FBI Routinely Hides Payments To Informants, Gives Them A Cut Of Asset Forfeiture Proceeds

from the I-just-love-America(n-dollars)! dept

The Intercept has obtained another secret document -- this one pertaining to the FBI's confidential informant program. The sprawling web of so-called Confidential Human Sources (CHS) is examined in multiple posts at the site. (The document, unfortunately, consists of multiple photos of the source pages, so it won't be embedded below.)

In addition to things already known about the FBI's aggressive pursuit of informants -- including using the CBP to push incoming foreigners to act as informants by threatening to withhold travel privileges or approval of visa applications -- there's much, much more contained in the FBI's guidelines.

One of the interesting aspects is the government's payment of informants. Considering the FBI has more than 15,000 informants in its network, there's always the possibility evidence produced by CHSs could be challenged if it appears the FBI is using private individuals to bypass warrant requirements (with "private" searches) or otherwise routing around legal restrictions pertaining to its investigations.

From the information obtained, it appears the FBI's inelegant workaround is to obscure the money flow in order to head off questions of propriety.

The picture that emerges is of an approach that borrows some of the sophistication of modern banking. The bureau has devised a variety of ways to pay informants, including directly, before or after trial; via reimbursements; and through a cut of asset forfeitures. The guide provides some options that are clearly preferable when trying to sway a jury at trial, even as it explicitly disclaims selecting them for such reasons.

That doesn't stop informants from making big money. There are some additional levels of approval needed when hitting $100k/$500k per year in payments, but for the most part, money flowing to informants isn't watched that closely by the agency.

As is stated above, the FBI apparently uses bogus expense reimbursements to pay informants, giving it the outward appearance of someone working for the agency out of the goodness of their heart, rather than for the thousands of dollars they eventually receive.

Putting money on the table -- even implicitly -- tends to skew priorities. Additional income is hard to give up, even when there's not much criminal activity to report. As we've seen in other law enforcement agencies heavily-reliant on confidential informants, promise of continuing payments results in bogus reports that exaggerate the amount of criminal activity witnessed and portray non-suspicious activities as worthy of deeper investigation.

Possibly the most perverse incentive is the FBI's asset forfeiture program. The ability to directly profit from seized property gives the agency all the nudge that's needed to worry about seizures first and convictions later, if at all. The documents show the FBI cuts informants in on this government-ordained scam, giving even more people -- none of them trained law enforcement agents -- reason to seek cash, cars, and property, rather than the criminals they're supposed to keeping any eye on.

In addition to compensation, an informant may be eligible for 25 percent of the net value of any property forfeited as a result of the investigation, up to $500,000 per asset, according to the guide. This can be a particularly lucrative benefit for drug informants, whose cases sometimes result in the forfeiture of planes, boats, cars, and real estate.

While the guidelines specifically state the FBI is not allowed to structure its payments to hide their true nature from judges, juries, and criminal defendants, the agency apparently treats this as nothing more than empty words written in service of maintaining plausible deniability.

Craig Monteilh, a bodybuilder who worked undercover as an informant for the FBI by spying on mosques in Southern California, said he received $177,000 from the FBI over a one-year period. Monteilh said that his compensation was disguised as expense reimbursements. He said he provided receipts for everything — rent, car payments, gasoline, medical bills, food, even for the steroids he was taking — to justify an $8,200 monthly expense bill.

“Most informants are criminals. So the FBI gets that,” Monteilh said. “They know that I’m going to get the bill for lunch, even if someone else pays for it, and I’m going to say I paid for it. That includes the movies, the theater, going to an Angels game — everything. I’m paying for everything, even though I’m really not.”

That's only a small part of how the informant game is played by the FBI. Informants are cited as reasons for engaging in dubious investigations and as escape valves for unconstitutional searches. Considering the multiple benefits informants provide -- especially when the true nature of the relationship is obscured and obfuscated -- it's no wonder the FBI wants as many agencies as possible engaged in the business of turning our nation's foreign visitors into junior G-men.

Filed Under: asset forfeiture, fbi, informants, payments

Court Documents Appear To Confirm The FBI Is Using Best Buy Techs To Perform Warrantless Searches For It

from the private-search-loophole dept

As we covered last week, the FBI has apparently been paying Best Buy Geek Squad members in exchange for tips about illegal material discovered on customers' computers. This is problematic for a couple of reasons.

First, adding a financial incentive could lead to Best Buy employees digging around in users' computers in hopes of finding something to turn in, rather than limiting themselves to the job at hand: repairing the device.

Second, while companies are legally obligated to report the discovery of child porn to law enforcement, this occurs as a "private search." As such, it's perfectly legal and can result in the probable cause needed to perform a forensic search of the computer, as well as (possibly) any other electronic devices the customer owns. But when the FBI turns Best Buy employees into confidential informants -- paid or not --it's no longer a private search. It's a third-party search at the government's request. The government can't task private individuals with performing warrantless searches on its behalf -- at least not if it wants to hold onto the evidence.

The government is arguing that there was nothing wrong with the FBI's relationship with Best Buy. This is being argued despite the growing amount of evidence showing the FBI's role in Best Buy searches of computers is anything but passive.

One former agent confirms [PDF] in her declaration that the employee who alerted the FBI to alleged child pornography found on the computer of the defendant in this case, had been signed up by the agency as a “confidential human source” (CHS) in 2009 — two years before the offending content was discovered in this case — but contends that this worker was “never asked” to “search for child pornography or evidence of any other crime on behalf of the FBI.”

However, in a Dec. 19 order [PDF] in this case, the judge notes that emailed communications may hint at a deeper connection between the agency and the Geek Squadder.

For instance, in Oct. 2009, this agent emailed the Best Buy staffer to set up a meeting “to discuss some other ideas for collaboration.” The since-retired agent now says she has no “independent recollection of what ‘collaboration'” refers to in that email, blaming her memory lapse on brain damage caused by Lyme disease.

Whatever the case may be, the documents do seem to show what Mark Rettenmaier, the defendant at the center of this case, alleges they do: a close partnership between the FBI and Best Buy that has gone on for years.

Judge Cormac Carney's ruling on Rettenmaier's demand for document production from the FBI indicates that what he's seen so far (many of the documents handed over by the FBI to date are under seal) points in this direction.

According to the FBI, [Best Buy employee] Meade was a CHS [confidential human source] for two periods of time—October 2008 to January 2009 and November 2009 to November 2012. During the first CHS period, Meade worked with FBI Agent Richard T. Boswell. (See Bates 1123; Dkt. 152 at 6.) Before the second CHS period, Agent Jennifer Cardwell took over for Agent Boswell (Agent Riley took over for Agent Cardwell in July 2010 (Bates 1028)). (Bates 1122–23.) Meade estimates that he contacted the FBI reporting child pornography approximately six to nine times per year. (Bates 544–45.) Though the FBI has had eight different CHS at Best Buy’s Kentucky facility, at the time when Best Buy had Rettenmaier’s hard drive, only Meade and Ratliff were connected to the FBI. (Dkt. 152 at 6.) Both Ratliff and Meade received payment from the FBI; every CHS prior to February 2012 received payment.

The government is refusing to hand over any more information that may shed more light on this relationship, but Judge Carney isn't going to let it get away with it. The government claims any such evidence, if produced, would only "undermine" Rettenmaier's "unsupported argument" about the FBI/Best Buy BFF situation. Judge Carney basically says we won't know until we see it, will we?

