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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Evidence The US Bought The Megrahi Conviction

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The case against convicted Lockerbie/Pan Am 103 bombing suspect Abdelbaset Ali Mohmet al-Megrahi was always thin, at best. Despite all the commotion over his trial and conviction, the entire prosecution case was founded upon the testimony of a single clothing shopkeeper from Malta, Tony Gauci, that supposedly sold the clothes that were believed to be in the suitcase containing the bomb that brought down Pan Am Flight 103. Long after the unremarkable alleged sale, Gauci somewhat incredibly remembered selling the clothes to Megrahi. Megrahi has consistently maintained his innocence.

Megrahi’s trial was held in a Scottish court that was constituted in the Netherlands by agreement in order to obtain the extradition of Megrahi for trial. Since the conviction at trial, Megrahi has appealed unsuccessfully, but the Scottish Criminal Cases Review Commission (SCCRC), which investigates possible miscarriages of justice, had taken jurisdiction of the case and referred it back to court for appeal, which is the posture the case was in when the Scottish Justice Ministry cut a deal to release him to his home country of Libya on compassionate grounds (Megrahi has terminal cancer) in return for Megrahi giving up his appeal.

With no appeal available to press his case, Megrahi has taken to releasing material and briefs that were to constitute the foundation of the appeal, and in that regard has opened a website where the material is posted. One of the filings disclosed yesterday on the website documents a blockbuster finding and allegation by the Scottish Criminal Cases Review Commission (SCCRC) on collusion of the Scottish Crown prosecution team and US authorities to effectively buy Shopkeeper Gauci’s testimony against Megrahi by paying Gauci two million dollars and Gauci’s brother, Paul Gauci, a million dollars:

The SCCRC has recovered undisclosed material which indicates that:

(a) The witness Tony Gauci had, at an early stage, expressed an interest in receiving payment or compensation for his co-operation in giving evidence, and that this interest persisted until after the trial

(b) that the witness Paul Gauci had " a clear desire to gain financial benefit" from his and his brothers co-operation and that Paul Gauci exercised considerable influence over his brother

(c) that the U.S. authorities offered to make substantial payments to the witness Tony Gauci from an early stage

(d) that an application for reward monies was made on behalf of the SIO of the investigation team of Read more →

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DiFi’s Invitation to a Fishing Expedition

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fly_fishing_in_southeast_louisiana.thumbnail.jpgAs I noted last night, DiFi appears to have used the Najibullah Zazi investigation as justification to make the language surrounding Section 215 of the PATRIOT Act worse, effectively granting the FBI the ability to collect secret lists of everyone who buys acetone or hydrogen peroxide.

As a reminder, Section 215 gives investigators a way to get business records or other tangible things without telling the people who those business records pertain to that they have done so. I have speculated that the FBI is using Section 215 now to search out people–who may or may not have known ties to alleged Islamic terrorists–who have purchased the precursors of TATP, the explosive that Najibullah Zazi is alleged to have tried to make. Those precursors include things like hydrogen peroxide and acetone, both common ingredients of beauty and home improvement supplies.

Here is the current Section 215 language on targeting (I’ve used bold and strike-through here to show significant changes).

(2) shall include— (A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought 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 international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—

(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; 

Here’s the language that Pat Leahy had originally proposed.

(A) a statement of facts showing that there are reasonable grounds to believe that the records or other things 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 international 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;

Leahy’s language made the burden of proof here tougher, particularly in the case of someone simply "in contact with, or known to" a suspected agent of a foreign power. He took out the "presumptively relevant" language, effectively requiring the FISA Court Judge to determine this information was actually relevant to the investigation.

But here’s what I understand DiFi has changed the language to Read more →

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The Evidence Against Zazi

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As I reported earlier, during the hearing on the reauthorization of the PATRIOT Act today, DiFi said that the investigation against Najibullah Zazi is the biggest investigation since 9/11. She connected changes she had made in the proposed bill’s language about Section 215 Orders (which allow investigators to get any tangible thing from a third party, but which is generally used for business records) with that investigation. I will review the language she’s advocating tomorrow–it is actually worse than the existing language (here’s a good post on DiFi’s changes that’ll give you an idea of where I’m going). But the main point is she’s insisting that investigators be able to use Section 215 even to get information on people with no known tie to terrorism.

In an effort to understand what authorities the FBI is using for this investigation–particularly how it is using Section 215–I thought I’d list all the evidence included in Zazi’s detention motion, along with any comments made about how that evidence was collected. As you can see from the list below, a lot of this investigation relied on information that could be collected via a Section 215 order–particularly the purchase information on Triacetone Triperoxide (TATP) ingredients, but also the hotel records. Perhaps most interesting is the discussion of the three people "associated with Zazi" who bought TATP ingredients bolded in the list below; the source of this evidence is not disclosed.

