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Glenn Fine to Investigate Government Use of PATRIOT Powers Again

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Main Justice reports that Pat Leahy and DOJ’s Inspector General Glenn Fine have been chatting about further IG review of the FBI’s use of the several PATRIOT provisions that were contentious issues in last years attempt to reauthorize the PATRIOT Act. This means that Fine is going to do what the legislation would have mandated–conduct further reviews of these authorities–on his own. But I’m also interested in the scope Fine lays out for his review in his response to Leahy.

We intend to initiate another review examining the FBI’s use of NSLs and Section 215 orders for business records. Among other issues, our review will assess the FBI’s progress in responding to the OIG’s recommendations in the prior reports. In addition, we intend to examine the number of NSLs issued by the FBI from 2007 through 2009, and we will closely examine the automated system to generate and track NSLs that the FBI implemented to address the deficiencies identified in the OIG reports.

In addition, our review will cover the FBI’s use of Section 215 orders for business records. It will examine the number of Section 215 applications filed from 2007 through 2009, how the FBI is using the tool today, and describe any reported improper or illegal uses of the authority. Our review will also examine the progress the FBI has made in addressing recommendations contained our prior reports that the FBI draft and implement minimization procedures specifically for information collected under Section 215 authority.

We also intend to conduct a programmatic review of the FBI’s use of its pen register and trap and trace authority under the FISA. That part of the review will examine issues such as how the FBI uses the authority to collect information, what the FBI does with the information it collects, and whether there have been any improper or illegal uses of the authority either reported by the FBI or identified by the OIG.

I find the scope interesting, first of all, because it would put all three of these provisions–NSLs, 215, pen registers–into one report. Given the way they’ve been used together in the past (Section 215 was used to get contact data more expansive than available under pen registers, for example), it will be interesting to see how Fine understands these provisions to work together. I could be overreading, but Fine seems to have a sense that the “what the FBI does with the information” might be interesting.

I’m also interested in his specific promise to investigation his recommendation that DOJ develop minimization procedures. I would bet money DOJ has done nothing to respond to that recommendation. If so, what we may get in the report will be a (probably redacted) discussion of how DOJ has collected a bunch of information from otherwise innocent people and kept it. Remember the probable use of Section 215 in the Najibullah Zazi case (focused on some associates who also bought acetone)? Those people appear never to have been charged, suggesting the possibility that some Muslims who bought beauty supplies remain in a DOJ database even though no connection with Zazi’s plot has been found. And then consider the suggestion that FBI is using Section 215 to collect more than just “records,” but also much more intrusive medical records (and possibly DNA). That might create some database indeed, full of information that was not minimized.

So it sounds like it might result in an interesting report.

Faisal Shahzad’s “Waiver” of His Rights

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Faisal Shahzad was arrested just before midnight on May 3.

On May 5, the Pakistani newspaper Dawn reported that one of Shahzad’s friends and his father-in-law, Iftikhar Mian (elsewhere named as Mohammad Asif Mian), had been detained by Pakistani intelligence. The same report describes a meeting that took place on May 4, at which Pakistani authorities promised US Ambassador Anne Patterson full cooperation with the investigation. Also on May 5, the AP took a photograph (published in a May 6 Time article) showing a policeman apparently standing guard in front of Shahzad’s father’s house. Later the same day, less than 48 hours after Shahzad’s arrest CBS reported (apparently for a second time, given the title and the picture referring to an arraignment expected but postponed the day before) that Shahzad’s arraignment had been delayed. On May 6, a blog reported that Faisal’s father, retired air force officer Baharul Haq, was taken into “protective custody” by Pakistani officials.

On May 9, Dawn reported that the FBI was seeking access to Shahzad’s father.

On May 11, Dianne Feinstein confirmed that Shahzad had waived his right to speedy arraignment.

On May 14, Pakistan’s Interior Minister stated that there had been no formal arrests in Pakistan related to the Shahzad case.