The Court cannot determine whether Rettenmaier’s “unsupported” argument has merit as long as the Government refuses to produce the evidence that may support it; the Government’s hope that the evidence will undermine Rettenmaier’s motion does not exempt its production.

The ruling almost completely denies the government's motion to quash, which means that the documents demanded -- if they exist -- will have to be turned over to the defendant. Most will probably be filed under seal, but some are bound to escape the FBI's desire for complete secrecy. What leaks out around the edges will be interesting, and mostly sussed out through defense motions and judicial orders. If the FBI is treating private companies' employees as confidential informants, then it's basically utilizing the private sector to perform warrantless searches for it.

Filed Under: 4th amendment, computer repair, fbi, geek squad, informants, warrantless surveillance
Companies: best buy

The FBI Is Apparently Paying Geek Squad Members To Dig Around In Computers For Evidence Of Criminal Activity

from the maybe-these-are-the-'smart-people'-who-can-fix-Comey's-encryption-&# dept

Law enforcement has a number of informants working for it and the companies that already pay their paychecks, like UPS, for example. It also has a number of government employees working for the TSA, keeping their eyes peeled for "suspicious" amounts of cash it can swoop in and seize.

Unsurprisingly, the FBI also has a number of paid informants. Some of these informants apparently work at Best Buy -- Geek Squad by day, government informants by… well, also by day.

According to court records, Geek Squad technician John "Trey" Westphal, an FBI informant, reported he accidentally located on Rettenmaier's computer an image of "a fully nude, white prepubescent female on her hands and knees on a bed, with a brown choker-type collar around her neck." Westphal notified his boss, Justin Meade, also an FBI informant, who alerted colleague Randall Ratliff, another FBI informant at Best Buy, as well as the FBI. Claiming the image met the definition of child pornography and was tied to a series of illicit pictures known as the "Jenny" shots, agent Tracey Riley seized the hard drive.

Not necessarily a problem, considering companies performing computer/electronic device repair are legally required to report discovered child porn to law enforcement. The difference here is the paycheck. This Geek Squad member had been paid $500 for digging around in customers' computers and reporting his findings to the FBI. That changes the motivation from legal obligation to a chance to earn extra cash by digging around in files not essential to the repair work at hand.

More of a problem is the FBI's tactics. While it possibly could have simply pointed to the legal obligation Best Buy has to report discovered child porn, it proactively destroyed this argument by apparently trying to cover up the origin of its investigation, as well as a couple of warrantless searches.

Setting aside the issue of whether the search of Rettenmaier's computer constituted an illegal search by private individuals acting as government agents, the FBI undertook a series of dishonest measures in hopes of building a case, according to James D. Riddet, Rettenmaier's San Clemente-based defense attorney. Riddet says agents conducted two additional searches of the computer without obtaining necessary warrants, lied to trick a federal magistrate judge into authorizing a search warrant, then tried to cover up their misdeeds by initially hiding records.

The "private search" issue is mentioned briefly in OC Weekly's report, but should be examined more closely. Private searches are acceptable, but the introduction of cash payments, as well as the FBI having an official liaison with Best Buy suggests the searches aren't really "private." Instead, the FBI appears to be using private searches to route around warrant requirements. That's not permissible and even the FBI's belief that going after the "worst of worst" isn't going to be enough to salvage these warrantless searches.

As Andrew Fleischman points out at Fault Lines, the government's spin on the paid "private search" issue -- that it's "wild speculation" the Best Buy employee was acting as a paid informant when he discovered the child porn -- doesn't hold up if the situation is reversed. AUSA Anthony Brown's defensive statement is nothing more than the noise of a double standard being erected.

Flipping the script for a minute, would an AUSA say it was “wild speculation” that a man was a drug dealer when phone records showed he regularly contacted a distributor, he was listed as a drug dealer in a special book of drug dealers, and he had received $500.00 for drugs? Sorry to break it to you, Mr. Brown, but once you start getting paid for something, it’s tough to argue you’re just doing it for the love of the game.

In addition to these problems, the file discovered by the Best Buy tech was in unallocated space… something that points to almost nothing, legally-speaking.

[I]n Rettenmaier's case, the alleged "Jenny" image was found on unallocated "trash" space, meaning it could only be retrieved by "carving" with costly, highly sophisticated forensics tools. In other words, it's arguable a computer's owner wouldn't know of its existence. (For example, malware can secretly implant files.) Worse for the FBI, a federal appellate court unequivocally declared in February 2011 (USA v. Andrew Flyer) that pictures found on unallocated space did not constitute knowing possession because it is impossible to determine when, why or who downloaded them.

This important detail was apparently glossed over in the FBI's warrant application to search Rettenmaier's home and personal devices.

In hopes of overcoming this obstacle, they performed a sleight-of-hand maneuver, according to Riddet. The agents simply didn't alert Judge Marc Goldman that the image in question had been buried in unallocated space and, thus, secured deceitful authorization for a February 2012 raid on Rettenmaier's Laguna Niguel residence.

Courts have shown an often-excessive amount of empathy for the government's "outrageous" behavior when pursuing criminals. The fact that there's child porn involved budges the needle in the government's direction, but the obstacles the FBI has placed in its own way through its deceptive behavior may prevent it from salvaging this case.

The case is already on very shaky ground, with the presiding judge questioning agents' "odd memory losses," noting several discrepancies between the FBI's reports and its testimony, and its "perplexing" opposition to turning over documents the defense has requested.

In any event, it appears the FBI has a vast network of informants -- paid or otherwise -- working for both private companies and the federal government. Considering the FBI is already the beneficiary of legal reporting requirements, this move seems ill-advised. It jeopardizes the legitimacy of the evidence, even before the FBI engages in the sort of self-sabotaging acts it appears to have done here.

Underneath it all is the perplexing and disturbing aversion to adhering to the Fourth Amendment we've seen time and time again from law enforcement agencies, both at local and federal levels. Anything that can be done to avoid seeking a warrant, and anything that creates an obfuscatory paper trail, is deployed to make sure the accused faces an even more uphill battle once they arrive in court.

Filed Under: fbi, geek squad, informants, searches, warrants
Companies: best buy

FBI, CBP Join Forces To Turn Airports Into Informant Recruiting Centers

from the which-do-you-prefer?-a.)-spying-for-us-or-b.)-being-arrested? dept

The FBI and CBP have been using the nation's borders as recruiting stations for informants. This phrasing makes it sound a lot more voluntary than it actually is. The Intercept has obtained documents showing how these two agencies work together to pressure foreign visitors into basically becoming spies for the United States.

The FBI gives CBP a list of countries of origin to watch out for among passengers, sometimes specifying other characteristics, such as travel history or age. It also briefs CPB officers on its intelligence requirements. The CBP sifts through its data to provide the bureau with a list of incoming travelers of potential interest. The FBI can then ask CBP to flag people for extra screening, questioning, and follow-up visits. According to the documents, the FBI uses the border questioning as a pretext to approach people it wants to turn informant and inserts itself into the immigration process by instructing agents on how to offer an “immigration relief dangle.”

