Investigation: CBP Targeted Journalists, Illegally Shared Info With Mexico, And Attempted To Cover It All Up

from the bad-apples-floating-to-the-top-of-the-barrel dept

A couple of years ago, documents surfaced that showed the CBP was placing journalists, activists, and immigration lawyers on some form of a watchlist, which would allow agents and officers to subject these targets to additional scrutiny when they crossed the border. There were obvious civil liberties implications, ones the CBP seemed largely unconcerned about.

The targeting appeared to be related to the "migrant caravan" that reached the border late in 2018 and performed a mass "incursion" on January 1, 2019. The CBP claimed it had only targeted those people because they had been involved in "violence" near the border late in 2018. It refused to explain what it meant by the word "involved" or how that was enough to ignore First Amendment protections. Nor did it explain why it was deliberately targeting US citizens not suspected to have been involved in any criminal activity. It also did not explain why it shared information on these targets with the government of Mexico, which then assisted in spying on this group of lawyers, journalists, and activists.

The DHS Inspector General opened an investigation [PDF] of these actions. And it has arrived at the conclusion that this all looks pretty bad, but wasn't actually illegal. Read into that what you will.

We did not find that CBP placed lookouts to retaliate against U.S. citizens for performing lawful work related to the migrant caravan. To the contrary, witnesses told us, and contemporaneous emails and documents corroborated, CBP placed lookouts to gain information about suspected illegal activity and then generally sought information consistent with that purpose during the resulting interviews. Although we determined CBP’s lookouts on a number of journalists present at an illegal border crossing were unnecessary, we found no evidence that CBP placed these lookouts to harass the journalists.

But that lead paragraph is misleading. The only thing that still works in context of the rest of the report is "found no evidence."

What this report details is stuff that looks like targeted harassment of individuals -- some of them journalists -- by CBP personnel. And yet, the IG is unwilling -- despite apparent lies from interviewed personnel and deliberate destruction of communications -- to call this what it is: a violation of people's rights for reasons the CBP is unwilling to discuss and actively worked to cover up.

It appears one person was more involved in targeting journalists than anyone else during this time period. This person has also been cleared of wrongdoing by this investigation.

Although we found no evidence in emails or interviews that the EOC [Emergency Operations Center] official who placed these lookouts (EOC Official 1) did so to harass the journalists or for any other ulterior reasons, his subsequent actions, or lack thereof, demonstrate he did not need to place the lookouts.

However, it's hard to believe this official did not order up these lookouts to "harass" journalists or "for any other ulterior reason." There was a stated purpose for these lookouts but this official never bothered to check back in after nominating the targeted journalists for additional harassment by CBP officers.

In one incident, Mexican police identified five American journalists after CBP officials alerted them that CBP officials observed members of the media helping migrants climb a border fence. EOC Official 1 then placed lookouts on the five journalists. The lookouts did not mention the illegal crossing but instructed interviewing officers where to find information about the journalists.

Although EOC Official 1 told us the purpose of these lookouts was to determine whether the journalists had information about the incident, his actions show he actually had no interest in that information. Over the following weeks, all five journalists came back to the United States, and CBP referred them to secondary inspection. Interview records reflect that none of the five journalists were asked about the illegal crossing. In fact, the journalists returned to the United States at various places and times and were therefore interviewed by several different officers. None of the officers asked about the illegal crossing.

It really, really looks like this official just thought it would be fun to subject journalists to secondary screenings.

EOC Official 1 placed more caravan-related lookouts than anyone else and was in regular contact with the TTRT throughout Operation Secure Line. If he wanted to know whether the journalists had information about this incident or other illegal border crossings, he knew how to contact the TTRT. Additionally, EOC Official 1 removed one of the lookouts after the journalist’s third interview, even though according to the interview record, CBP never asked the journalist about the illegal border crossing. If EOC Official 1 no longer needed information about the illegal border crossing at that point, then he also did not need the information when he placed the lookout 9 days earlier.

