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Administration Feeds Journalists Hints of More Secret Law … Journalists Instead Parrot “Russian Roulette” Line

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Back in January, Charlie Savage revealed that in 2007 the FISC approved a secret interpretation of the Roving Wiretap provision, one of the provisions due to sunset Sunday night. To support a domestic content collection order targeting al Qaeda targets overseas, Judge Roger Vinson rubber-stamped DOJ’s argument that — because Congress had let it wiretap individual targets without naming each of the phones they were using, that also meant it could target al Qaeda as a target — without naming each of the phones and email addresses it was targeting until after tasking them [this sentence updated for accuracy].

Judge Vinson ruled that this procedure was a legitimate interpretation of FISA because of a provision Congress had added to the surveillance law in the Patriot Act. The provision created so-called roving wiretap authority, which allows the F.B.I. to get orders to swiftly follow targets who switch phones, telling the court about the new numbers later.

Public discussion of the purpose and meaning of roving wiretap authority has focused on targeting individual terrorists or spies who seek to evade detection. But Judge Vinson accepted a Justice Department proposition that the target could be Al Qaeda in general, so if the N.S.A. learned of a new Qaeda suspect, it could immediately collect his communications and get after-the-fact approval.

The government stopped using this particular application as it transitioned to Protect America Act (though it even grandfathered some of the existing targets tasked under the prior argument). But the premise — that DOJ can target entire communication nodes based on the argument that a specific target is using unknown accounts passing through that node — surely remains on the books.

This secret interpretation of the law may not be as outrageous as FISC’s redefinition of the word “relevant” to mean “all,” but it is nevertheless a fairly breathtaking argument, with potentially dangerous ongoing implications.

Yet, in spite of the fact that a top journalist (not some dirty hippie like me!) revealed this secret interpretation, the journalists who transcribed Administration claims that sunsetting PATRIOT would amount to playing “national security Russian roulette” have also transcribed Administration claims that they’re only using Roving Wiretaps individually.

A second tool is the “roving wiretap,” which enables the FBI to use one warrant to wiretap a spy or terrorist suspect who is constantly switching cellphones. Those two in particular are of “tremendous value,” the first official said.

We don’t know they’re using Roving Wiretaps to tap entire circuits anymore. But we know they can. That detail should be included in any description before a journalist parrots the Administration claim this is an “uncontroversial” authority. If it’s not controversial, it should be.

Ditto the Lone Wolf provision.

Reporters are reporting something that — 11 years after passage of the Lone Wolf provision — ought to raise serious questions (note: Lone Wolf was actually not part of the PATRIOT Act; it was passed in 2004 as part of the Intelligence Reform and Terrorism Prevention Act).

A third tool allows the FBI to surveil a “lone wolf” suspect who cannot be tied to a foreign terrorist group such as al-Qaeda. It has never been used, but officials said it is a valuable authority they do not want to lose.

That provision has been on the book for 11 years, and the FBI still says they have never used it but even though they have never used it is a valuable authority. It was not used in cases — such as that of Khalid Ali-M Aldawsari — that solidly fit the definition of a Lone Wolf. Even if the FBI found someone who they thought was an international terrorist but didn’t know to what group he belonged, they could get an emergency wiretap to help them find evidence.

So what “value” does the Lone Wolf provision have, if it’s not to authorize the wiretapping of Lone Wolves?

I think there’s increasing reason to ask whether this, like the Roving Wiretap, serves to justify some other secret law, allowing the government to spy on people against whom it has no evidence of ties to al Qaeda or any other terrorist group, but on whom it nevertheless wants to use its terrorist authorities against.

We’re on the fifth or so reauthorization debate where FBI has said “we don’t use this thing but we find it very valuable anyway.” At some point, we need to start assuming that when they say they haven’t “used” it, they only mean in the literal sense, and they’re using it to support some secret, unintended purpose.

Rather than parroting Administration claims of “Russian roulette,” shouldn’t journalists be asking why, after 11 years, their claims of necessity make no sense?

