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FBI’s Open NSL Requests

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DOJ’s Inspector General just released a report of all the recommendations it made prior to September 15, 2015 that are not yet closed. As it explained in the release, the IG compiled the report in response to a congressional request, but they’ve posted (and will continue to post, every 6 months) the report for our benefit as well.

Specifically, we have posted a report listing all recommendations from OIG audits, evaluations, and reviews that we had not closed as of September 30, 2015.  As you will see, most of the recommendations show a status of “resolved,” which indicates that the Department of Justice has agreed with our recommendation, but we have not yet concluded that they have fully implemented it.

As that release made clear, most of the recommendations that have not yet been closed are not open, but resolved, which means DOJ has agreed with the IG’s recommendation but has not fully implemented a fix for that recommendation.

Which leaves the “open” recommendations, which might include recommendations DOJ hasn’t agreed to address or hasn’t told the IG how they’ll address. There are 20 open recommendations in the report, most of which date to 2014. That’s largely because every single one of the 10 recommendations made in the 2014 report on National Security Letters remains open. Here are some of my posts on that report (one, two, three, four, five), but the recommendations pertain to not ingesting out-of-scope information, counting the NSL’s accurately, and maintaining paperwork so as to be able to track NSLs. [Update: as the update below notes, the FBI response to the released report claimed it was responding, in whole or in part, to all 10 recommendations, which means the “open” category here means that FBI has not had time to go back and certify that FBI has done what it said.]

Three of the other still-open recommendations pertain to hiring; they pertain to nepotism, applicants for the civil rights division wanting to enforce civil rights laws (!), and the use of political tests for positions hiring career attorneys (this was the Monica Goodling report). Another still open recommendation suggests DOJ should document why US Attorneys book hotels that are outside cost limits (this pertains, ironically, to Chris Christie’s travel while US Attorney).

The remaining 2 recommendations, both of which date to 2010, are of particular interest.

1/19/2010: A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records

The OIG recommends that the FBI should issue guidance specifically directing FBI personnel that they may not use the practices known as hot number [classified and redacted] to obtain calling activity information from electronic communications service providers.

The first pertains to the IG Report on exigent letters. The report described (starting on PDF 94) how FBI contracted with two providers for “hot number” services that would let them alert the FBI when certain numbers were being used. FBI first contracted for the service with MCI or Verizon, not AT&T (as happened with most tech novelties in this program). The newly released version of the report make it clear that redactions are redacted for b1 (classification), b4 (trade secrets), b7A (enforcement proceedings), and b7E (law enforcement technique). At one point, then General Counsel now lifetime appointed judge Valerie Caproni said the practice did not require Pen Registers.

I find this practice — and FBI’s longstanding unwillingness to forswear it — interesting for two reasons. First, most references to the practice follow “hot number” by a short redaction.

Screen Shot 2016-01-21 at 2.02.30 PM

That suggests “hot number” may just be a partial name. Given that this section makes it clear this was often used with fugitives — just as Stingrays are often most often used — I wonder whether this involved “number” and “site.” That’s especially true since Company C (again, MCI or Verizon) also tracked whether calls were being made from a particular area code or [redacted], suggesting some location tracking function.

I’m also interested in this because “hot numbers” tracks the unauthorized “alert” function the NSA was using with the phone dragnet up until 2009. As you recall, NSA analysts would get an alert if any of thousands of phone numbers got used in a given day, none of which it counted as a contact-chaining session.

In other words, this practice might be related to one or both of these things. And 6 years later, the FBI doesn’t want to forswear the practice.

9/20/2010, A Review of the FBI’s Investigations of Certain Domestic Advocacy Groups

The OIG recommends that the FBI seek to ensure that it is able to identify and document the source of facts provided to Congress through testimony and correspondence, and to the public.

This report (see one of my posts on it) reviewed why the FBI had investigated a bunch of peace and other advocacy groups as international terrorist groups dating back to 2004. ACLU had FOIAed some documents on investigations into Pittsburgh’s peace community. In response, Patrick Leahy started asking for answers, which led to obvious obfuscation from the FBI. And as I noted, even the normally respectable Glenn Fine produced a report that was obviously scoped not to find what it was looking for.

Nevertheless, a key part of the report pertained to FBI’s inability (or unwillingess) to respond to Leahy’s inquiries about what had started this investigation or to explain where the sources of information for their responses came from. (See PDF 56) The FBI, to this day, has apparently refused to agree to commit to be able to document where the information it responds to Congress comes from.