That wasn't the only case of inappropriate or unjustified targeting. There were more cases, something the system used by the CBP (TECS) appears to allow even though the policy and CBP statements claim that it doesn't.

CBP may place lookouts “only if illegal activity is suspected. The system will not allow a user to indicate that a ‘non-suspect’ is on ‘lookout.’” This last sentence has two possible interpretations. It could mean officials may place lookouts only on people who are suspects of illegal activity, and not on non-suspects; or it could be a description of how the TECS system works.

The footnote to this paragraph makes it clear this is not how the TECS system works:

While the TECS Directive says CBP may place lookouts only when illegal activity is suspected, it allows CBP to create “TECS records” or “TECS subject records” even when there is no suspicion of illegal activity.

This means a lot of lookouts had no direct connection to suspected criminal activity.

Nearly half of the caravan-related lookouts (25 out of 51) were on people for whom there was no evidence of direct involvement in illegal activity. Instead, those lookouts were based solely on the individuals’ associations with other people who were suspected of illegal activity.

Some links were stronger than others. Some "associations," however, were nearly nonexistent.

In one instance, a CBP official placed lookouts on two attorneys who previously crossed the border with someone who was believed to be an administrator of a caravan-related online chat group on WhatsApp. In another example, after a suspected migrant caravan organizer was seen riding in a vehicle, the EOC placed lookouts not only on the owner of that vehicle but also on someone who crossed the border with the vehicle owner one time, 9 months earlier, well before the migrant caravan started traveling towards the United States.

Almost anything can trigger a lookout. And one official (EOC Official 1) was more trigger-happy than most. This official -- who nominated the most journalists -- also refused to remove people from the lookout list when it became obvious they weren't connected to criminal activity and did not need to be subjected to additional screening when crossing borders. What this person did do, apparently, was lie to IG investigators.

EOC Official 1, who was primarily responsible for placing caravan-related lookouts at the EOC, also told us that many U.S. citizens did not need to be interviewed multiple times. Accordingly, EOC Official 1 claimed he went into TECS and removed caravan-related lookouts after individuals were interviewed, but review of TECS data revealed that EOC Official 1 did not remove any of his lookouts on U.S. citizens following their first border crossings. When presented with this information, he maintained that he tried to remove many lookouts and speculated that a technical glitch may have prevented that from happening, but we confirmed that no such glitch occurred. Instead, the evidence demonstrates that EOC Official 1 did not try to remove 18 of his 20 lookouts that resulted in secondary inspections.

Basically, this one official -- who the IG says did not target journalists for "improper" reasons -- targeted a bunch of journalists until it became too much of an embarrassment to ignore.

In fact, EOC Official 1 did not reevaluate or remove his lookouts when he finished his EOC detail at the end of January 2019. Instead, he and his supervisor transferred at least 31 caravan-related lookouts to other EOC personnel without giving any notice or instruction. One official who inherited several of those lookouts stated he did not even learn he was assigned to those lookouts until CBP officers contacted him as they were about to interview the individuals. He recalled that one of the first times this happened, he reached out to EOC Official 1, who originally placed the lookout. EOC Official 1 told him the lookout was no longer necessary, even though he had transferred it to him just days earlier. Still, after this discovery, the EOC did not systematically review the remaining lookouts. Instead, the lookouts remained in place for 2 more weeks, until a media story calling attention to the lookouts spurred the EOC to review and remove 18 caravan-related lookouts it determined were no longer necessary.

