Oversight Report Says Commerce Dept. Investigative Unit Went Rogue, Engaged In Biased, Retaliatory Investigations

from the power-corrupts dept

Years after it was granted too much power, a federal internal investigations unit created during the presidency of George W. Bush is finally having its dirty laundry aired. The Senate Commerce Committee -- years after the fact -- is finally delivering some oversight of an entity created to root out internal threats.

The ITMS (Investigations and Threat Management Service) operated largely under the radar, thanks to its housing within the Commerce Department -- an entity that very rarely raises too many eyebrows. But its reach extended far past the confines of this department. And it was given broad discretion to initiate investigations -- something that led directly to the Justice Department crafting new rules for espionage investigations after a series of failed prosecutions indicated the intel coming from the ITMS was extremely questionable.

It was the ITMS that initiated the investigation of a US citizen of Chinese descent who did nothing more than share publicly-available information with a Chinese government official -- an official who happened to be a friend of Department of Weather Services employee Sherry Chen. Chen's prosecution was just a leading edge indicator of the ITMS's lack of accountability and incredible amount of power.

The report [PDF] released by the Commerce Committee shows the ITMS wasn't as much interested in rooting out internal threats as it was in rooting out government employees of certain nationalities.

Although many investigations targeted legitimate threats, the ITMS appears to have opened cases on a variety of employees for the purpose of exaggerating the unit’s ability to uncover security risks within the civil service. The unit targeted visible employees across the Department, including award-winning professionals whose background investigations had been successfully adjudicated by other agencies. These probes often resulted in suspended or revoked security clearances, although subsequent reviews largely determined that the unit’s allegations lacked merit. The ITMS also broadly targeted departmental divisions with comparably high proportions of Asian-American employees, ostensibly to counter attempts of espionage by individuals with Chinese ancestry. Former and current ITMS employees became subjects as well for challenging the lawfulness of the unit’s practices.

Saying the unit went rogue isn't hyperbole. It's a fact.

Poor management and weak oversight allowed the ITMS to operate outside the norms of the law enforcement community. Deficient policies and procedures outlining the unit’s investigative capabilities led to repeated instances of malfeasance, including the purposeful prolonging of investigations, unauthorized use of secured messaging systems, and overclassification of documents to protect the unit from external scrutiny.

The first bullet point of the report's "Findings" spells it out explicitly.

Investigating threats against the Secretary of Commerce and the Department’s assets without a clearly defined mission ultimately led to the mutation of the ITMS into a rogue, unaccountable police force across multiple presidential administrations.

The ITMS originally had no power of its own. Its power was derived from the US Marshals Service, which provides protection to the Commerce Department and its "critical assets." It's the last term that caused trouble. Authority to protect "critical assets" allowed the ITMS to abuse the poorly-defined term to open investigations and engage in activities that went beyond its original purview, as well as limits placed on the Marshals Service.

This lack of oversight, accountability, and respect for the Constitution led directly to the DOJ dismissing prosecutions originating from ITMS investigations. ITMS investigators engaged in highly-questionable activities, including concealing their identities, seizing government computers and devices to perform warrantless searches, and picking the locks of government offices and personal storage containers owned by government employees. Whenever these tactics were challenged by government employees, these employees soon found themselves subjected to additional ITMS scrutiny.

Tactics the general public never would have condoned were bought and paid for with tax dollars.

Because of inadequate oversight by the Inspector General’s office, the unit’s improper exercises of law enforcement powers likely resulted in preventable violations of civil liberties and other constitutional rights, as well as a gross abuse of taxpayer funds.

In 2005, the ITMS was limited to protecting tangible assets, like federal facilities. This began to morph as it was given discretion to look for threats to intangible "assets," like "U.S. economic advancement" and "Departmental functions." This then expanded to cover anything the ITMS felt was "inadequately protected." As its purview expanded, the ITMS granted itself plenty of new law enforcement powers, despite receiving no permission or direction to do so from Congress, its apparently-absent oversight, or the US Marshals Service.