I will have more to say on this now, but I believe this is tantamount to retaining the ability to parallel construct answers for Congress. I’m quite confident that’s what happened here, and it seems that FBI has spent 6 years refusing to give up the ability to do that.

Update:

I didn’t read it when I originally reported in the NSL IG report, but it, like most IG reports, has a response from FBI, which in this case is quite detailed. The FBI claims that it had fulfilled most recommendations well before the report was released.

The response to the open exigent letter recommendation is at PDF 224. It’s not very compelling; it only promised to consider issuing a statement to say “hot number [redacted]” was prohibited.

The response to the 2014 report recommendations start on PDF 226. Of those, the FBI didn’t say they agreed with one part of one recommendations:

  • That the NSL subsystem generate reminders if an agent hasn’t verified return data for manual NSLs (which are sensitive)

In addition, with respect to the data requested with NSLs, FBI has taken out expansive language from manual models for NSLs (this includes an attachment the other discussion of which is redacted), but had not yet from the automated system.

FBI’s Lies about Anti-War Surveillance Also Protected CIFA

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Let me spoil the ending of this series on the IG Report on FBI Investigations of First Amendment Activity. I suspect there are ties between the FBI’s investigations of anti-war activists and CIFA, the DOD program that collected information on anti-war activists in the Talon database. I’ll say more about this in a later post or three. But for now, I just wanted to point out the close tie between the FBI reporting on the Pittsburgh anti-war group Pittsburgh Organizing Group (POG) and an entry in a leaked fragment of the CIFA database.

The following are the anti-war POG activities known to be recorded by the government (note, the names of the alleged POG members are pseudonyms invented by the IG Report):

January 8, 2004: Electronic Communication (EC) opens domestic terrorism preliminary investigation into “Nicholas Herman” for being a leading POG member.

February 4, 2004: EC opens domestic terrorism preliminary investigation into “Arnold Philips” and “Terry Waterman” for “doing business as” POG and planning a March 20, 2004 “Global Day of Action against War and Occupation.”

February 24, 2004: Two FBI agents meet with Pittsburgh law enforcement to plan for security for March 20, 2004 event; the EC from the meeting notes that Thomas Merton Center had obtained parade permit for event.

March 20, 2004: Two FBI agents monitor the protest to “verify the participation” of Herman, Philips, and Waterman. The EC notes that no “actionable criminal activities” except trespass on university property took place.

April 19, 2004: EC notes the arrest for disorderly conduct and failure to disperse of Philips and five others protesting George Bush speech in Pittsburgh.

June 3, 2004: Two FBI agents conduct drive-by surveillance of 11 residences, businesses, and organizations frequented by POG members, including TMC.

July 2004, unknown date: Miami FBI field division informs Pittsburgh (and NY) FBI that at meeting in Pittsburgh, POG members planned protest for during the RNC Convention in August-September of that year.

July 9, 2004: FBI obtains 180-day extension for preliminary inquiry into Herman.

July 30, 2004: FBI obtains 180-day extension for preliminary inquiry into Philips and Waterman.

August-September 2004: FBI notes that Waterman had no criminal history and local law enforcement officials in Pittsburgh had never run into Waterman during their investigations of anarchists, though Chicago’s law enforcement said he had ties to anarchists there.

October 29, 2004: Confidential source report–ostensibly tied to the Herman investigation–on organizing meeting at TMC for later anti-war protest. Describes, “meeting and discussion was primarily anti anything supported by the main stream American.”

Unknown 2004: At least one more confidential source report on POG.

November 2004: FBI notes Pittsburgh police arrest of Philips, on disorderly conduct charges, for trying to prevent an officer from arresting another protester burning an American flag.

January 20, 2005: FBI closes preliminary investigation into Herman.

January 26, 2005: FBI closes preliminary investigation into Philips and Waterman.

January 28, 2005: EC reflecting internet article alleging that two FBI agents entered “two … normally locked doors” at Philips’ apartment (where a TMC intern and staffer lived) to leave a note for Philips to call the FBI; the FBI agent claimed they only entered the unlocked outside door and left a note on the apartment door.

February 15, 2005: Confidential source report on POG that includes TMC.

March 1, 2005: Confidential source report on POG that includes TMC.