Details on a August 28, 2008 flight from Newark Airport to Peshawar, Pakistan on Qatar Airlines, evidence collected from Custom and Border Protection

Email account 1, Email account 2, Email account 3

A jpeg of 9 pages of handwritten notes containing instructions on making explosives, including TATP, mailed in December 2008, collected via a "consent search"

Details on a January 15, 2009 flight from Peshawar to JFK on Qatar Airlines

Evidence Zazi transferred and/or accessed the notes on the instructions to make TATP on his laptop in June and July 2009, collected via a "lawfully-authorized search" of the laptop (apparently conducted in September in NY)

Evidence of internet searches for hydrochloric acid in summer 2009 and bookmarks (in two browsers) for a site on "Lab Safety for Hydrochloric Acid," collected via that "lawfully-authorized search" of the laptop 

Evidence Zazi searched "a beauty salon website" for hydrocide and peroxide (the source of this is not specified but it appears in the same paragraph as the discussion of the "lawfully authorized search")

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Buy Beauty Products? You Might Be a Terrorism Suspect.

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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. 

I base that on three details that came out of the Senate Judiciary Hearing on PATRIOT Act Reauthorization.

First, at the start of the hearing, DiFi claimed that the investigation of Najibullah Zazi is the largest terrorism investigation since 9/11. Whether that’s hyperbole or not, she’s claiming that the FBI is doing more in the wake of the Zazi arrest than it did after all those false scares stemming from Bush’s illegal wiretap program, all those false scares arising out of torturing Abu Zubaydah, and all the scares hyped up around election time. She’s claiming this thing is huge.

Second, DiFi and Pat Leahy went through Leahy’s proposed renewal to the PATRIOT Act and made some changes–to make sure that current investigations are not hampered by any changes proposed. Significantly, she appears to have taken out this language (I haven’t been able to get a hold of the substitute amendment yet) which would have required investigators to have some connection between a person and a suspected terrorist before they could collect "tangible information" on them.

(A) a statement of facts showing that there are reasonable grounds to believe that the records or other things 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 international 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; and

That suggests they’re getting business records and whatnot pretty broadly and using them to find targets for further investigation.

Now, of the Dems who are on both SSCI and SJC, DiFi and Whitehouse agreed that putting that language in the bill would hamper ongoing investigations (presumably the Zazi one, given DiFi’s comments), whereas Feingold disagreed that it would.

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DiFi: Zazi Investigation Biggest Since 9/11

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I’m watching the Senate Judiciary Committee hearing on the PATRIOT Reauthorization. DiFi and Pat Leahy apparently revamped the bill last night.

She started by saying that the ongoing investigation into Najibullah Zazi is the biggest domestic terror investigation since 9/11.

An interesting claim…

Updae: And, 10 hours later, I fix the typo in the headline, thanks to Bob in HI.

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Cheney’s Sabotage of Counter-Terrorism

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Just a day after the Brits finally prosecuted some (but not all) of the terrorists who were plotting to blow up planes with liquid explosive, a prosecutor in the case explains how the Americans almost blew the case.

Fearful for the safety of American lives, the US authorities had been getting edgy, seeking reassurance that this was not going to slip through our hands. We moved from having congenial conversations to eyeball-to-eyeball confrontations.

We thought we had managed to persuade them to hold back so we could develop new opportunities and get more evidence to present to the courts. But I was never convinced that they were content with that position. In the end, I strongly suspect that they lost their nerve and had a hand in triggering the arrest in Pakistan.

The arrest hampered our evidence-gathering and placed us in Britain under intolerable pressure.

Now, I’ve been following these accusations since August 2006, shortly after the arrests (which was, it should be said, shortly after Lamont’s primary victory over Joe Lieberman demonstrated how the Iraq War was hurting Bush and the Republicans). But the best explanation of what happened came a year ago from Ron Suskind: 

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. Read more →

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al-Haramain Reply Filed; Constitution & Rule Of Law In Judge Vaughn Walker’s Hands

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images5thumbnail1.thumbnail.jpegIn a spring and summer of noteworthy and important legal cases winding in and out of the national conscience, or at least the conscience of the enlightened readers of this blog, perhaps none have as much weight and significance as al-Haramain v. Obama, pending before Judge Vaughn Walker in the Northern District of California. Subsequent to oral argument set before the court on the morning of September 23, Judge Walker will issue a most critical opinion on Plaintiff al-Haramain’s motion for summary judgment.

We have previously discussed in depth the initial motion for summary judgment by plaintiffs and the timeline for the subsequent briefing thereto.

Today, Plaintiff al-Haramain filed their Reply, the last brief joining the issues and argument on plaintiffs’ motion for summary judgment prior to argument and decision.