These documents confirm what was alleged in a lawsuit filed by Rahinah Ibrahim two years ago. Her filing pointed out that the FBI has used threats in the past to secure cooperation, like revoking traveling privileges or trying to prosecute immigrants for minor crimes. Ibrahim's lawsuit had another allegation: the secret "no fly" list is also being used as a coercive tool, with agents threatening to add travelers' names to the list if they refused to go to work as informants.

The documents obtained here note that the joint recruiting efforts have expanded far past the nation's border. Some form exists in every airport in the nation. Travel to and from certain countries is flagged for extra scrutiny. The CBP collects extensive data on everything crossing US borders -- people or products -- and turns this over to the FBI with any potential targets pre-flagged. It also provides the FBI with a list of passengers expected to arrive from "countries of interest" at the nation's airports within the next 72 hours.

The CBP is supposedly in the border-securing business and the FBI in the law enforcement business, but these directives turn them both into intelligence agencies. This has made both agencies far more interested in recruitment and data harvesting than their original directives. The documents show that the CBP tends to grab the most data, starting with basic traveler information. There is no predetermined endpoint to the CBP's investigative work. Secondary screenings at borders could run from a few minutes to several hours, depending on how much the CBP wants to harvest.

The CBP materials indicate that as part of secondary inspections, CBP can search “pocket litter,” documents, and cellphones. The April 2012 presentation promises a “full cell dump, including #s, text messages, pictures, etc.” at certain airports.

Everything is passed on to the Joint Terrorism Task Force, which then starts the uglier work of pushing certain travelers into becoming informants, using both carrots, sticks and, in some cases, visits to their homes. Immigration revocation threats are common. So is the promise of benefits. But in both cases, the FBI -- working with CBP info -- is using motivations it can't actually offer or revoke.

When potential informants are not U.S. citizens, they may be particularly vulnerable to pressure from the FBI. Indeed, the bureau is counting on people thinking that FBI involvement in immigration decisions is normal, the documents indicate. In reality, FBI agents are expressly forbidden from promising immigration benefits to potential informants or threatening deportation.

The agency apparently believes deceiving foreign citizens during the recruitment process causes zero damage.

“If subject is deemed ‘recruitable,’” the slides state, then a “series of overt interviews set into motion.” If the person is “not recruitable,” then “NO HARM. Subject believes that the interview is part of the immigration process.”

This is why these recruitment efforts work. The FBI is counting on the ignorance of visiting travelers to help it turn visitors into informants. A suspicionless detention in which several invasive questions are asked is considered to be "no harm," and the FBI will just move on to the next suggestion from CBP. And even if they think this might have been out of the ordinary, what are they going to do? Complain to another person in uniform and hope that the implied threats of deportation are bogus?

Filed Under: airports, cbp, fbi, informants, recruiting, tsa

Report: DEA Blowing Money On Liars, Thieves, And Amtrak Employees

from the nothing-like-spending-other-people's-money dept

If the Drug War is US law enforcement's wildly-swinging fist, the DEA is its middle finger. Once the pointless brutality stops, the finger is extended to everyone -- especially taxpayers.

Even the agency's name inadvertently belies its twisted motivations: "Drug Enforcement Administration." Without further information, the name, on its own, seems to suggest a shoring up of the drug trade, rather than an adversarial force.

The DEA has a lot of skin in the drug game. Without the steady flow of drugs, it ceases to exist. It operates with a great deal of autonomy and is often excused its worst excesses because most people agree (without much thought) that drugs are bad.

The DEA controls a vast network of confidential informants. Actually, to state it more accurately, the DEA oversees… Never mind. The DEA pays a great deal of money to confidential informants. Beyond handing out cash, the DEA apparently does little else to keep its informants in line.

A just-released Inspector General's report [PDF] on the DEA's use of confidential informants finds the agency has no problem paying out vast sums of money to lying informants and that it maintains a small army of otherwise-employed citizens who moonlight as cash/drug-sniffing humans for the nation's top drug warriors.

This year's report builds on the lowlights of last year's examination of the DEA's informant program, in which the OIG basically stated the entire program runs without sufficient oversight. Nothing has changed in the interim. This report includes even more details of excess, abuse, and stupidity.

Fun fact: lying to prosecutors, judges, and the DEA itself isn't enough to prevent the agency from giving an informant even more chances to lie -- all the while being paid handsomely for making stuff up.

[W]hile DEA policy prohibits paying deactivated sources who were deactivated because of an arrest warrant or for committing a serious offense, we found two concerning instances of payments to previously-deactivated sources. In one case, the DEA reactivated a confidential source who previously provided false testimony in trials and depositions. During the approximate 5-year period of reactivation, this source was used by 13 DEA field offices and paid $469,158. More than $61,000 of the $469,158 was paid after this source was once again deactivated for making false statements to a prosecutor.

That's just one case. There are many more. The OIG notes that $9.4 million in tax dollars was shelled out to deactivated informants, suggesting that not working for the DEA is a great way to make a living.

Then there's the so-called "limited use" informants. These are Amtrak, airline, and parcel service employees the DEA pays to keep any eye out for cash and drugs. Lots of money is misspent here with even less oversight than goes into the paying-people-for-doing-nothing program.

Another area of concern is the DEA’s oversight of confidential sources it categorized as “Limited Use,” often referred to as “tipsters,” which DEA policy specifies are sources who make information available independently without direction by the DEA. The Limited Use category is regarded by the DEA as low-risk and therefore DEA policy requires the least supervision. Yet we found that Limited Use sources were some of DEA’s highest paid sources, with 477 Limited Use sources during the period of our review having received an estimated $26.8 million.

[...]

Some of these sources received significant payments for their assistance, including an airline employee who received more than $600,000 in less than 4 years, and a parcel employee who received over $1 million in 5 years.

Unsurprisingly, the DEA is very interested in cash, despite its supposed drug focus. Consequently, "limited use" informants need a bit more hands-on treatment to keep them zeroed in on seizable currency. As the OIG points out, the extra attention paid to handling "limited use" informants makes them no longer "limited use" -- and therefore supposedly subject to stricter oversight. Not that this happened either.

We believe that DEA Agents directed the actions of these sources extensively enough that they could not reasonably be understood to have acted “without direction” and therefore do not fit the definition or purpose of “Limited Use.”

[...]

We also found the DEA did not appropriately track all confidential source activity; did not document proper justifications for all source payments; and, at times, did not adequately safeguard traveler information.

The DEA is given billions of dollars to work with every year. Some of this goes to its informants, some of which are very unreliable. Apparently none of the budget goes towards recordkeeping.

Because DEA’s files do not detail the universe of information provided by its sources, it is unable to examine their reliability and whether they frequently or rarely provide useful information, or whether the information DEA agents acted upon resulted in identifying individuals involved in illegal activity or instead caused DEA to regularly approach innocent civilians for questioning. We are deeply concerned about this inability to assess source reliability, which seriously impairs DEA’s ability to oversee and manage the activity of these sources and the Confidential Source Program overall.

As if its lying informants weren't troublesome enough, the DEA also gave informants free reign to act as contractors and "hire" their own informants to work underneath them. Unlike other Ponzi schemes, the sucker here is at the top of the pyramid, rather than the bottom.

Additionally, we were extremely concerned to discover the DEA condoned its confidential sources’ use of “sub-sources,” who are individuals a source recruits and pays to perform activities or provide information related to the source’s work for the DEA. During our review of DEA files, we found evidence of sources who were paid based, in part, on the need to pay “sub-sources,” but the information in the files was insufficient to allow us to determine the full extent of such payments.