In all of this reporting, there has been no solid reporting as to the status or location of Shahzad’s wife, American citizen Huma Mian, or his kids, at least one of whom is also US-born (though some reports had her staying at Shahzad’s father’s house).

I raise all this to point out that at a time when it still wasn’t clear whether or not Shahzad would “waive” his rights to appear in court and–apparently–have a lawyer, Pakistani authorities had already detained at least Shahzad’s friend and father-in-law, potentially his father, and might well have police guard on the house at which his wife remained (though, as I pointed out, we have no real clarity as to Huma Mian’s location). All of this presumably occurred in response to the US request for help on May 4, just hours after Shahzad was arrested. And, in that same period of time, Shahzad rather curiously waived not just his right to an arraignment, but possibly also his right to an attorney.

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Dick Cheney’s Counterterrorism Incompetence Continues to Endanger Us

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When I was out tromping around Yosemite (!!) on Friday, one of Najibullah Zazi’s co-conspirators, Zarein Ahmedzay, plead guilty to two terrorism-related charges.

Mark that up as yet another counterterrorism victory for civilian courts.

But it’s more than that. As Isikoff and Hosenball emphasize, the government revealed on Friday that Zazi and Ahmedzay received instructions from two top al Qaeda figures–Saleh al-Somali and Rashid Rauf–in 2008. Here’s how DOJ reveals the detail in their press release:

As Ahmedzay admitted during today’s guilty plea allocution and as reflected in previous government filings and the guilty plea allocution of co-defendant Najibullah Zazi, Ahmedzay, Zazi and a third individual agreed to travel to Afghanistan to join the Taliban and fight against United States and allied forces. In furtherance of their plans, they flew from Newark Liberty International Airport in Newark, N.J., to Peshawar, Pakistan at the end of August 2008. Ahmedzay and the third individual attempted to enter Afghanistan but were turned back at the border and returned to Peshawar.

Within a few days, Ahmedzay, Zazi and the third individual met with an al-Qaeda facilitator in Peshawar and agreed to travel for training in Waziristan. Upon arriving, they met with two al-Qaeda leaders, but did not learn their true identities. As the government represented during today’s guilty plea, the leaders were Saleh al-Somali, the head of international operations for al-Qaeda, and Rashid Rauf, a key al-Qaeda operative. The three Americans said that they wanted to fight in Afghanistan, but the al-Qaeda leaders explained that they would be more useful to al-Qaeda and the jihad if they returned to New York and conducted attacks there. [my emphasis]

Now, that’s interesting for several reasons. Rauf, as you might recall, had a key role in planning the foiled 2006 attempt to use liquid explosives to blow up airliners (potentially using the same TATP Zazi was going to use in his plot). The British were busy conducting a solid law enforcement investigation of the plot and were working with Pakistan to extradite Rauf. But partly in an effort to shore up Bush’s crappy poll numbers, Cheney and the guy who ordered the destruction of the torture tapes, Jose Rodriguez, asked the Pakistanis to pick up Rauf before the Brits could finish their investigation. Here’s how Ron Suskind described what happened.

NPR: I want to talk just a little about this fascinating episode you describe in the summer of 2006, when President Bush is very anxious about some intelligence briefings that he is getting from the British. What are they telling him?

SUSKIND: In late July of 2006, the British are moving forward on a mission they’ve been–an investigation they’ve been at for a year at that point, where they’ve got a group of “plotters,” so-called, in the London area that they’ve been tracking…Bush gets this briefing at the end of July of 2006, and he’s very agitated. When Blair comes at the end of the month, they talk about it and he says, “Look, I want this thing, this trap snapped shut immediately.” Blair’s like, “Well, look, be patient here. What we do in Britain”–Blair describes, and this is something well known to Bush–”is we try to be more patient so they move a bit forward. These guys are not going to breathe without us knowing it. We’ve got them all mapped out so that we can get actual hard evidence, and then prosecute them in public courts of law and get real prosecutions and long prison terms”…

Well, Bush doesn’t get the answer he wants, which is “snap the trap shut.” And the reason he wants that is because he’s getting all sorts of pressure from Republicans in Congress that his ratings are down. These are the worst ratings for a sitting president at this point in his second term, and they’re just wild-eyed about the coming midterm elections. Well, Bush expresses his dissatisfaction to Cheney as to the Blair meeting, and Cheney moves forward.