FBI Doesn’t Consider Amerithrax among Its WMD “Highlights”

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The FBI’s WMD Center turned 5 on Tuesday and to celebrate, DOJ has released an interview with Dr. Vahid Majidi. (Part One, Part Two)

The interview is not all that interesting. I’m much more interested in the list of WMD cases Majidi offers as the successes the Directorate has had in the last five years. They are:

  • Jirair Avanessian, Farhoud Masoumian, and Amirhossein Sairafi, conspired to ship certain prohibited technologies–notably, vacuum pumps and pump-related equipment–to Iran.
  • Jeffrey Don Detrixhe, for possessing 62 pounds of sodium cyanide he intended to sell to “Fat Bob,” a member of the Aryan brotherhood; Detrixhe was captured using an informant, though he did obtain the sodium cyanide on his own.
  • Bechtel Jacobs employee Ron Lynn Oakley, for trying to sell uranium enrichment fuel rods to a person he thought was a foreign agent.
  • Roger Von Bergendorff, for possessing ricin (and an Anarchist Cookbook to learn to make it).
  • The “Newburgh Four,” for plotting to attack synogogues in NY; the plot was hatched by a notorious FBI informant who offered $250,000 for their involvement in the plot.
  • Khalid Ali-M Aldawsari, for obtaining materials to make explosives to use against American targets.
  • Michael Finton (aka Talid Islam), for attempting to bomb an Illinois Courthouse; the plot was a sting set up by an FBI informant, and the bomb was never live.
  • Hosam Smadi, for attempting to bomb a Dallas skyscraper; the plot was a sting set up by FBI undercover agents, and the bomb was never live.
  • Michael Crooker, for possessing ricin and threatening a Federal prosecutor (including by invoking Tim Mcveigh); an earlier prosecution on firearms possession was overturned.
  • Najibullah Zazi, for attempting to use TATP to attack the NYC subway.
  • The Hutaree, for attempting to use explosives to attack the government.

Just about all these cases were plead. And, as the list makes clear, a number of the cases (with the exception of the Zazi and Aldawsari, those involving Islamic terrorists) were stings built by informants and/or undercover agents. The “real” plots were just as likely to be launched by right wing terrorists as by Islamic terrorists.

Notice what’s not on this list, though. In addition to Mohammed Osman Mohamud (another plot created by an FBI sting)  and Kevin William Harpham (the alleged MLK bomber) and a number of others, these WMD successes don’t include Amerithrax, by far the biggest investigation into WMD in the last five years.

The interview makes just one reference to a potential anthrax attack:

Q. What about all those white powder letters?

Dr. Majidi: Most turn out to be hoaxes, and they require a lot of investigative resources, but we have to investigate each and every incident. You never know when one of them will be real.

In a different inteview, Majidi points to the FBI’s investigation of hoax letters–but not the real ones–among the Directorates’ work.

If you remember, after 9/11 there was a rash of hoax letters that contained white powder sent to various recipients including to U.S. legislators. People were worried about the spread of anthrax and other disastrous outcomes. Because of our work at the WMD Directorate, we realized a high rate of success in prosecuting those who sent the letters.

These threats were insidious because they terrorized people, closed down businesses, and essentially stopped the business of governing the United States until the FBI could investigate. It involved a tremendous amount of local and federal resources, and at the same time took those resources away from other critical law enforcement and investigative needs. It cost taxpayers money, harmed businesses, essentially slowed down our society, and created measurable panic and insecurity.

No mention–in this interview or the earlier one–of the letters that didn’t end up being a hoax.

And it’s not that the WMD Directorate wasn’t involved in Amerithrax. Indeed, when Majidi, then the WMD Directorate’s Assistant Director, conducted the briefings to explain why FBI believed Ivins was the anthrax culprit, he attributed part of the “success” to the WMD Directorate.

The creation of the Weapon of Mass Destruction Directorate is another example of FBI’s progressive approach focusing on prevention as well as investigations on all issues involving chemical, biological, radiological, and nuclear materials.

In terms of time, cost, and attack severity, the anthrax attack has been the most important thing the WMD Directorate has worked on since its inception. So why is Majidi so reluctant to talk about it?

Two WMD Terrorists, the President’s Daily Briefing, and Lone Wolves

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This Time article is designed to be a swan song to Robert Mueller’s career; it builds over almost 6,500 words to the conclusion that, “Most people inside the bureau believe that the blown opportunities to head off 9/11 would not recur today.” Mueller, the article suggests, has fixed the problems that led the FBI to miss 9/11.