As for the lying, the DEA seems completely unconcerned that it may be doing little more than funding a network of bullshit artists.

[T]he DEA does not independently validate the credibility of sources used for intelligence programs or the accuracy of the information they provide…

And the DEA spends money like any entity blessed with piles of unearned cash.

Additionally, when we asked the DEA Intelligence Division to provide us with an itemized list and overall total of payments to intelligence-related confidential sources, it was unable to do so. We reviewed DEA records and estimated that, during the 5-year period of our review, the Intelligence Division paid more than $30 million to sources who provided narcotics-related intelligence and contributed to law enforcement operations, $25 million of which went to just 9 sources. Additionally, we identified one source who was paid over $30 million during a 30-year period, some of it in cash payments of more than $400,000. We concluded the Intelligence Division’s management and oversight of its sources was not commensurate with the large amount of payments it made to them.

The entire report is an indictment of the DEA's willingness to throw good money after bad, and its unwillingness to perform even the most perfunctory of oversight. The joke, of course, is that the report will not result in any indictments, even if the behavior detailed borders on fraudulent.

Filed Under: dea, informants, liars, money, thieves

Judge Upholds UPS Employee/Paid Informant's Search Of An Intercepted Package

from the can't-challenge-what-you've-taken-steps-to-distance-from-yourself dept

Maybe this is part of UPS's large settlement with the DOJ. Maybe this is what FedEx won't do, which is why the DOJ tried to prosecute it for aiding and abetting illicit drug sales, right up until a federal judge called its prosecution "novel" and ushered it out of the court.

Whatever the case, there's at least one "inside man" (in this case a woman) at the UPS. A San Bernardino UPS store owner acted as a "citizen informant" for the county sheriff. In exchange for unspecified "compensation," the store owner would flag suspicious packages and call in the Sheriff's Department to come in and have a look/sniff at said shipments.

All well and good, if that's the sort of service you expect from a private company, rather than, say, the US Postal Service, which presumably does this sort of thing all the time. The Sheriff's Department, however, did instruct the store owner that she was not to open any suspicious packages.

So much for that. From the suppression order [PDF] (via Brad Heath):

On May 27, 2014, the UPS store owner contacted Officer Kristina Winegar, a deputy assigned to the narcotics division/parcel interdiction team in the Sheriff’s Department in the County of San Bernardino, California, about a “suspicious package.” The UPS store owner told the deputy that a black male entered the UPS store and paid $90 to have the package shipped to Houma, Louisiana. According to the deputy’s police report, “[d]ue to the [cost of shipping the package] and suspicious behavior of the suspect,” the store owner opened the package and found a container wrapped in cellophane. The store owner smelled a chemical order and resealed the box. The sender of the package, who provided the UPS store with the name “Sam Niel” and a Louisiana phone number, listed “John Lirette” in Houma as the recipient. The shipper used the UPS store address as the return address for the package.

You can't undo a package opening, even with access to official UPS box-sealing tape -- not under the Fourth Amendment. That's what led to this suppression hearing. The sheriff's department showed up and discovered that no "Sam Niel" existed in its criminal record database. It grabbed a dog to sniff the package. The dog alerted. Finally, a warrant was obtained to search the contents of the box that had already sort of been searched by a UPS employee on the Sheriff Department's payroll. This search led to a "controlled delivery" to the address on the box. That residence was also searched.

"Sam Niel," whose given name is actually Phillips Thompson, moved to suppress the evidence as the result of an illegal search. He might have had a point, too. A paid "citizen informant" working for the government and performing "private searches" (against instructions) is very different than non-government employees doing the same thing. The Geek Squad member who comes across child porn while repairing a computer performs a private search, and that's perfectly legal and constitutional.

The government is generally discouraged from availing itself of private searches, especially when it's paying someone at a private company to act on its behalf. So, interesting questions might have been raised, if not for the use of an "alias."

"Sam Niel" does not exist, therefore Phillips Thompson cannot challenge the search. It's a form of disavowal and the courts will not let someone make two incompatible claims:

1. That's not my stuff.

2. The search of that stuff was unconstitutional.

Suppression denied. But that ruling doesn't eliminate another interesting, but mostly unexplored, aspect of this decision. As Scott Greenfield points out, what the government refers to as an "alias," and ties solely to criminal activity, could be something far more innocuous.

Notice that it’s called an “alias” here, whereas it might be called a pseudonym if he used the name “Sam Niel” in a comment to this post telling me that I’m a dumbass. The distinction is that an alias is what’s used to conceal an identity to commit a crime, while a ‘nym is a time-honored, First Amendment protected, effort at quasi-anonymity.

But the government’s argument raises troubling issues. While a person’s intention to conceal his identity may be protected anonymity, should the government allege that its use related to crime, it would, by the government’s argument, morph into an alias, designed to distance the person from the offense. And further by the government’s argument, deprive a person of their right to challenge evidence based on this notion that he “forfeited any objectively reasonable expectation of privacy.”

As we're well aware, the US Postal Service scans every package and envelope and makes this available to law enforcement agencies on request (no warrant required). Maybe you feel the government doesn't really need to know who is sending communications back and forth, just the destination. You use fake names to throw off this tracking or just to dump some garbage data into the bulk collection. There's nothing illegal about it, but the government has determined that -- should one of these packages be searched -- you cannot challenge the search because you've used an "alias." Whatever bit of privacy you've tried to take back by using a pseudonym has only served to prevent you from challenging inspection of the communications content.

To put it another way, most people's email addresses aren't reflective of their real names. NSLs and subpoenas can grab to/from data but not the content. If the government treats email addresses as "aliases," the contents of communications are quickly painted as somehow criminal and it could argue the fake "name" contained in the email address is nothing more than the sender trying to distance themselves from what's contained in the messages. So much for suppression.

Of course, many email addresses are tied to actual people and that identifying info can be obtained from the service provider. But what about throwaway accounts containing nothing linking them to an actual person? There may be no criminal activity but it would be extremely difficult to challenge a search of email contents if someone has made an effort to distance the communications from themself and/or the other parts of their online identity. Pseudonymous speech is apparently protected by the First Amendment. Not so much by the Fourth.

Filed Under: 4th amendment, doj, informants, paid informants, searches, ups
Companies: fedex, ups

Sheriff's Department Swears Informants Are Trustworthy, Reliable Despite Entirely Random ID Number Scheme

from the this-guy's-a-good-guy-whoever-the-hell-he-is dept

Cops don't believe much of what criminals say -- even those who are still just "suspects" or "persons of interest." They'll say anything they can to stay out of jail. Perps are liars. Except when they're not.

When these perps become confidential informants, they're suddenly considered George Washington of the underworld -- paragons of truth and reliability. Affidavits and courtroom statements play up their honesty and integrity in a way only cops can: "CI-22 made several controlled purchases and said he saw weapons in the house." "CI-4130 has worked closely with Drug Interdiction over the past three years, leading to multiple arrests." And so on.