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Eric Holder Addresses the Constitution Project

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I happened to get lost, end up in DC, and show up to cover the Constitution Project’s annual dinner, particularly Attorney General Eric Holder’s keynote (see here for the [!]Breaking [!]News on that front).

Before I get into that, I just wanted to note how gratifying it is to be in a crowd of DC folks who fight for things like defendant rights and rule of law. The two awardees were George Kendall and Thomas Pickering (Alberto Mora introduced Pickering).

As Dahlia Lithwick said in her Emcee gab, these folks are the heros.

Here’s my liveblog of his talk. It sure felt like Holder’s apologia for military commissions to a bunch of civil libertarians. When you come before a bunch of people who believe in civilian trials and spend most of your time trying to push the benefits of both civilian trials and military commissions, it does not bode well.

After thanking the Constitution Project for its support of expanding access to legal services, Holder addresses his testimony before the Senate Judiciary Committee. [here’s his testimony]

Protecting America’s safety, America’s interests, and America’s values by adhering to the rule of law.  We are a nation at war. Go to bed each night thinking about how best to keep our people safe. I am determined to win this war. I know we can. We won’t win by adhering to a rigid ideology or a narrow approach. But we are also a nation that lives under rule of law. Just as on the battlefield, our government must use all the tools we can to win the war.

Scoffs at those who say Obama Administration has continued policy of Bush Admin.

Calls military commissions and civilian trials “weapons against those who choose to do us harm.”

Differences between the two fora.

Proposal by some to do away with civilian courts, not realistic. Without civilian authority, we would lose one of our key weapons, It would deny us means to punish guilty, and it would be disservice to history of civilian justice system. No question that if such a plan advances it would harm our national security.

Just look at what civilian courts have achieved.

Intelligence Undie bomber has provided has been actionable.

Names the successes:

  • Najibullah Zazi
  • Undie Bomber
  • David Headley
  • Aafia Siddiqui

In some cases, military commissions appropriate. Congress has taken extraordinary steps to improve commissions since they were first introduced. MCs reflect realities of battlefield. I have faith in our MCs, which is why I have referred 6 cases. There is no inherent contradiction between referring cases while at the same time prosecuting terrorists in civilian courts.

Commissions only have jurisdiction over AQ and affiliated groups. Not Hamas, not FARC. Not against Americans. MCs can only prosecute some violations of rules of law. Civilian prosecutors can also make other charges: firearms, false statements. Terrorism plots can be disrupted, while still collecting information. Civilian courts can provide just punishment for variety of bad acts.

Our civilian courts have 200 years of precedence. They have a reliability that gives them credibility.

Describes preference of allies to cooperate with civilian trials, says he hopes that as MCs get a better reputation, allies will cooperate on MCs too.

Debate has meant to scare rather than educate.

Holder picks up his defense of prosecutors who serve honorably. They deserve our gratitude and our respect.

Another Reason to Use Civilian Courts

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This WaPo story–which tells how Mohamedou Ould Slahi and Tariq al-Sawah got special privileges and too much fast food at Gitmo in exchange for cooperation–focuses on the things the detainees get, like Subway sandwiches, their own mint garden, and their own compound. (h/t cs) But it really points to one more reason why civilian trials may be better than military commissions: because of the ability to offer something in exchange for cooperation.

With both the underwear bomber and Najibullah Zazi, officials were eventually able to get their cooperation investigating their ties with the al Qaeda network in exchange for the possibility of leniency (and for the underwear bomber, a promise not to try for the death penalty). And Jamal al-Fadl ended up being one of the key witnesses in the Embassy Bombing trial, which helped put US-based al Qaeda figures in jail for life.