March 19, 2005: Confidential source report that must have covered the protest marking the second anniversary of the start of the Iraq War.

April 27, 2005: Talon database entry (see PDF 7) describing POG anti-recruitment event targeted at Carnegie Mellon.

Unknown date (probably January) 2006: Chief Division Counsel tells agent to close the apparently still active source.

The IG Report makes it clear that for the fifteen months leading up to the event recorded in the Talon database entry, the FBI had been investigating POG and other Pittsburgh anti-war groups based only on the trumped up claim that members of the groups might commit a crime in the future. The FBI used a confidential informant (as I explain here, the informant was the FBI agent’s son’s friend who had gotten into legal trouble himself) to continue reporting on POG and the anti-war community for two months after the FBI had formally ended the investigation that purportedly justified the infiltration. Apparently, that source remained active for over a year after the investigation was closed (ACLU’s FOIA only covered records mentioning TMC before May 18, 2005, and the IG Report makes no claim to describe all the confidential informant reports on POG).

And surprise, surprise! The very subject of those ongoing investigations–Pittsburgh’s anti-war activism–ends up in DOD’s database.

Note that DOD destroyed this database (though the records were reportedly saved) in June 2006, precisely the month that ACLU sued to get DOD to comply with its FOIA for Talon records including those on POG, so DOD did not turn over those records on POG.

So we don’t know who generated the Talon report on the April 27, 2005 POG effort. But we do know that a number of the Talon reports on anti-war activists came from “Federal law enforcement personnel.” And we know that Talon database entries were routinely shared with local Joint Terrorism Task Forces which, as we’ve seen repeatedly in the IG Report, were the ones investigating Pittsburgh’s anti-war community.

The FBI invented a number of stories to explain away their systematic, long-term investigation of Pittsburgh’s anti-war community, not to mention to explain away the lies FBI told Congress in response to inquiries about that surveillance. But to the extent that surveillance was systematic, those lies served to protect not only FBI, but the CIFA program as well.

The Six FBI Reports Treating Merton Center Anti-War Activism as Terrorism

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Glenn Fine–DOJ’s Inspector General–is usually one of the most credible agents of oversight in the federal government. But his last report–examining whether the FBI investigated the First Amendment activities of lefty groups as terrorism–is a masterpiece of obfuscation. It manages to look at three different investigative efforts of the Thomas Merton Center’s anti-war activism, all treated as terrorism, and declare them unconnected and therefore not evidence that during the Bush Administration anti-war activism was investigated as terrorism.

The coverage of the report has largely focused on Robert Mueller’s reportedly unintentional lies to Congress explaining why an anti-war event sponsored by Pittsburgh’s Thomas Merton Center was investigated in the guise of international terrorism. For good examples, see Charlie Savage and Jeff Stein’s versions of the story.

The short version of Meuller’s misinformation to Congress the report offers is that 1) a rookie FBI officer was sent out as make-work to improperly surveil a peace protest, 2) after that became clear through FOIA, his boss and a lawyer in the office and the FBI’s Counterterrorism Division tried to retroactively invent reasons for the surveillance, 3) largely through the bureaucratic game of telephone that resulted, Robert Mueller (and in more significant ways, a response to a Patrick Leahy Question For the Record) provided false information to Congress.

One cornerstone to this rather credulous narrative is the way the IG Report treats the surveillance of Pittsburgh’s Thomas Merton Center. Rather than treat all the surveillance of the center together–which would reveal an obvious pattern and much better reason to lie to Congress–the report treats  several different iterations of surveillance separately. As a result, Fine was able to look at at least six reports treating Merton Center anti-war activism as terrorism (and ignore one more FBI investigative effort) and declare each of them acceptable.

The Chronology of FBI’s Thomas Merton Center Surveillance

Let’s start with the timeline (note all the names, except that of Farooq Hussaini, are pseudonyms chosen by DOJ IG, as reflected by the quotation marks) which shows fairly sustained surveillance of the Center over the course of three years:

November 29, 2002: Supervisory Special Agent “Susan Crosetti” sends rookie FBI officer “Mark Berry” to surveil people associated with the Thomas Merton Center distributing leaflets opposing the Iraq War. Berry takes photos of some participants. The report recording the surveillance is placed in the “international terrorism” file.

January 2003: Secret Service agent visits Merton Center to discuss upcoming protest in Pittsburgh.