Confidential informants are given numbers rather than names to ensure those they've helped arrest don't come after them when they're released. A CI's "pedigree" is provided to magistrates in warrant applications and presented to trial judges as evidence of the informant's trustworthiness. All of these are sworn statements -- statements that rely on the confidential informant being not only who the officer says he/she is, but that this CI has proven trustworthy in the past. But all the courts -- and the defense -- see is a number.

In the [Richard] Graf affidavit, [Somerset Sheriff's Deputy Carl] Gottardi attested he had probable cause to believe Graf was hiding marijuana and other drug accoutrements in his home, based on information Gottardi received from a confidential informant called "11-25." 11-25 "ha[d] been a very reliable informant . . . for the past several years," and had helped "obtain[] numerous drug search warrants, . . . with numerous persons being charged and convicted of various . . . drug offenses," Gottardi swore. 11-25 had "also provided other law enforcement officials with reliable drug related information in the past." Specific to this case, Gottardi also wrote in the affidavit that 11-25 relayed his personal knowledge that "for several years [] Graf has continually sold large amounts of marijuana," describing the location of the "camp type residence" where Graf sold his "high grade, commercial type" stuff.

Relying on Gottardi's affidavit, a state Justice of the Peace signed off on the warrant, and during the search of Graf's home, police found marijuana plants and an unregistered short-barreled shotgun. Not surprisingly, Graf was indicted on federal firearms possession and drug charges.

CI 11-25: useful, honest and reliable. The sworn statements say "You can trust CI 11-25. He's never steered us wrong." Except that CI 11-25 could be literally anyone.

When Graf challenged these CI statements, he uncovered something that indicated the numbering system was worthless, and by extension, so was every sworn statement averring to the reliability of CI 11-25. Because there was no single "CI 11-25."

[H]is new lawyer decided to get to the bottom of things himself by digging up all the warrant applications filed by the Somerset County Sheriff's Department from April 2009 through April 2012 and searching for all references to "11-25." Turns out, there were none, that is, no warrant applications filed prior to April 2011 (which was when Gottardi got the warrant to search Graf's home) naming "11-25" as an informant. "11-25" did appear, however, in two of the warrant applications filed after Graf's, but in each of the three affidavits where "11- 25" was mentioned, the informant's background and history as a tipster were described a little differently.

It gets worse. The government's response completely undermined any previous claims of reliability -- not just for CI 11-25 -- but for any CI it had used to obtain warrants in the past.

The government fired off an explanation, though, and in support of its opposition to the motion, submitted a supplemental affidavit from Gottardi describing his "practice to periodically change the identifying numbers assigned to confidential informants." Gottardi also claimed that "the person designated CI 11-25 in the Graf search warrant has been assigned four identifying numbers during the course of" his work with Gottardi. In addition, "[o]ccasionally, identifying numbers will be re-used for different persons," Gottardi swore.

Graf shot back with the obvious: if the numbers have no underlying structure and are applied to any number of confidential informants, there's no way to verify the veracity of the officers' assertions on warrant requests. Just because one CI 11-25 was useful and honest doesn't mean the CI 11-25 in Graf's case was. CI 11-25 is no one. CI 11-25 is everyone. Sworn statements linking back to a group of informants all periodically using the same identifying number are what laypeople call "lies." It may not have seemed like a lie when the warrant application was filled out, but Graf's research shows that the CI 11-25 who helped generate probable cause either wasn't the person sporting the number when the warrant was obtained, or wasn't as reliable as the swearing officer portrayed him or her.

Gottardi's unconventional practice, Graf urged, "is meant to enhance the credibility of the [informant] whose number repeatedly appeared before the same [reviewing official], even though, according to Gottardi, they are different people."

The lower court was similarly nonplussed.

The court noted that "assigning the same numerical identifier to three different confidential informants within a relatively brief timespan" was a "surprising revelation about what seems . . . a highly irregular, ill-advised, and potentially misleading procedure."

Unfortunately, the judge chose to turn examination of this system and the randomly-numbered CI over to the ATF. The ATF looked it over and declared everything to be perfectly normal and CI 11-25 (who wasn't CI 11-25 at the time the warrants were obtained) just as honest and trustworthy as Gottardi had portrayed him in warrant applications. Graf's attempt to suppress the evidence was shut down.

The appeals court similarly found that the discrepancies between described informants -- combined with the "irregular" numbering system -- wasn't enough to call for the suppression of evidence. The leeway given to law enforcement by courts again makes an appearance, as even a numbering "system" that completely undercuts the alleged "pedigrees" of Gottardi's confidential informants isn't enough to show that he deliberately misled the magistrate when seeking warrants.

As we have acknowledged in the past, making a substantial preliminary showing is no easy feat, particularly when law enforcement relies on tips from unnamed confidential informants. See United States v. Higgins, 995 F.2d 1, 3 (1st Cir. 1993) ("When the government obtains a search warrant based on information provided by a confidential informant, defendants often lack the information required to meet the exacting standards of Franks."). Graf, like many other defendants in the same boat, has simply failed to meet his burden of making a substantial preliminary showing -- particularly under the deferential clear error standard of review we afford to a court's denial of a Franks hearing.

Second-hand statements that can't even be attributed to a fixed number are still trustworthy enough to secure search warrants, apparently. And the courts will back up this irresponsible (to say the least…) behavior because just writing down whatever identification number comes to mind in the affidavit isn't considered too misleading. This numbering system could be deployed to cover up all sorts of unconstitutional activity -- like warrantless searches, Stingray use, intercepted communications, etc. In each case, the fruits of these searches could be attributed to statements made by an unverifiable confidential informant. Even better, the informant never need exist. Cops could approach magistrates with supporting statements from CI-whatever because there's absolutely no way to establish the CI's existence, much less his or her "pedigree."

Yes, a coherent and consistent numbering system would slightly increase the chances of the CI being identified, but it also provides a modicum of proof that this person exists, rather than just being a string of numbers entirely unrelated to any singular person.

Filed Under: carl gottardi, confidential informants, false history, informants, misleading, police, richard graf, somerset police, somerset sheriff's department

How The US Gov't Destroyed The Lives Of A Muslim American Man's Entire Family After He Refused To Become An Informant

from the disgusting dept

We recently wrote about a new lawsuit from some Muslim men, suing the US government after they were all placed on the no-fly list for refusing to become informants. Some of the stories were ridiculous, displaying just how aggressive and coercive the FBI has been in trying to force totally innocent people into becoming informants, even when they lack any actual connection to any terrorists or terrorist organizations. But those disgusting stories pale in comparison to a story reported by Nick Baumann at Mother Jones, in which it becomes quite clear that the US government wrecked the lives of multiple family members (mostly US citizens) after one American muslim man refused to become an informant.

You should read the full story of how it all came about, but through a series of events, the FBI came into contact with Naji Mansour, after his (perhaps naive) abundant display of hospitality resulted in two men associated with terror staying in his mother's house in Nairobi. His mother, an American woman from Rhode Island, worked for the US government (as a part of USAID). Eventually, the FBI appears to have realized that Naji had no real connection to the two men, but then they focused on doing everything possible to force him to become an informant. And when he refused, they basically set about to wreck his life, and then his family's lives. After refusing to become an informant, the family suddenly found it difficult to travel:

...the Mansour family headed to the Nairobi airport to fly to Uganda for a visit with Naji's ex-wife and their children. When Naji handed his passport to a security officer, she glanced at her computer screen, stared at him, and asked, "What did you do?" Kenyan security officers detained the family for several hours, releasing them just before their flight took off.