Yet with Slahi and al-Sawah, there seems to be no easy way to reflect their cooperation. Rewarding these two detainees for having cooperated is considered “a hard sell.”

“I don’t see why they aren’t given asylum,” said W. Patrick Lang, a retired senior military intelligence officer. “If we don’t do this right, it will be that much harder to get other people to cooperate with us. And if I was still in the business, I’d want it known we protected them. It’s good advertising.”

A current military official at Guantanamo suggested that that argument was fair. Still, he said, it’s “a hard-sell argument around here.”

Heck, in the case of Slahi, the government is appealing Judge Robertson’s order that he be released.

And, as a number of sources admit later in the EPU range of this article, we simply don’t have the means to account for cooperation in our disposition of higher level al Qaeda detainees.

A Justice Department-led review of the cases of all detainees at Guantanamo Bay, which recently wrapped up, decided that Sawah and Slahi are owed no special treatment. An administration official, speaking before the federal court ruling on Slahi, said the government wants either to prosecute them or to hold them in some form of indefinite detention without charge.

Some current and former military officials say there should be other options. The treatment of high-profile informants such as Sawah and Slahi, they argue, will affect the government’s ability to turn other jihadists.

“We are much behind in discussing and working out details of some form of witness protection program for the most potentially important and in-danger witnesses,” said a military official who has served at Guantanamo.

The former chief military prosecutor at Guantanamo, Lawrence Morris, said officials always weighed a detainee’s cooperation, particularly its quality and timeliness, before making a charging decision.

“We were not heedless to other factors, but our job was to make our best judgment from a criminal standpoint,” said Morris, who noted that the decision to bring a case against Sawah came after prolonged deliberation and consultation with intelligence officials.

So instead of providing an incentive for al Qaeda insiders to flip in exchange for special treatment, we instead push for indefinite detention for them (albeit detention softened by fast food). And we’re left with the kind of intelligence hack contractors can collect in the field rather than real inside information.

Holder: Zazi's plot "one of the most serious terrorist threats to our nation since September 11th, 2001"

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And all resolved using civilian law enforcement. From the DOJ press release:

The Justice Department announced that Najibullah Zazi pleaded guilty today in the Eastern District of New York to a three-count superseding information charging him with conspiracy to use weapons of mass destruction (explosive bombs) against persons or property in the United States, conspiracy to commit murder in a foreign country and providing material support to al-Qaeda. Among other things, Zazi admitted that he brought TATP [Triacetone Triperoxide] explosives to New York on Sept. 10, 2009, as part of plan to attack the New York subway system.

Zazi, 25, a resident of Aurora, Colo., and legal permanent resident of the United States from Afghanistan, entered his guilty plea today before Chief U.S. District Judge Raymond J. Dearie. Zazi faces a maximum statutory sentence of life in prison for the first two counts of the superseding information and an additional 15 years in prison for the third count of the superseding information.

[snip]

As Zazi admitted during today’s guilty plea allocution and as reflected in previous government filings, he and others agreed to travel to Afghanistan to join the Taliban and fight against United States and allied forces. In furtherance of their plans, they flew from Newark Liberty International Airport in Newark, N.J., to Peshawar, Pakistan at the end of August 2008. Although Zazi and others initially intended to fight on behalf of the Taliban, they were recruited by al-Qaeda shortly after arriving in Peshawar. Al-Qaeda personnel transported Zazi and others to the Waziristan region of Pakistan and trained them on several different kinds of weapons. During the training, al-Qaeda leaders asked Zazi and others to return to the United States and conduct suicide operations. They agreed.