At long last, the time has come for this Court to adjudicate the merits of this lawsuit and confirm, in the words of lead defendant Barack H. Obama, that “[w]arrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”

Indeed the time has come, and no less than the sanctity of the Fourth Amendment, Constitutional separation of powers, the continuation of unbridled unitary executive power and the rule of law sits in the hands of Judge Walker. And the plaintiffs’ counsel has teed up the ball quite nicely for him.

On whether the government’s surveillance program was lawful:

Sometimes a litigant’s brief is more significant for what it does not say than for what it says. That is the situation here. After three and one-half years of litigation in which the government has exploited multiple procedural devices to evade an adjudication on the merits, defendants say nothing on the ultimate question now posed for decision: Was the TSP unlawful?
…
Given the present procedural posture of this case, however, that silence has consequences. “[F]ailure of a party to address a claim in an opposition to a motion for summary judgment may constitute a waiver of that claim.” Foster v. City of Fresno, 392 F.Supp.2d 1140, 1146, n. 7 (C.D. Cal. 2005); accord, e,g., Seals v. City of Lancaster, 553 F.Supp.2d 427, 432 (E.D. Pa. 2008) (failure by party opposing summary judgment to address moving party’s claims “constitutes abandonment of those claims”). On this motion for partial summary judgment of liability – where plaintiffs have squarely presented and argued their claims on the merits as to why the TSP was unlawful – defendants’ Read more →

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Thailand Refuses to Extradite Viktor Bout

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While this decision will be immediately appealed, in what was a proxy power fight, Thailand has refused to extradite Viktor Bout to the United States to be tried on charges of trafficking arms to terrorists–Colombia’s FARC.

The DEA maintains that Mr Bout agreed to supply ground-to-air missiles that could have been used to target agency operatives assisting Colombia’s attempts to wipe out cocaine crops.

But on Tuesday the court found in favour of Mr Bout.

“The US charges are not applicable under Thai law,” said the judge delivering the hour-long verdict at Bangkok’s Criminal Court. “This is a political case. The Farc is fighting for a political cause and is not a criminal gang. Thailand does not recognise the Farc as a terrorist group.”

The court “does not have the authority to punish actions done by foreigners against other foreigners in another country”, the judge said.

The FT goes on to describe allegations of attempts, by both the Americans and Russians, to bribe the judges in this case. Who knows the relative truth to that claim? But the decision is interesting because the Thais have thus far refused to follow US bidding in what is undoubtedly an attempt to shut down a horrible arms trafficker (though one we have used in the past), but is also an attempt to shut down a challenge to US influence in developing nations around the world.

And yes, I do find it ironic that Thailand–the country that hosted Abu Zubaydah’s torturers–has refused to accept our representations about who is, and who is not, a terrorist.

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On PDB Day, a New Direction against Terrorism? John Brennan’s Coming Out Party?

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Eight years ago, our President was on vacation, ignoring a Presidential Daily Brief that warned, "Bin Laden Determined to Strike in US." The brush on a pig farm in Texas, you see, was far more  important.

And here we are now, six whole days in to August, and Obama’s just got one week planned on Martha’s Vineyard. How will the brush get cleared? How will the PDBs get ignored?

Obama has chosen today, PDB day, for John Brennan’s coming out party, where Brennan will present Obama’s new direction in counterterrorism. (Spencer will be liveblogging from the talk at the Windy).

There are parts of today’s speech that are welcome. This is a reiteration of Obama’s March renunciation of the War on Terror.

"This is not a ‘war on terror.’ . . . We cannot let the terror prism guide how we’re going to interact and be involved in different parts of the world." 

It’s an embrace of soft power–a real engagement with the rest of the world. (Mind you, Bush tried it, but sent Karen Hughes to do the job.)

Washington must couple the military strikes that have depleted al-Qaeda’s middle ranks with more sustained use of economic, diplomatic and cultural levers to diminish Islamist radicalization, he said, exercising "soft power" in ways that President George W. Bush came to embrace but had trouble carrying out.

 But it also seems to represent the ascendancy of John Brennan, Obama’s holdover from Bush’s War on Terror team.

"His portfolio is growing, not shrinking," said Mark Lippert, a longtime Obama foreign policy aide and now chief of staff for the National Security Council, which is run by Brennan’s boss, national security adviser James L. Jones. Brennan’s role spans terrorism, cybersecurity, swine flu and some intelligence matters. "He has the president’s trust. . . . Folks from all parts of the policy and intelligence community respect him," Lippert said. 

I’m sure John Brennan is very knowledgable and all. But he was also, apparently, intimately involved in the illegal activities of the Bush Administration, particularly Bush’s domestic surveillance program. 

So soft power is all well and good–provided we make a more competent attempt at it than Karen Hughes was able to muster. But will it move beyond the abuse of power Brennan was involved in under Bush?

Spencer has an appropriately skeptical look at this at the Windy:

… it’s on Brennan to explain how this approach is Read more →

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