When the family returned five days later, Kenyan airport police questioned Naji again. "The deputy immigration officer said, 'We have nothing wrong with you, but we have a directive not to let you in,'" Naji recalled. Soon, Fogarty and Jones showed up at the airport. The FBI agent reiterated the US government's desire that Naji become an informant. Naji once again declined.

Another time, his mother stopped by the US Embassy in Kenya to add more pages to her passport -- only to have her passport seized. She was told it would only be returned if she met with the FBI agent who had been pushing to turn Naji into an informant. He asked her where Naji had moved to, because they had apparently lost track of him. The very next day, Naji, who had moved to Sudan, and his wife found themselves detained by Sudanese law enforcement:

So on Monday, June 29, Sandra sat down with FBI agent Mike Jones. "He asked, 'Where's Naji now?'" she recalled. "I said, 'He's with me in Juba.'"

The next morning, June 30, Naji and Nasreen—who had come to visit her husband in Juba while Sandra was in Nairobi looking after their children—were about to go out for breakfast when they noticed a man peering through the window. Naji opened the door to find two men in suits, sweating in the heat, with guns on their hips. "One of them looked like African James Bond," Naji told me. "And I say, 'Yes, hello?' And they're like, 'Naji Mansour?' and I'm like, 'Yes.' And they just came in." The agents of the South Sudan Security Bureau asked Naji to bring Nasreen out, and then they took the couple's phones and laptops and hustled them into separate unmarked cars.

His wife was detained for over a week -- never charged with anything and then finally released. Naji was held for over a month. In the middle of his detention, a US State Department official suddenly showed up and told him he should meet with the same FBI agent, Mike Jones, who had been trying to recruit him as an informant. When Naji agreed, Jones immediately walked in with another FBI agent. They demanded some "useful info" to help him get released. He tried to come up with any information he could think of, but the agents told him it was not enough, and then said "All right, Naji, good luck... I hope everything works out for you, buddy" and left.

After a month he was released. No explanation, no charges. A few months later, Jones asked to meet again, and Naji said he wanted to talk by phone first, leading to some calls that Naji recorded, in which Jones appears to directly threaten Naji's family while denying having anything to do with his detention. There's a lot in there (you can read the transcript at the link above), but it becomes clear that they're dragging his mother into this towards the end of the conversations:

Mike Jones [FBI]: As I said, Naji, you know, there's scrutiny on you, and that's not going to go away. There's scrutiny on your mom, she's a contractor with the embassy, that's not going to go away unless we sit down and get down to business. You don't want to come into the embassy, for good– you say for good reason, but meanwhile your mom is employed at the US consulate. So for you to say as an American, "I don't want to go into the embassy to meet with you, and there's a good reason for that." It's just, to us, it should have been done there. We did you a favor by agreeing to do it outside of the embassy, here, in this city. So, you know, Naji, there's really just not more I can say right now.

Naji Mansour: I'm even trying to decipher what you're trying to say right now.

MJ: What I'm trying to say is, you don't want to come into the embassy to do it. Fine. You know, I- we said we'd do it outside of the embassy. This isn't a, meeting hasn't been a priority to you. In fact, you haven't wanted to sit with us, since we've talked, since I've been back in country. Okay. You say you want to get things resolved. I say there's scrutiny on you. There's scrutiny on your mom. She's employed by the consulate, and yet you don't want, or she's employed at the consulate, through a contractor, and you're saying you don't want to come to the embassy, and there's a good reason for that. So I said meet us.

NM: Exactly. My position hasn’t changed. My position hasn't changed. The scrutiny on my mother has nothing to do with anything, unless you you're making a threat. And currently I told you the situation here, [Mike], that in this country I'm kind of like, have you heard of the expression that beggars are not choosers? I'm on contract. I'm on contract, so I'm not giving you any illegitimate excuse. While you're here, I've bent over backwards. And I really don't like your tone. I don't like your tone, [Mike]. I don't like your tone.

MJ: Naji–

NM: You have scrutiny on me for what? What do you have on me? You have nothing on me. I've done nothing. You cannot tell me…

MJ: Then let's sit down and talk about it.

Later in the call, Jones hands the phone over to another FBI agent (who also showed up in the Sudanese prison earlier), Peter Stone (a pseudonym), and Stone is much more direct about the threat:

PS: A series of events is going to be put into motion. And once you put it into motion, and honestly I, I'm out of it. I honestly do not care. I'm going home, you know I got a vacation to plan, I got this [inaudible] other kinda stuff, my life goes on. Yours might change. And it's not going, it might not be necessarily to your liking. But, this is what's going on, but the whole dodging, you're telling, oh, no, this time, that time, all that kind of stuff, frankly I don't believe it. And again, I really don't care. I'm getting ready to pack my bags and go. But when I go, when [Mike] goes, you know, that door closed on ya. A new chapter will open up for ya, and it's going to be a new chapter of your life, but you’re going to remember that this was the day where I could walked through that door, and ya didn't. But that's all I'm going to say, and I'm going to give you back to [Mike], and…

NM: No wait, hold up [Peter], you can't just…

PS: ...and you guys can say nah nah nah nah…

[crosstalk]

NM: That's a blatant threat, and you're going to put in your report that I, how are you? [crosstalk] That I don’t have an excuse to come, when I'm trying to frickin accommodate.

PS: Dude, dude, dude, no let me tell ya, I was not born yesterday. I haven't been doing this job since yesterday, okay? I know when somebody is yanking my chain. Okay? And I'm seeing...

NM: This ain't the states! This ain't the states!

PS: ... a major chain yank. Okay, this is not the first time, believe me. I've dealt with guys who've done that, and all that kind of stuff, and I've just learned, you know I've got a callus built up. I walk away. And then, whatever happens then, honestly, all I know is I can sleep at night knowing that every opportunity was given, you know, the guy decided not. I've helped people out, on the opposite side, people have been helped out tremendously, and that's something that I'm very proud of. People that were in deep shit, who are no longer in shit, and are living a good live, because I was there for them, and they took that door, they took the opportunity and walked through that door, man. And seriously, honestly, it's the same thing that's available to you. But again, you will remember this day, and you're gonna say, "Shit, I shoulda talked to these guys. And I shouldn't have been doing all excuses." If you didn't have any business going on today, or any kind of a things like that, you're gonna find how minuscule and worthless it was compared to this fork in the road, that you're about to take.

NM: What are you talking about? No, why don’t you come out and say it? Why'n't you come out and say what fork in the road are you talking about?

PS: Dude, I honestly don't care. I'm getting out of here. I don't care. Okay? And, you know, when I tell somebody, hey, you know what, if you cross the street without looking you're gonna get run over, that's not a threat. You know, that's advice. [crosstalk] You're about to cross the street without looking both ways...

NM: No.

PS: And I'm telling you, you know what You might get hit by a car—that is not a threat. That is a solid piece of advice. But you don't want to take it. But seriously I'm done, here's [Mike].

It's not too surprising (though no less disgusting) to see what happened next:

Four days later, on November 17, a State Department security officer visited the offices of Management Systems International in Juba. Sandra was fired the same day—less than a week after the company had renewed her contract for another year. She was told her position had been eliminated, but MSI posted the same job a month later. Stefanie Frease, one of Sandra's supervisors, told me the dismissal came at the behest of the US government.