But a number of details make the article well worth a very close read. For example, it:

  • Provides an example of the kinds of things that make it into Mueller’s daily brief
  • Describes how Mueller almost quit when the White House ordered the FBI to return materials seized from William Jefferson’s congressional office
  • Describes one of Mueller’s futile attempts to get our supposed partner in the war on terror, President Ali Abdullah Saleh, to arrest Jamal al-Badawi, the USS Cole bomber

Of particular interest, though, is the article’s description of the FBI’s parallel tracking of two alleged WMD terrorists: the Saudi Khalid Ali-M Aldawsari and the white supremacist Kevin William Harpham.

Two men, 1,300 miles apart, had Mueller’s attention when he convened his operations brief on Feb. 17. Khalid Ali-M Aldawsari, a 20-year-old Saudi national, studied chemical engineering at Texas Tech University. Kevin William Harpham, 36, an unemployed Army veteran and avowed white supremacist, lived in a small town near Spokane. On this day the FBI’s interest was a closely guarded secret, but indictments to come would allege that the two men were behind separate plots to set off powerful homemade bombs. Until recently, the FBI had not heard of either man.

The Spokane attack struck without warning on Jan. 17. Shortly before the start of Spokane’s Martin Luther King Jr. Day parade, city workers found an abandoned backpack along the route. Inside was an explosive core laced with rat poison — an anticoagulant — and surrounded by lead fishing weights. A remote car starter and cell-phone parts were mated in a detonation circuit. The FBI lab in Quantico, Va., recovered DNA, but there was no suspect to test for a match.

Good luck and shoe leather led the FBI to Aldawsari, the Saudi student. One of the trip-wire programs rolled out after 9/11 invited vendors of hazardous goods to report unusual purchases to the feds. Aldawsari went undetected at first as he acquired the ingredients of TNP, an explosive used in World War I artillery shells. Amazon.com filled an order for 3 gal. of concentrated sulfuric acid, and the Georgia-based QualiChem Technologies shipped 10 boxes of nitric acid to a FedEx mail drop. Neither reported the buys. Aldawsari also dodged a student-visa review after flunking out of Texas Tech. Only on Feb. 1, when he ordered phenol, his last ingredient, did Aldawsari trip an alarm. Carolina Biological Supply tipped the FBI’s Charlotte, N.C., field office, and Con-Way Freight, where Aldawsari planned to take delivery, sent word to the Dallas field office by way of the Lubbock police.

By showing the parallel pursuit, Time reveals something disturbing about our country’s pursuit of terrorists. While the President gets briefed on suspected Islamic terrorists, he doesn’t get briefed on suspected right wing terrorists.

Harpham’s plot, if the allegations prove true, turned out to be the more advanced. He had built a powerful bomb and placed it, for maximum carnage, atop a metal bench with a brick wall behind it to focus the blast. The half-complete work of Aldawsari, an Arab whose jihadi aims fit the popular image of a terrorist, received far more public attention. More than a year ago, Mueller raised some eyebrows when he testified that “homegrown and lone-wolf extremists pose an equally serious threat.” But that message did not take root in the body politic or even in the national-security establishment. As the FBI chased the twin terrorist plots all through February, President Obama’s team heard daily reports about Aldawsari’s case but not Harpham’s. Some of Mueller’s lieutenants marveled at the contrast.

Domestic plots are not routinely included in the President’s daily briefing or the interagency threat matrix, an FBI official says, even though “the degree of harm is often greater” than in jihadi terrorist plots.

This is a troubling revelation, particularly in an article that concludes the FBI would have prevented 9/11. It suggests that the FBI–and the President–might still miss a similar attack launched by the next Timothy McVeigh. Billions of dollars and an entire shift of focus, and yet we’re still not watching white terrorists as closely as we watch brown ones.

And on the subject of terrorism investigation, the Time article explains–but does not emphasize–an important detail about the investigation of Aldawsari. As I noted when he was arrested, he was the perfect candidate for a Lone Wolf warrant. He was a non-resident alien and when we got a lead on him he appeared to be (and in fact turned out to be) acting alone. He’s just the kind of self-radicalized non-US person whom the PATRIOT Act’s Lone Wolf provision is meant to target. But, as Acting head of DOJ’s National Security Division Todd Hinnen revealed to Congress in March, we didn’t use the Lone Wolf provision to investigate Aldawsari. Time provides some details about what we did use.