[snip]

“This was one of the most serious terrorist threats to our nation since September 11th, 2001, and were it not for the combined efforts of the law enforcement and intelligence communities, it could have been devastating,” said Attorney General Eric Holder. “This attempted attack on our homeland was real, it was in motion, and it would have been deadly. We were able to thwart this plot because of careful analysis by our intelligence agents and prompt actions by law enforcement. They deserve our thanks and praise.”

Note how the superseding information includes conspiracy to commit murder in a foreign country (but not such a conspiracy here in the US). I guess that’s a signal that from this plea deal DOJ expects to get a lot more on the people in Pakistan Zazi was working with.

Najibullah Zazi: Another Counterterrorism Victory for Civilian Law

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The AP is reporting that Najibullah Zazi, who was arrested last September as he was preparing to deploy bombs made out of beauty supply derived TATP, will plead guilty later today.

Which means that less than a year after a person allegedly trained in Pakistani al Qaeda-affiliated training camps tried to attack in the US, he will start serving time for his crimes.

Meanwhile, a bunch of other Afghan and Pakistani-trained alleged terrorists rot away in Gitmo because Lindsey Graham has a fetish for military commissions.

As Jeralyn notes,

So he had lawyers from day 1, waived his Miranda rights, wasn’t tortured, and is now cooperating and pleading guilty. He’s going to get a reduced sentence in exchange for his cooperation. The U.S. gets the benefit of his knowledge. He gets punished and incarcerated.

All of this in a federal criminal court with him being provided his full panoply of constitutional rights.

This is the same scenario tha will play out with Umar Farouk Abdulmutallab. The same can and should be done with the 9/11 defendants.

Can we stop playing this counter-productive charade with military commissions now?

More Zazi Justifications for PATRIOT

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For the second time today, the WaPo has a very obedient regurgitation of DOJ’s efforts to use the Zazi investigation to push for reauthorization of the PATRIOT Act. There’s the proclamation that the plot was very serious (which I am not challenging).

Attorney General Eric H. Holder Jr. said Tuesday that an alleged hydrogen peroxide bomb threat was "very serious" and "could have resulted in the loss of American lives."

[snip]

Holder declined comment on the next phase of the investigation, including the timing on possible arrests. He nonetheless expressed confidence that authorities had defused the alleged al-Qaeda-inspired threat, which may have been intended to kill "scores" of Americans. 

Tied to the call for Congress to "swiftly" reapprove PATRIOT provisions.

Holder used the occasion to call on Congress to swiftly reauthorize provisions of the USA Patriot Act, including tools that allow the FBI to conduct roving wiretaps of suspects, that have helped the bureau and its law enforcement partners in multiple cases. He nodded to the concerns of civil liberties advocates by acknowledging, "There’s certainly a conversation that can be had about, do they need to be reexamined," but Holder went on to assert that "the tools as they exist are valuable and not in a theoretical sense."

And, as with the WaPo article this morning, this article accepts the Administration’s focus on roving wiretaps, when that’s not really the focus of any challenge to PATRIOT reauthorization.

Say, Justice press corps … any chance you might point out that the real questions pertain to Section 215, NSLs, and data mining aspects of the domestic surveillance program?

Update: Oh!! Ask and you shall receive! Apparently a few members of the Justice press corps did ask these questions, though Holder didn’t answer them. From Josh Gerstein:

Holder said Foreign Intelligence Surveillance Act orders produced "much of the information" in the case, but he did not offer details on how Patriot Act provisions were used in the case. He also rebuffed questions about why those tools are superior to conventional authorities and why the Justice Department is vigorously opposing attempts in Congress to raise the threshold of proof needed to issue demands for information in connection with terrorism investigations.

"The existence of these tools is of great assistance to us," Holder said.

Update: Josh has put up a post with the explicit detail from today’s presser on Section 215. Here’s an excerpt, but go read the complete Read more →

Announcing National Use Zazi to Gain New Surveillance Powers Day!

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The last line of this article on how the Najibullah Zazi arrest was a victory for the Obama Administration’s approach to terrorism boasts that the Administration didn’t have a John Ashcroft-style press conference on the day of the arrest.