Once it had expanded its area of coverage to include whatever it wanted to throw resources and Constitutional violations at, the ITMS began doing things like this:

Without a defined meaning of what constituted a critical asset from the Marshals Service, the ITMS conducted investigations typically reserved for domestic law enforcement agencies. Many were conducted in an overzealous manner whereby agents abused steps in the investigative process. In one instance, the ITMS investigated Sherry Chen, an award-winning, Chinese-born hydrologist employed at the Department, on charges of espionage and providing false statements after she allegedly downloaded and distributed unclassified information to a foreign national. Agents reportedly interrogated her for seven hours and told her she could never discuss the interrogation with anyone, including her superiors. In a lawsuit filed against federal officials, Chen said that ITMS agents “ignored exculpatory evidence throughout the interview, reached false conclusions without even a cursory investigation of underlying facts, and reported false results reflecting their racial and ethnic bias.”

And even when the ITMS couldn't find anything substantial to justify its investigations, it still found something to bring to federal prosecutors.

In one document, ITMS officials described to agents a broad range of offenses for which referrals to federal prosecutors could be made. Substantive offenses included racketeering, money laundering, and theft of government property, espionage, economic espionage, and computer fraud. More commonly, however, ITMS agents sought to charge targets of its criminal investigations with offenses such as obstruction, conspiracy, making false statements to federal agents, and resistance to search.

The ITMS went past believing it was a law enforcement agency with zero accountability to believing it was an intelligence agency with a similar lack of accountability. And, like other law enforcement agencies who believe themselves to be intelligence agencies, the ITMS engaged in "investigations" predicated on little more than last names or native language.

Whistleblowers claim, for example, that agents were directed to run ethnic surnames through secure databases even in the absence of evidence suggesting potential risk to national security, indicating that immutable characteristics served as a pre-text for initiating investigations. Documents show that the ITMS also ran broad keyword searches of email accounts using a broad variety of terms and phrases in Mandarin Chinese, such as “state key laboratory,” “overseas expert consultant,” “Ministry of Science and Technology,” “funding support,” “government support,” and “highly secret.” Multiple whistleblowers claimed that the unit worked with officials at the CIA and FBI to devise the list of search terms and review the results.  

[...]

One former senior Commerce Department official described the indiscriminate targeting of Chinese-Americans as a “fine line between extra scrutiny and xenophobia, and one that ITMS regularly crossed.” This official also discovered a case into a Chinese-American employee at the Department left open for four years without any indication of investigative diligence to close the matter, claiming that the ITMS “targeted her purely because of her ethnic Chinese origin.” The official also believes that ITMS leaders directed agents to “launch the investigation for the purpose of raising the heat so high that she became radioactive and would have to leave the Department,” despite no indication that she presented a national security threat after her emails had been pulled and agents surveilled her on Department premises and at her home.

The ITMS also surveilled US citizens who weren't government employees, opening investigations into people associated with foreign visitors to Commerce Department buildings. And it monitored social media accounts that raised questions about the 2020 Census' accuracy, forwarding all flagged posts to the FBI's Foreign Influence Task Force. Most of the accounts flagged had less than 100 followers. No threats were determined to be credible, and yet the investigations into these accountholders remained open all the way through the end of 2020.

Abuse of power, retaliation, unjustified investigations, violated rights, racial profiling… all of this overseen by no one and tracked solely by an Excel spreadsheet that provided no way for investigators to attach documentation or submit findings. With no internal tracking or external oversight, millions of tax dollars were misspent and resources utilized to engage in fruitless, pointless, or retaliatory investigations. In the end, the ITMS was mainly concerned about sustaining its own existence.

One former senior official even described the network as a “vanity project” designed to showcase an unusual volume of open cases rather than facilitate a user-friendly system for agents to use in processing them. The official said leadership of the ITMS is more interested in appearing productive to retain the ability to investigate a wide variety of purported threats with broad discretion––and continue receiving funding from Congress––than processing cases within an acceptable period of time.

The entire report is harrowing, showing how much damage a government entity can do when its purview is nearly unlimited and its oversight nearly nonexistent. This report will hopefully result in the ITMS being brought into check, but Commerce oversight still needs to explain why it allowed the ITMS to run rogue for more than a decade before it finally decided to step in and do something about it.

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Filed Under: china, commerce department, investigations, itms, senate commerce committee