When Mueller convened his executive team on Feb. 17, Aldawsari had been under a microscope for two weeks. Four shifts of agents watched the Saudi engineering student 24 hours a day. Vehicles equipped with StingRay transceivers followed him around greater Dallas, recording his cell-phone calls. Agents had slipped secretly into Aldawsari’s apartment, armed with a warrant from the Foreign Intelligence Surveillance Court. They inventoried his chemicals, cloned his computer drive and copied a journal handwritten in Arabic.

Hours before that morning’s briefing, Aldawsari had published a blog post alluding to a special celebration of his upcoming 21st birthday. One of his handwritten journal entries, according to a hasty FBI translation, said, “And now, after mastering the English language, learning how to build explosives and continuous planning to target the infidel Americans, it is time for jihad.”

[snip]

In Lubbock, the team that searched Aldawsari’s apartment had been interrupted and did not have time to learn whether he had unpacked his chemicals or whether he had the makings for a high explosive that required no phenol. The hasty retreat also left a gap in electronic surveillance, which nowadays has to include not only phone taps and pinhole cameras but voice-over-Internet, social-network messaging and online-gaming consoles. The Texas plot was unfolding across three e-mail addresses, which sent one another lists of “targets” and “nice targets” and directions for handling TNP. Was it one man? Two? Three?

The search team had to get back in. Mueller had no patience for explanations that agents were doing “pattern-of-life analysis” to find an opening. “You’re not getting it done,” Mueller said. “What are you going to do about it?” Later that day, the sneak-and-peek squad got it done. Then the investigators solved the mystery of the three e-mail addresses: Aldawsari was using all of them, they concluded, to send notes to himself.

While this passage doesn’t explain all of the warrants (or lack thereof) the FBI used to investigate Aldawsari, it’s clear they were able to get a Sneak and Peek warrant (as well as, presumably, warrants to wiretap his communications) without having to resort to the Lone Wolf provision. That seems to support the argument of those like Julian Sanchez, that investigators have the tools they need to find someone like Aldawsari without continued approval of the Lone Wolf provision.

Besides, the Lone Wolf wouldn’t be available to investigate the far more dangerous bomb used in the MLK Day attempt. Maybe we should focus on guarding against terrorist attacks by American citizens rather than trying to extend powers we don’t need to investigate the non-citizens we’re already scrutinizing closely.

We Didn’t Need Lone Wolf Provision to Catch Lone Wolf

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A few weeks ago, I wondered whether Khalid Ali-M Aldawsari, a Saudi citizen arrested in Texas for purchasing the ingredients to build picric acid, would be our first Lone Wolf. Here was a non-US person, seemingly unconnected to any known terrorist organizations; the FBI obviously used his emails to indict him. So would he be the first ever use of the Lone Wolf provision?

Nope. Todd Hinnen, the Acting head of the National Security Division, reveals in his congressional testimony today we still haven’t used the provision.

The next expiring provision is the so-called “lone-wolf” definition, contained in section 1801(b)(1)(C) of Title 50. This definition allows us to conduct surveillance and physical search of non-U.S. persons engaged in international terrorism without demonstrating that they are affiliated with a particular international terrorist group.

There are two key points to understand about this provision. First, it applies only to non-U.S. persons (not to American citizens or green-card holders), see 50 U.S.C. § 1801(b)(1)(C), and only when they engage or prepare to engage in “international terrorism.” See 50 U.S.C. § 1801(c). In practice, the Government must know a great deal about the target, including the target’s purpose and plans for terrorist activity (in order to satisfy the definition of “international terrorism”), but need not establish probable cause to believe the target is engaging in those activities for or on behalf of a foreign power..

Second, although we have not used this authority to date, it is designed to fill an important gap in our collection capabilities by allowing us to collect on an individual foreign terrorist who is inspired by – but not a member of – a terrorist group. For example, it might allow surveillance when an individual acts based upon international terrorist recruitment and training on the internet without establishing a connection to any terrorist group. It might also be used when a member of an international terrorist group, perhaps dispatched to the United States to form an operational cell, breaks with the group but nonetheless continues to plot or prepare for acts of international terrorism. If such cases arise, which seems increasingly likely given the trend toward independent extremist actors who “self-radicalize,” we might have difficulty obtaining FISA collection authority without the lone-wolf provision. [my emphasis]

Fine. Then we can give up the charade that we still need this provision? Obviously it had gotten easy enough to get electronic communications we don’t need this on the books.