February 26, 2003: Pittsburgh office produces Letterhead Memorandum, titled “International Terrorism Matters,” describing a vigil the Merton Center was planning for when the Iraq War started, as well as local events that had taken place on February 15, 2003 in association with the NY-based United for Peace and Justice sponsored protest.

April 4, 2003: FBI produces EC on Pittsburgh organizational meeting at the Merton Center in advance of Miami FTAA.

July 8, 2003: FBI EC describes threats that FTAA protesters would use puppets to attack riot police and Molotov cocktails.

July 10, 2003: First document recording ties between Person B (alleged to have pro-Palestinian feelings) and the Merton Center (note, this document must have been withheld from the FOIA).

July 21, 2003: Miami Field Office opens domestic terrorism investigation in relation to the FTAA protests.

July 25, 2003: Miami Field Office sends EC to Pittsburgh Field Office on August 29-31 planning meeting for FTAA including Merton Center.

July 26, 2003: FBI designates FTAA a Special Event worthy of heightened surveillance.

August 29-31, 2003: FBI conducts research on FTAA planning meeting at Merton Center in Pittsburgh.

October 29 (?), 2004: First report from confidential source mentioning the Merton Center (all these reports were faxed on July 8, 2005 and declassified on January 4, 2006). The source was apparently the friend of an agent’s son, and included reporting on planning for an anti-war march the Merton Center was planning. The source was purportedly recruited for an investigation into several alleged members of the Pittsburgh Organizing Group; that investigation was a terrorism investigation.

February 25, 2005: Second report from confidential source on the Merton Center.

March 1, 2005: Third report from confidential source on the Merton Center.

March 19, 2005: Fourth report from confidential source on the Merton Center.

Unknown date (before May 18, 2005): FBI agent visits Merton Center intern at intern’s residence asking for information about Merton Center activities.

May 18, 2005: ACLU PA FOIAs FBI documents referencing the Thomas Merton Center (among others).

Unknown date, 2006: Pittsburgh’s Chief Division Counsel reviews the source reporting (and two earlier anti-war reports) and tells agent to close the source.

January 23, 2006: “Carl Fritsch,” a member of Pittsburgh FBI’s legal staff, and Crosetti, both search FBI databases on Farooq Hussaini’s name.

February 1, 2006: National ACLU files FOIA.

February 8, 2006: FBI Field Division Attorney “Stanley Kempler” sends Record Management Division a routing slip, written by “Carl Fritsch,” indicating that the November 29, 2002 surveillance had been directed at Farooq Hussaini and alleging that Hussaini was associated with “Person B” who was the subject of a different investigation. This routing slip was–in the IG Report’s judgment–the first attempt to invent a cover story for the November 2002 surveillance. The same slip provided background on the February 26, 2003 and urged RMD not to release it.

March 14, 2006: ACLU releases FOIA documents, focusing on November 29, 2002 report; FBI issues a press release see PDF 205) inventing a public rationale for the surveillance and purporting to address the February 26, 2003 report.

March 22, 2006: FBI Director’s Research Group writes document “ACLU Allegations of Spying.”

May 2, 2006: Patrick Leahy asks Robert Mueller why FBI was surveilling anti-war demonstrators.

“Soon after” hearing: Leahy asks several Questions For the Record, including for any “earlier investigative memos” that served as the basis for the November 2002 surveillance.

May 16, 2006: Counterterrorism Division’s Executive Staff tasks “Clarence Parkman,” from their Iraq Unit, to draft a response to Leahy. Minutes earlier, Parkman had done a database search on Thomas Merton Center. Two analytical employees in the Iraq section emailed Kempler (cc’ing Berry) for more information. Kempler forwarded the request to Crosetti.

June 5, 2006: Iraq Unit of Counterterrorism Division provides 3-paragraph response to Leahy’s question about November 2002 anti-war rally newly claiming that Person B was the subject of the surveillance. The response also claims–contrary to the description in the original EC but corresponding to story Berry first told to IG–that Berry took pictures of just one, female, protester.

The IG presents this series of surveillance actions directed at the Merton Center as discrete events. It attempts to find an explanation for each incident of surveillance in isolation, and as such, is able to describe each as legally permissible, leaving only the attempt to retroactively invent an explanation for the November 2002 surveillance as really problematic.

But examining the other reports makes it clear that there was a pattern of investigating the Merton Center’s anti-war activities under the guise of terrorism.

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