In the end, there's no complete absolution for this official. But neither is there any recommendation to discipline this person for using the lookout process as a form of harassment, something the IG report asks readers to infer from paragraphs like these:

Based on our review of all available evidence, we were unable to determine why CBP did not remove unnecessary caravan-related lookouts. We found no direct evidence that CBP kept lookouts active to harass, intimidate, or retaliate against caravan associates. However, EOC Official 1’s vague explanation for not removing lookouts, and the EOC’s disinterest in the repeat interviews, suggest it may not have been entirely accidental. Regardless of whether the EOC intended to punish or dissuade U.S. citizens from traveling between Mexico and the United States, subjecting them to repeated unnecessary inspections can have that effect, as the individual who was referred to secondary inspection four times explained.

Outside of this particularly problematic official, there were other signs the CBP used the lookout list as a way to make things difficult for people officers didn't like.

We found that, in December 2018, a CBP official asked Mexico to deny entry to 14 U.S. citizens affiliated with the migrant caravan, including one individual who was subsequently denied entry into Mexico. CBP may restrict Americans’ rights to travel internationally in certain circumstances, but CBP could not articulate any genuine basis for sending this request and in fact later admitted that the reasons provided to Mexico were not true.

And if the IG didn't find any communications indicating these nominations were done for improper reasons, it's probably because any communications pertaining to possibly illegal targeting were never memorialized, so to speak.

We found that on eight other occasions, CBP officials improperly sent Mexico the names and sensitive information of dozens of additional U.S. citizens, and some of those individuals were later denied entry into Mexico. However, because these CBP officials did not comply with CBP policies on sharing information with foreign entities and did not retain communication records, we cannot determine whether the officials asked Mexico to deny entry to those Americans.

It's harassment.

FOB Official 1 could not offer any reasons to us for asking Mexico to deny entry to the 24 individuals listed in his email. He could not recall anything about most of the 24 individuals, other than he did not think they were involved in illegal activity. In fact, FOB Official 1 initially denied that he ever asked Mexico to reject any individuals and insisted he did not remember this email until we showed it to him. FOB Official 1’s concerns about the 24 individuals could not have been particularly serious, because when we interviewed him, he could not recall what the concerns were or why they prompted him to ask Mexico to deny entry to those individuals, even though he said this was the first and only time he ever sent such a request.

And it was covered up.

Also, in January 2019 another FOB official (FOB Official 3) used his official CBP email account to send unencrypted SPII of six U.S. citizens to a Mexican intelligence official’s Yahoo email address. FOB Official 3 told us he sent the email so the Mexican official could provide information to help prevent a “very serious” threat from occurring. Yet, FOB Official 3’s email does not request any information from the Mexican official, and instead of mentioning a future threat, the email says the six individuals may have been involved in a past event. We were unable to clarify this inconsistency or determine the true reason FOB Official 3 sent this email, because he admitted deleting contemporaneous WhatsApp messages with this Mexican official.

More on the coverup, including the use of WhatsApp as a tool for opacity.

The CBP officials’ inability to recall key details about their communications with Mexican officials, or in some cases, whether they even shared information about U.S. citizens with Mexican officials, raises questions about whether there were other instances of Mexican and CBP officials’ sharing information about American caravan associates. Complete WhatsApp records would have shown whether CBP officials shared U.S. citizens’ SPII with Mexico on other occasions.

The fact that none of these officials retained their WhatsApp messages, and the various ways in which that happened, highlights the challenges of satisfactorily upholding recordkeeping responsibilities when CBP employees use WhatsApp. This is particularly troubling given the widespread use of WhatsApp during Operation Secure Line. Numerous CBP officials, across various offices, regularly used WhatsApp to communicate both with individuals and in various WhatsApp groups, some of which contained up to hundreds of U.S. and Mexican officials. Yet, these officials did not consistently retain their WhatsApp messages or copy or forward them to their official CBP accounts.

At the end of all of this, there are recommendations to clarify policy and better document lookout nominations and interviews. Nowhere in the report are there recommendations to punish anyone involved in this or forbid the use of self-destructing communications to preemptively erase evidence of misconduct or rights violations. So, unless the CBP is willing to step up and discipline those involved in this targeting, it will happen again and again and again. And since we can count on the CBP to take a hands-off approach to internal oversight, we can expect history to repeat itself.