With Zazi’s arrest, administration officials said they had a renewed sense of confidence that they could approach security threats in a new way. "The system probably worked the way it did before, but we made a conscious decision not to have a big press conference" about Zazi’s arrest, a senior official said. 

Which is pretty hysterical, coming as it does in one article of several that are obviously similarly seeded, boasting of Obama’s new approach to terrorism. There are several aspects to this apparent PR blitz. Articles providing details (though none as detailed as the NPR story over the weekend) explaining how the CIA learned of Zazi and shared info with the FBI. Articles discussing the address by Eric Holder, Janet Napolitano, and Robert Mueller yesterday, lauding information sharing. All of which will lead into coverage of Obama’s address to the National Counter-Terrorism Center, scheduled for today at 11:40.

We didn’t have a press conference when we arrested Zazi, the WaPo’s source (who could be Rahm or John Brennan) seems to be saying, but we’re sure as hell going to have a media blitz about it when it serves our purposes.

What’s especially nice about this WaPo piece, though, is it makes the goal of the media blitz explicit, tying it to the discussion of the PATRIOT Act.

At the same time, the Obama administration is pressing Congress to move swiftly to reauthorize three provisions of the USA Patriot Act set to expire in late December. They include the use of "roving wiretaps" to track movement, e-mail and phone communications, a tool that federal officials used in the weeks leading up to Zazi’s arrest.

With the apprehension of Zazi, as well as several other covert operations at home and abroad, the Obama administration is increasingly confident that it has struck a balance between protecting civil liberties, honoring international law and safeguarding the country.

Note, however, that the WaPo focuses on one of the least controversial of the practices, roving wiretaps. Read more →

The Methods Used in the Zazi Investigation

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I’ve been focusing on how Section 215 of the PATRIOT Act may have been used to investigate Najibullah Zazi, but Dina Temple-Raston had a great story yesterday cataloging the range of techniques (though she doesn’t name Section 215 specifically).

Intelligence Tip

I’ve seen a number of vague suggestions for when investigators first focused on Zazi. While she doesn’t describe it as the first thing that made investigators focus on Zazi, Temple-Raston does reveal that Pakistani intelligence gave the US information about Zazi’s actions in Pakistan.

Sources say officials acted after Pakistani intelligence allegedly told them that Zazi had met with al-Qaida operatives there.

From the context, it appears the US may have gotten this tip shortly after Zazi returned to the US in January.

FISA Roving Wiretap

From there, it appears the FBI applied for an got a roving FISA wiretap. Temple-Raston provides a detailed explanation of what a FISA wiretap is, noting that it can be used for emails as well (remember that investigators had identified three email addresses Zazi used).

In his case, officials tell NPR they asked a judge for what’s called a roving FISA wire tap. 

[snip]

Law enforcement officials close to the Zazi case tell NPR that the FBI applied to a special court for the wiretap months ago.

And note, since they already had intelligence from the Pakistanis, it would presumably have been easy to justify a traditional FISA warrant–not to mention establish reasonable cause for any of the other FISA or PATRIOT Act tools in question.

Physical surveillance

After they got contacts from Zazi about developing bombs (perhaps in July or August?), it appears they started tracking Zazi more closely. The FBI followed Zazi all the way from Denver to NY–and staged a drug stop on the George Washington Bridge.

FBI agents followed him on the 27-hour drive. And, just to make sure they tracked Zazi closely, they asked local law enforcement for help along the way. Zazi was pulled over several times for speeding. He apparently got a ticket in Kentucky. And the FBI knew about it.

When Zazi neared New York City on Sept. 10, the New York police pulled him over on the George Washington Bridge. Officials familiar with the case tell NPR that was an orchestrated operation between the FBI and NYPD. They wanted to make sure there weren’t any chemicals or a bomb in Zazi’s car. They told Zazi it was a routine search and, just to underscore the point, pulled over other cars on the bridge as well.

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