finance oversight in the past. Plus, he’s probably been in an ornery mood of late.

But there are plenty of other Republicans who like to obstruct good legislation. There’s John Kyl’s hold on FOIA reforms.  John Ensign’s hold on electronic filing of Senate disclosure forms. And there’s Tom Coburn’s hold on just about everything–though to be fair to Coburn, his MO is usually to obstruct things he finds culturally offensive, not matters pertaining to oversight.

Still, someone’s out there making sure that no one is watching over our $700 billion dollars. 

Now why would some corporate shill want to do that?

Powerline Blog Leads SJC’s Republicans Trolling through Parks, Public-Assistance Agencies, and Liquor Stores


William Ockham points to a new report on Rove and Bolten’s refusal to appear before the Senate Judiciary Committee to testify about the firing of nine US Attorneys. The report itself mostly repeats old arguments, integrated with the results of the DOJ Inspector General’s report on the firing.

Which means that the purpose of the report is more interesting–to me at least–than the content. The report basically advances the Senate case against Bolten and Rove, after the House’s attempts to get Bolten and Miers and, arguably, Rove to testify were thwarted by the Appeals Court’s stay on the House lawsuit. Since the House expires at the end of their term, their suit against the White House also expires. But the Senate doesn’t. In other words, I believe this report  lays the ground work for continuing the battle in January. Rove may not be out of the woods yet, for having to testify about his wrong-doing on the US Attorney purge.

That said, I’m just as interested in the Republican response to Leahy’s move, though.

Senators Arlen "Scottish Haggis" Specter and Chuck Grassley have decided that–though they originally voted to hold Bolten and Rove in contempt–they don’t want to be a part of this report moving forward.

Although we supported the Committee’s efforts in the U.S. Attorney removal investigation, including the contempt resolutions voted upon last year, we cannot join the Majority in this Report. We both voted in favor of the contempt resolutions regarding Messrs. Bolten and Rove after staff and Member consultation produced resolution text that: (1) had bipartisan support; (2) identified every fact and element necessary to charge contempt of Congress under 2 U.S.C. § 194; (3) was consistent with Committee precedent; (4) contained no surplussage that could arguably jeopardize or undermine the enforceability of the Committee’s action; and (5) was fair to the due process rights of the prospective contempt defendants. However, so much time has passed that the matter is now somewhere between moot and meaningless. Had there been any intention to pursue Senate action, these procedural steps would have been taken soon after the resolutions of contempt were approved. The filing of this report—fourteen months after Attorney General Gonzales resigned, eleven months after the contempt resolutions were approved and a mere two months before a new administration takes office—will likely prove superfluous.

Did they see enough in the DOJ Inspector General’s report to get worried about where this is leading? Read more

Will McCain Turn Over Requested Documents to the Renzi Prosecutors?

As the Hill reported this morning, John McCain’s (and John Kyl’s) staffers were interviewed in the Renzi investigation.

Federal agents interviewed staffers for likely Republican presidential nominee Sen. John McCain (Ariz.) as part of their corruption case against Rep. Rick Renzi (R-Ariz.).

U.S. Attorney for the District of Arizona Diane J. Humetewa and fellow prosecutors disclosed the interviews with aides for McCain and fellow Arizona Republican Sen. Jon Kyl in a written response to Renzi’s attorneys, who asked for the contents of the interview to help prepare for Renzi’s upcoming trial, which is scheduled for October.

But as the letter from the prosecution team to Renzi’s lawyers (and the Hill article) makes clear, the prosecution requested–but had thus far not received–more than that.

12. You have requested documents obtained from the offices of any U.S. Senator with respect to land exchanges. You will be provided with FD-302s of interviews of staffers of Senators McCain and Kyl. We have also requested documents from the offices of Senators McCain and Kyl, and if we receive documents we will make those available to you consistent with the rules and practices of the U.S. Senate.

13. You have requested documents reflecting communications between Resolution Copper or Petrified Forest and U.S. Senators. We will provide you with the opportunity to inspect and copy anything that we have received during the investigation on this topic. [my emphasis]

The prosecution team requested documents from the two Arizona Senators, documents that as of April 14, they had not yet received.

Now, to be totally fair to John McCain, these documents might show McCain in a good light. They might reveal that, after Rick Renzi allegedly tried to solicit a bribe from Resolution Copper and Petrified Forest, those companies appealed to the state’s Senators for help.

But John McCain has a history of sponsoring land swaps favored by his backers.

Sen. John McCain championed legislation that will let an Arizona rancher trade remote grassland and ponderosa pine forest here for acres of valuable federally owned property that is ready for development, a land swap that now stands to directly benefit one of his top presidential campaign fundraisers].

Read more

Kyl Agrees to IG Reform–but Sustains DOJ Lawyer’s Protection

POGO has a review of the Senate bill passed Wednesday that will strengthen the independence of the nation’s Inspectors Generals. As it describes, John Kyl was able to water down some of the key provisions of the bill, but it does make some improvements. As someone who has struggled to find IG reports buried in DHS’ and DOD’s websites, for example, I’m particularly fond of this one:

All IG websites must be clearly and directly accessible from their agencies’ home pages, and IG reports must be posted within 3 working days of release.

No longer can agencies hide bad news by making the IG reports inaccessible.

I’m particularly intrigued, however, by one of the provisions that Kyl struck from the bill–a move to give DOJ’s IG authority to investigate the lawyers at DOJ.

Finally, Kyl’s amendment did away with Justice Department Inspector General Glenn Fine’s most cherished desire: that he be granted authority to investigate Justice lawyers accused of engaging in professional misconduct. Such allegations–as distinct from questions of fraud or abuse–are currently handled by the DOJ Office of Professional Responsibility (OPR), and Kyl, in a masterpiece of faint praise, announced that "there is no evidence that this Office’s reviews are anything less than adequate."

I’ve done posts on this here and here. The issue is important because, when Alberto Gonzales was attempting to spike any real investigation into the OLC authorization of the warrantless wiretap program and of the USA purge, he attempted to give OPR–and not OIG–the exclusive investigative authority. Recently, too, OIG had to refuse to investigate Yoo’s torture memos because it doesn’t have the mandate to conduct such investigations. As Glenn Fine explained the problem in testimony before the Senate:

Unlike all other OIGs throughout the federal government who can investigate misconduct within their entire agencies, the DOJ OIG does not have complete jurisdiction throughout the DOJ. Rather, the DOJ OIG can investigate misconduct throughout DOJ with one notable exception: the OIG does not have the authority to investigate allegations against DOJ attorneys acting in their capacity as lawyers – litigating, investigating, and providing legal advice – including such allegations against the Attorney General, Deputy Attorney General, and other senior Department lawyers. Instead, the DOJ Office of Professional Responsibility (OPR) has been assigned jurisdiction to investigate such allegations.

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