Filed Under: 1st amendment, activists, cbp, immigration, journalists, lawyers, retaliation, surveillance, watchlist

CBP Put A Bunch Of Journalists, Immigration Lawyers, And Activists On A Secret Watchlist

from the fuck-the-Constitution-I-guess dept

Leaked documents obtained by an NBC affiliate show the government has taken a direct interest in journalists and activists covering the many, many happenings at our southern border. But the government isn't interested in keeping them safe or giving them the space to do their jobs. Nope, the CBP has been treating journalists like suspected criminals, hauling them in for hours of questioning and examining the contents of their phones and laptops.

Oh well. I guess the First Amendment had a good run.

Documents obtained by NBC 7 Investigates show the U.S. government created a secret database of activists, journalists, and social media influencers tied to the migrant caravan and in some cases, placed alerts on their passports.

[...]

One photojournalist said she was pulled into secondary inspections three times and asked questions about who she saw and photographed in Tijuana shelters. Another photojournalist said she spent 13 hours detained by Mexican authorities when she tried to cross the border into Mexico City. Eventually, she was denied entry into Mexico and sent back to the U.S.

The documents (which appear to be screenshots of the CBP database) show an extensive list of journalists and activists, along with notes stating whether or not the person was interviewed and/or placed on a CBP "alert" list. The surveillance of protected First Amendment activities is apparently part of the DHS's "Operation Secure Line," which monitored the caravan travelling through Mexico to the US border.

Here's who's on the list, according to NBC 7's investigation:

The individuals listed include ten journalists, seven of whom are U.S. citizens, a U.S. attorney, and 47 people from the U.S. and other countries, labeled as organizers, instigators or their roles “unknown.” The target list includes advocates from organizations like Border Angels and Pueblo Sin Frontera.

The CBP's first statement said this all just normal border-protecting stuff. According to its initial deflection, adding journalists and activists to watchlists that targeted them for enhanced screening and other unpleasantness is all part of the government's plan to address the multiple caravans headed for our borders. The CBP statement does not explain why targeting lawyers, activists, and journalists is considered an appropriate use of government resources. In fact, it doesn't attempt to address the database and its contents at all.

And it's not just secondary screenings and hours-long interviews of people engaging in protected speech. The DHS is apparently compiling entire dossiers about this group of targets -- none of which is suspected of participating in criminal behavior. According to a DHS source quoted in the article, the agency doesn't have the authority to compile information on people not suspected of criminal activity. As the unnamed person notes, DHS isn't an intelligence agency. It's a law enforcement agency.

CBP now appears to be in panic mode. An update added to the story indicates the agency is throwing any justification it can against the wall in hopes of something sticking.

Minutes after our story published and five days after a Customs and Border Protection spokesperson gave us the agency's statement above, CBP told our colleagues at NBC News that the names in the database are all people who were present during violence that broke out at the border in November. The agency also said journalists are being tracked so that the agency can learn more about what started that violence. CBP never clarified that point directly to NBC 7 Investigates.

Even this hasty course correction is a spectacular failure of logic. The CBP is investigating a confrontation at the border... by placing journalists, lawyers, and activists under surveillance? That makes no sense. The CBP can speak to these people without placing them on an alert list and subjecting them to enhanced screening and device searches. If the agency needs to interview witnesses, there are processes for that -- none of which look like an attempt to chill press freedom and pro-immigrant activism at the border.

Filed Under: activists, cbp, customs and border patrol, immigration, journalists, lawyers, watchlist

Exposure Of Secret TSA Surveillance Program Nets The Government More Terrorist Watchlist Litigation

from the clearly-audible-responses-to-the-'Quite-Skies'-program dept

The recent exposure of the TSA's "Quiet Skies" program by the Boston Globe is leading to more terrorist watchlist litigation. The "Quiet Skies" program sends air marshals all over the US to watch travelers swallow, shop, use the restroom, and stare at things. It's suspicionless surveillance even the air marshals disagree with, with some quoted by the Globe calling the program a worthless waste of tax dollars, if not just a vehicle for repeated Constitutional violations.