"We all thought she was blackballed," said Inez Andrews, a former foreign-service officer working in the US compound in Juba at the time. "It's awful she hasn't been able to clear this up, that she's being held hostage to a system that was trying to extract information."

Later, his mother was blocked from returning to her own home in Nairobi, and told by an immigration official that it was because of the US government: "If the Americans don't want you here, you ain't coming in." And, then, of course, the US went after other members of Naji's family, including his siblings who are in the US military.

Other members of Naji's family have been targeted, too. In 2011, Naji's sister, Tahani, was detained at the Nairobi airport for three days. "I've heard, 'It's your people'"—that the US is behind her family's troubles with customs officials—"more times than I can count," she told me. "I go to airports now and there's this constant sense of trepidation. Am I gonna make it? Am I gonna get locked up again?"

"As a family we have always been mobile and traveling our whole lives, and as a result completely took it for granted," she told me. "The removal of the liberty to travel was crippling."

One of Naji's brothers says he is frequently questioned about Naji when he crosses an international border. The other, a Marine veteran based in Virginia, was visited by members of the Navy's criminal investigative service, who grilled him about Naji. The FBI even interviewed Naji's uncle and aging grandmother in Rhode Island in 2009.

"They didn't get to me, so they had to target my family," says Naji.

The story is horrific, but chillingly consistent with similar stories that we've heard about the way the FBI operates. Yes, it's important for the FBI to try to find out information about possible terrorists, but they seem to have no concern at all for wrecking the lives of totally innocent people in their pursuit of anyone. These are the kinds of activities that you hear about from authoritarian police states. It's the kind of thing that we were always taught the US doesn't do. Whether or not it was always a lie, it's clearly not the case today.

Filed Under: extortion, fbi, informants, muslims, naji mansour

New Lawsuit Claims FBI Used No Fly List To Pressure Muslims Into Becoming Informants

from the police-state dept

Over the past few months, we've covered the bizarre trial of Rahinah Ibrahim, who was incorrectly placed on the no fly list, leading to a series of other problems, meaning that the Stanford PhD grad student was unable to fly back into the US for the past ten years. When the unredacted ruling in that case was finally released last week, we discovered that Ibrahim is still in the "terrorist screening database" (TSDB), though not on the no fly list, and barred from getting a visa to travel back to the US, even though the US admits she's no threat, because of a "secret exception" to the "reasonable suspicion" standard. And, given that the exception is secret, we may never know what it is.

However, perhaps it has something to do with "when the FBI wants to intimidate you into becoming an informant," as a new lawsuit suggests. (And because none of the news sources reporting on this seemed willing to put the actual legal filing online, here it is.) The lawsuit was filed on behalf of four different men, who all had similar experiences with the FBI threatening to put them on the no fly list if they didn't become informants, reporting back on what others in their Muslim communities were up to -- and then finding themselves on the list after refusing.

Plaintiff Muhammad Tanvir is a lawful permanent resident of the United States whose most recent residence in the United States was in Corona, Queens, New York. Mr. Tanvir is Muslim. Mr. Tanvir was placed on the No Fly List after he declined multiple requests by FBI agents to serve as an informant in his Muslim community. He declined to do so because it would have violated his sincerely held religious beliefs. He also felt that he had no relevant information to share. After he learned that he had been placed on the No Fly List, he was told to contact the same FBI agents to clear up what he presumed was an error that led to his placement on the No Fly List. Instead, the FBI agents offered to help him get off the List—but only in exchange for relaying information about his community. Mr. Tanvir again refused. Mr. Tanvir does not pose, has never posed, and has never been accused of posing, a threat to aviation safety.

Plaintiff Jameel Algibhah is a United States citizen who resides in the Bronx, New York. Mr. Algibhah is a Muslim. Mr. Algibhah was placed on the No Fly List after he declined a request from FBI agents to attend certain mosques, to act “extremist,” and to participate in online Islamic forums and report back to the FBI agents. After Mr. Algibhah learned that he was on the No Fly List, the same FBI agents again visited him, telling him that only they could remove his name from the No Fly List if he agreed to act as an informant. Mr. Algibhah again exercised his constitutional right to refuse to become an informant and he remains on the No Fly List. Because of his placement on the No Fly List, Mr. Algibhah has been unable to visit his wife and three young daughters in Yemen since 2009. Mr. Algibhah does not pose, has never posed, and has never been accused of posing, a threat to aviation safety....

Plaintiff Naveed Shinwari is a lawful permanent resident of the United States who resides in West Haven, Connecticut. Mr. Shinwari is a Muslim. Mr. Shinwari was placed or maintained on the No Fly List after he refused a request from FBI agents to be an informant on his Muslim community. Subsequently, he was prevented from boarding a flight to Orlando, Florida, where he had found work. Following his placement on the No Fly List, the same FBI agents approached Mr. Shinwari, told him they were aware of his inability to board his flight, and again asked him to work as an informant. Mr. Shinwari again refused. Because of his placement on the No Fly List, Mr. Shinwari’s work has been disrupted and he has been unable to visit his wife and family in Afghanistan since 2012. Mr. Shinwari does not pose, has never posed, and has never been accused of posing, a threat to aviation safety....

Plaintiff Awais Sajjad is a lawful permanent resident of the United States who resides in Jersey City, New Jersey. Mr. Sajjad is a Muslim. Mr. Sajjad was prevented from flying because he was on the No Fly List. After he sought to be removed from the List, he was approached by FBI agents and subjected to extensive interrogation, including a polygraph test, after which he was asked to work as an informant for the FBI. Mr. Sajjad had no relevant information to share, so he refused. Because of his placement on the No Fly List, Mr. Sajjad has been unable to visit his family in Pakistan, including his ailing 93- year old grandmother, since February 2012. Mr. Sajjad does not pose, has never posed, and has never been accused of posing, a threat to aviation safety

Note how these are all US citizens or lawful permanent residents. The filing notes that while the FBI has used a number of other threats to turn Muslims into informants -- including threatening their immigration status or trying to prosecute them for minor crimes -- at least in those cases, the victims know what's happening. Since the no fly list is totally opaque, the FBI can abuse it widely, with almost no recourse.

Withholding immigration benefits or bringing criminal charges against American Muslims can be challenged and resolved under known legal standards through procedurally adequate administrative or judicial proceedings. Unlike those situations, the No Fly List operates under unknown standards and a vague set of criteria with a process that provides no opportunity to learn of the purported bases for placement on the List or to respond to such claims. This secretive process is conducted with no impartial determination on the merits, and without regard to the possibly retaliatory or unduly coercive motives of the field agents who place people on the No Fly List.

The full filing goes into a lot more detail on the four cases above, showing just how far the FBI is willing to go to try to intimidate people into becoming informants. They're not just asking them to provide information, but often asking them to travel to foreign countries, infiltrate various groups, and send back information. For a whole variety of reasons, the individuals found this to be completely unacceptable, and were subsequently punished by the FBI. The stories are rather heart-wrenching, as these individuals are bullied (sometimes to the point of breaking down and crying), as the FBI threatens all sorts of punishment if they don't do what the FBI wants, which often involves putting themselves in very dangerous positions.