FBI Gets Its Lone Wolf, Just in Time for PATRIOT Debate

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This morning, the FBI arrested 20-year old Saudi citizen Khalid Ali-M Aldawsari on one charge of attempted use of a weapon of mass destruction. According to the FBI, Aldawsari had allegedly purchased all the ingredients to make an IED using the explosive trinitrophenol, which also known as T.N.P., or picric acid. In addition, he had researched targets, including George W Bush’s home in Dallas, not far from his own location in Lubbock, TX.

If the facts are as alleged, Aldawsari sounds like a potentially much more dangerous person than the number of aspirational terrorists the FBI has entrapped of late. So I am grateful that Con-Way freight officials alerted the Lubbock Police Department when Aldawsari attempted to have them receive his shipment of phenol, an ingredient in picric acid.

But I have two concerns. The first, as Robert Chesney lays out, this case seems to strain the meaning of “attempt” in the charge.

This could be an important case from a legal perspective, in the sense that it may turn on the anticipatory scope of attempt liability – an issue that just doesn’t matter when it is possible to charge conspiracy, but which becomes central in the case of a lone wolf.

Absent a conspiracy, the prosecutors are instead relying on attempt as the inchoate charge (under 18 USC 2332a, the WMD statute; recall that “WMD” is defined very loosely to encompass more or less all bombs). The interesting question is whether the facts alleged below suffice to trigger “attempt” liability.  It does not sound as if he had yet assembled a bomb, which would have made for a much easier case.  On the other hand, the many substantial steps that he had actually taken, if one credits the allegations below, leave no room for doubt as to what was going on.  In any event, we can expect some interesting and important debate about the anticipatory scope of the attempt concept. If this proves problematic, and if this turns out to be a truly solo operation, it will serve to highlight a critical point about inchoate criminal law: criminal liability attaches far earlier in the planning process for groups than for individuals.

Unlike the case of Mohamed Osman Mohamud, the FBI doesn’t have evidence of the suspect literally trying to trigger a bomb. Unlike Najibullah Zazi, they FBI doesn’t have evidence of him trying to make the explosive he intended to use. They have, according to the affidavit, just evidence that he had purchased all the things he’d need to make an IED, and evidence that he had researched potential targets. Is that going to be enough to constitute an attempt?

But what I find more interesting is a point Chesney also alludes to.

Note too that this was not a “sting” case that might raise objections on entrapment grounds, at least according to these allegations.  It is very much the real deal lone wolf scenario, or so it seems, and we were deeply fortunate that it was discovered in advance.

Unlike Zazi and Mohamud, who had contacts with people abroad, Aldawsari is portrayed to be someone who plotted this completely on his own using research available on the Internet. Also unlike Zazi and Mohamud, Aldawsari is not a US person; he’s an F-1 student visa holder, meaning he qualifies for the Lone Wolf provision in the PATRIOT Act. And it appears likely that the government used the Lone Wolf provision to collect evidence in this case.

It appears Aldawsari first came to the government’s attention when Con-Way Freight contacted the Lubbock Police sometime on  January 30 or February 1, 2011 to report Aldawsari’s attempt to get them to receive the phenol he had ordered. It appears that the FBI in Greensboro, NC (either in response to the Con-Way alert or independently, the affidavit doesn’t make clear) learned that the company from which Aldawsari ordered the phenol had had a suspicious attempted purchase of phenol. From there, the FBI agent in this case, Michael Orndoff, first had the chemical supply company call (on February 3) and then posed as an employee of that company to call (February 8) Aldawsari to find out more about why he intended to buy the phenol. The FBI conducted physical searches of Aldawsari’s apartment on February 14 and February 17.

But the rest of the evidence against Aldawsari appears to come from what the affidavit repeatedly describes as “legally authorized electronic surveillance.” The affidavit describes emails on three different accounts going back to October 2010 (though I assume these would have been accessible in archived storage).

Now, we don’t know that the FBI used the Lone Wolf provision to get those emails. But DOJ has a habit of using expiring provisions just in time to demand their reauthorization. I suppose we’ll learn whether they did when the debate over the PATRIOT Act heats up again in the coming weeks.

If Aldawsari is as he is alleged, the detective work here was responsive and thorough; it may have prevented a real attack. But I can’t help but wonder whether the FBI triggered this “attempted use of a WMD” early so as to have its Lone Wolf in time for Congressional debates.