The Council of American-Islamic Relations (CAIR) is using this information in two of its lawsuits against the government. Its lawsuit against the Terrorist Screening Center -- which originated in 2016 -- will hopefully be aided by the Globe's reporting. A motion to compel discovery [PDF] seeks details on the program for use in this litigation. The filing notes the government continues to hide information about its many watchlists from the plaintiffs it represents, forcing it to rely on leaked documents to obtain information it has already requested from the government.

Throughout discovery, Plaintiffs have sought to determine, at the very least, the broad outlines of the watchlisting system. And yet, throughout discovery, Defendants have kept TSA’s Quiet Skies program hidden. Even though all indicators show that Quiet Skies is responsible for engulfing thousands of innocent Americans within the watchlisting system, the program appears in no document produced to Plaintiffs nor in any answers to Plaintiffs’ discovery questions. It was conveniently left out and not referenced; deposition questions which would have unmasked it were blocked. With this latest news, the Court should conclude that Defendants continue to improperly withhold basic watchlist information.

The motion points out this exposed secret watchlist likely explains the actions observed by one of its clients -- a possible "Quiet Skies" target -- when traveling. (It should be noted that fliers noticing they're being tailed by someone is also considered suspicious activity, especially if the flier does anything to ditch the tail or otherwise expose the surveillance.)

Plaintiff El-Shwehdi reports that once at JFK he was “shadowed” by what appeared to be a plainclothes security officer. The man followed him “with a clipboard with some paper” from “near the ticket counter,” through security, continuing while El-Shwehdi put back on his belt and shoes, and kept up the monitoring for the next “two hours” in the boarding area. The plainclothes man even tailed El-Shwehdi when he went to the bathroom, and when he went to get soup. These detailed descriptions of constant monitoring by an undercover officer map precisely onto Quiet Skies.

CAIR's new lawsuit over terrorist watchlists targets a few dozen government officials and agencies, including the FBI, DHS, TSA, TSC (Terrorist Screening Center), DOJ, and CBP. The complaint [PDF] alleges the government engages in routine suspicionless surveillance of US citizens and lawful residents, resulting in a number of harmful outcomes, including a lifetime of government snooping and severe curtailment of personal freedoms.

Through their watchlisting system, the federal government makes it known— to every law enforcement agency in the country, every part of the federal government, more than 60 foreign countries, an unknown number of private companies, international bodies, and other third parties—that the Plaintiffs should be treated as dangerous threats. The Plaintiffs’ friends, family, and others with whom the Plaintiffs associate are punished for their relationship with a watchlisting system’s target.

The Defendants know that their watchlisting system has never prevented an act of terrorism inside the United States and is completely ineffective, but they continue to expand it anyways.

Plaintiffs and almost all others targeted by the watchlisting system have never been arrested, charged, or convicted of any type of terrorism-related offense. Nonetheless, the federal government has designated them as “known or suspected terrorists,” wreaking havoc on Plaintiffs’ personal, religious and professional lives.

Stuff that's legal for Americans to do -- traveling to the Mideast, speaking Arabic, worshiping at mosques -- are all considered suspicious activities by those running the watchlists. This must be discriminatory behavior since it certainly isn't justified by any paperwork or research the government's been able to produce.

Leaked government documents as well as public governmental reports, reveal that the federal government’s terrorist watchlisting system is discriminatory, standardless, and devoid of adequate procedures. These documents include the March 2013 Watchlisting Guidance (Exhibit 1), the Directorate of Terrorist Identities (DTI): Strategic Accomplishments 2013 (Exhibit 2), the Department of Justice's March 2014 Audit of the Federal Bureau of Investigation's Management of Terrorist Watchlist (Exhibit 3), and a 2018 informational bulletin on the “Quiet Skies” program (Exhibit 4).