Of course, this is exactly what happens when you allow for secret "lists" like this to proliferate, and give the FBI nearly unlimited power to spy on Americans. I'm assuming that, as in previous no fly list cases, the US government will freak out and claim all sorts of "national security" reasons why the entire case should be dropped. Hopefully, the courts will not allow such games.

Filed Under: doj, fbi, informants, intimidation, no fly list, pressure

FBI-Created 'Terrorist Plot' Fails To Produce A Single Terrorist -- But Does Plenty Of Damage To Individual Liberties

from the sacrificing-your-1st-and-4th-amendment-rights-on-the-altar-of-security dept

As the FBI continues its perfect streak of successfully thwarting every terrorist plan it has conceived and put in motion itself (a few of which have been covered here), details of an unintentionally hilarious (and particularly horrendous) "terrorist plot" conjured up back in 2006 have emerged, thanks to an NPR expose and a lawsuit filed against the FBI by some of the unwilling participants.

Dubbed "Operation Flex" in deference to its main participant, this 2006 FBI project attempted to uncover a terrorist cell in a group of Orange County Muslims, even if it had to invent that cell itself. The FBI's man on the inside was Craig Montielh, who likely cut an incongruous figure at the mosque at 6'2", 260 lbs... and white. A bodybuilder with a sketchy past, Montielh was instructed to make contact with the supposed jihadists during his frequent visits to an Irvine gym where many of the Muslim men worked out.

To Montielh's credit, he sunk himself into the role. His FBI contacts suspected his new friends might be a terrorist cell because, well, they were four, unmarried Egyptian men living under one roof. But his enthusiasm for the job was constantly thwarted by his "targets," who preferred playing FIFA Soccer on the Xbox to discussing terrorist plots.

At first, they treated Montielh (who was going by the name "Farouk") as one of them, a new acolyte in need of guidance. But as time went on and Montielh became desperate to show results, his desire to turn idle revolutionary chat into action began to worry his companions. Montielh's first move was to amp up his personal relationship with Allah.

Months passed. People noticed that Craig was acting more devout. He began reciting prayers aloud, dressing in traditional robes, and showing up so early for 5:00 AM prayers that he'd get there before the person who unlocked the mosque every morning. They also noticed something else.

Yassir Abdel Rahim - Slowly and surely enough, during some times when we were having coffee, came the question of jihad.

Craig talked to his Arabic teacher, Mohammad Elsisy, about his new obsession too.

Mohammad Elsisy - He invited me once to lunch, yes. And he focused the topic in the lunch about jihad. And I keep turning his attention into the essence of Islam. And he keeps, again, bringing it back to jihad. And he kept asking about jihad over and over and over. And I told him, Farouk, get over it, get over it, get over it.

With Montielh trying and failing repeatedly to get these California Muslims to warm up to his own personal jihad, the FBI decided it was time for phase two. Montielh was told to start talking up an actual terrorist plot to blow up buildings in Southern California. After Montielh aggressively broached the subject to his friends during a car ride, they decided to do what anyone would have done in that situation:

After they parted ways with Craig, Mohammad and Niazi talked about what had just happened. They decided they had to do something, so they did what all Americans are supposed to do in this situation, what law enforcement officials tell us we should do when someone says he has access to weapons and wants to use them. They reported Craig to the FBI as a potential terrorist.

Mohammed and Niazi had Hussam Ayloush, the director of the Council on American Islamic Relations, make the call for them. He spoke to Steve Tidwell, the head of the FBI's California branch. Tidwell didn't even ask for a name or last known address of this white Muslim terrorist and assured Hussam that the FBI would take it from here. And the FBI did, launching what, for all intents and purposes, looked like an actual terrorist investigation.

But instead of wholeheartedly pursuing its own man, the FBI agents were more interested in repeatedly questioning everyone Montielh had talked to. They honed in on Niazi, whose sister was married to Amin al-Haq, designated as a terrorist by the US government. The FBI agents used this as leverage in an attempt to get Niazi to become a paid informant and go to work for them in Afghanistan. When he refused, the FBI had him arrested for "immigration fraud and making false statements."

But what's interesting about Niazi's arrest is what he wasn't charged with. He wasn't charged with associating with terrorists himself. He wasn't charged with plotting an attack. And he wasn't charged for anything he'd ever said to Craig over the course of months of recorded conversations.

At Niazi's trial, Agent Thomas Ropel repeatedly told the prosecutor that Niazi had instigated the conversations related to the so-called "terrorist plot." This isn't the way Montielh (or his tapes) remembers it:

Sam Black - Did Niazi ever instigate this kind of conversation with you?

Craig Montielh - No. No, I did. Every time.

Despite not being charged with anything more serious than immigration fraud and "making false statements," Niazi was placed under house arrest for more than a year. He represents all of the arrests or indictments made as a result of Operation Flex. And even this didn't stick. The US government filed a motion to dismiss all charges against Niazi.

Another home-built terrorist operation and not even a single conviction to show for it. In fact, the FBI is arguably worse off now than if it had never begun the investigation. The Council on American Islamic Relations (CAIR) has brought a lawsuit against FBI over Operation Flex, claiming the investigation violated their First Amendment rights by targeting them for their religious beliefs, as well as subjecting them to searches and monitoring without a warrant. The botched operation has also done damage to the Muslim community in California:

Operation Flex didn't just make people suspicious of law enforcement. It made them suspicious of each other. So many people I talked to say they stay away from new converts now. They have a hard time believing people are who they say they are. Here's Ayman, the Egyptian guy who first befriended Craig.

Ayman - Really, what they did is they made everybody in the mosque not trust everybody. Nobody would talk about it, but nobody-- you would see some weird looks, you know what I mean? People are looking at each other weird. I don't know. Maybe I was sensitive, but I can tell that the way they looked at me was just different.

In addition to making themselves look like a bunch of government agents creating their own busywork to stay employed, the FBI has taken yet another serious hit to its credibility. Early on in the transcript, it's noted that Stephen Tidwell (head of the FBI in Los Angeles) made an earlier approach via a town meeting at the Islamic Center of Irvine. He assured everyone attending that the FBI was not monitoring the mosque and that they would be informed if anyone from the FBI was planning to visit. That was June 5, 2006. Operation Flex began roughly two months later.

Then there's this troubling statistic, courtesy of investigative journalist Trevor Aaronson, who's studied hundreds of terrorism convictions:

Of about 500 terrorism cases since 9/11, about 50 defendants have been involved in cases where the informant came up with the idea and provided all of the means.

Finally, the worst, but least surprising, news of all: in an update to the story, NPR points out that US District Judge Cormac Carney has dismissed the lawsuit brought by CAIR, stating that allowing the the suit to proceed would "significantly compromise national security."

Carney's self-serving statement casts him (and a large part of the government's various secretive services) as an ancient Greek hero:

In struggling with this conflict, the Court is reminded of the classic dilemma of Odysseus, who faced the challenge of navigating his ship through a dangerous passage, flanked by a voracious six-headed monster, on the one side, and a deadly whirlpool, on the other. Odysseus opted to pass by the monster and risk a few of his individual sailors, rather than hazard the loss of his entire ship to the sucking whirlpool. Similarly, the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security.

I know the Greeks laid the foundation for modern democracy, but perhaps we shouldn't base our decisions on their epic tragedies.

Filed Under: fbi, informants, muslims, privacy, profiling, terrorism