The fact that watchlisting radiates outward from targets means children, relatives, friends, business associates, and fellow worshipers may all be added to the government's lists simply because they have frequent contact with a target. This creates exponential expansions of watchlists with each new "connection" added, all without individual, particularized suspicion.

Recourse for targeted travelers is limited and restricted to border crossings. For those targeted and traveling from place to place in the US, there's no way to challenge the TSA's "Quiet Skies" watchlist placement. And, as the lawsuit notes, the government hasn't been forthcoming about its many watchlists, so those suing may be on others they can't even begin to challenge because no one has acknowledged their existence.

This is an extremely unfortunate state of affairs for a country that used to welcome immigrants from around the world and held itself up as the standard bearer for personal freedoms. Capitalizing on a horrific tragedy, the government as a whole has used the specter of terrorism to amass and consolidate power. The multiple secret watchlists compiled without articulable suspicion is only one symptom of the country's failure to handle a terrorist attack in a manner befitting the leader of the free world.

Filed Under: 4th amendment, quiet skies, tsa, watchlist
Companies: cair

New Blog Details The Unfortunate Experience Of Being On Homeland Security's Terrorist Watchlist

from the the-S's-stand-for-'stupid' dept

You don't have to be affiliated with any known terrorist group to be added to the government's terrorist watchlist. The Intercept's publication of the numbers behind the massive amount of people the government's keeping an eye on made that perfectly clear. A full 40% of the list -- 288,000 people -- are there without any particular justification. The agencies making these nominations clearly can't articulate why certain people should receive enhanced searches and questioning each and every time they seek to board a domestic flight. But they nominate these people anyway, using something no more scientific (or counter-terroristic) than a hunch.

Kashmir Hill at Forbes has a great profile of (not-very-anonymous-after-all) blogger Peter Young, who has received the dreaded SSSS designation from the TSA. Ringing up 4 S's means every TSA agent thinks you're a terrorist and every visit to the airport means extra patdowns and questioning. Young has been detailing the humdrum existence of your everyday terrorist over at his blog, "Jetsetting Terrorist," where he notes that his decidedly non-terroristic appearance causes the consternation and confusion at smaller airports where 4-S designations are few and far between. Not that being a jetsetting terrorist doesn't have its upsides…

He discovers some of the hidden benefits of being labeled a terrorist: his boarding pass is a ticket to the front of the security line. He realizes he can turn the confusion over his flying status into a free flight and drink vouchers.

He also speculates as to why those on the terrorist watchlist aren't allowed to sit by emergency exits.

Terrorists hate humans so much we would physically block exit points in the event of a crash and/or fire.

They make you do that weird verbal confirmation thing after the fight attendant recites that exit row speech, and we’re known for only speaking Arabic.

The TSA just likes making stupid rules vacant of any rationale.

"Stupid rules vacant of any rationale" aptly describes a large swath of the Terrorist Watchlist, including Young's 4-S status, which prevents him from utilizing technological advancements like checking in electronically using a mobile device or a kiosk.

As far as Young can tell, it's a nearly two-decade-old misdemeanor that's keeping him from traveling without additional molestation.

His full time job is running an online business, but he is also a prominent animal activist; the latter is what garners him the extra TLC from the TSA. The property crime for which he was convicted dates back to 1997 when he went on a cross-country road trip freeing minks from fur farms in three states. His weapon of mass destruction was a pair of bolt cutters. On the lam for a number of years, he was apprehended and tried in 2005, and found guilty of “animal extortion terrorism.”

"Animal extortion terrorism" isn't covered under the guidelines for the Terrorism Watchlist. In fact, Young was only ever convicted of a misdemeanor (pleading down from a felony) and served on two years for his federal crime. But that's still enough to make him a feared traveler, one who is never to be trusted, not even 17 years removed from the "crime spree" that first drew the government's attention. While the prosecutor tried to connect Young with a group the DHS actually recognizes as domestic terrorists (the Animal Liberation Front), it didn't stick. Young denies any connection with the animal rights extremists.

There's another reason Young is blogging about his experiences: this very public outing of his TSA-stained laundry makes it that much tougher for the US government to simply "disappear" him, air travel-wise.

According to the Intercept, there were 16 people on the No-Fly list in 2001; in 2013, it had exploded to 47,000. “I’m worried the government will slowly move people from the Selectee list to the No-Fly list,” Young says. “I want a podium to speak from in case that does happen to me.”

As has been noted here, the No-Fly list is an unconstitutional joke. The "redress process" is so horribly ineffective that a court actually declared it to be a violation of Americans' civil rights. The Terrorism Watchlist is not only broader, but it's possibly more damaging. While it won't actually prevent you from flying (provided you don't mind every trip to the airport being the Full TSA Security Theater Experience), it does open your life up to a whole lot more government scrutiny.

In addition to data like fingerprints, travel itineraries, identification documents and gun licenses, the rules encourage screeners to acquire health insurance information, drug prescriptions, “any cards with an electronic strip on it (hotel cards, grocery cards, gift cards, frequent flyer cards),” cellphones, email addresses, binoculars, peroxide, bank account numbers, pay stubs, academic transcripts, parking and speeding tickets, and want ads. The digital information singled out for collection includes social media accounts, cell phone lists, speed dial numbers, laptop images, thumb drives, iPods, Kindles, and cameras. All of the information is then uploaded to the TIDE database.

Screeners are also instructed to collect data on any “pocket litter,” scuba gear, EZ Passes, library cards, and the titles of any books, along with information about their condition—”e.g., new, dog-eared, annotated, unopened.” Business cards and conference materials are also targeted, as well as “anything with an account number” and information about any gold or jewelry worn by the watchlisted individual. Even “animal information”—details about pets from veterinarians or tracking chips—is requested. The rulebook also encourages the collection of biometric or biographical data about the travel partners of watchlisted individuals.

This is from the same rulebook and documents that admitted that nearly 300,000 of the 680,000 people on the government's Terrorist Watchlist have "no recognized terrorist group affiliation." Just another ridiculous facet of the Dept. of Homeland Security's security theater: loading up on unrelated "extras" just so it can boast it has a "cast of thousands" (and demand a budget of billions!). No terrorism experience necessary. Enjoy your flight!

Filed Under: peter young, security, security theater, ssss, terrorist, terrorist watch list, tsa, watchlist

DOJ Pretends No Fly Guidelines Haven't Been Leaked, Claims 'State Secrets' To Avoid Revealing Them To The Judge

from the hiding-in-shame dept

Back in July, we wrote about the Intercept releasing a leaked copy of the US law enforcement guidelines for putting someone on the no fly list. There have been a series of lawsuits recently concerning the no fly list, and the government has basically done everything possible, practically to the point of begging judges, to avoid having those cases move forward. So far, that's failed miserably. The Rahinah Ibrahim case, for example, showed how a Stanford PhD student with no terrorist connections was put on the list by someone checking the wrong box on a form (and then was kept on a separate terrorist watchlist under a secret exception to the rule that there be "reasonable suspicion.") In that case, like every other, the DOJ claimed "state secrets" in trying to get the case dismissed. There have also been cases about the feds using the threat of being put on the no fly list to force unwilling people to "become informants." An important ruling back in July said that the process for getting off the list is unconstitutional.

In another case involving the list, Gulet Mohamed is challenging the fact that he's on the list, and the DOJ has done its usual "state secrets, throw out the case" claim. The judge, so far, isn't buying it, and has asked the DOJ to reveal how it puts people on the list. Specifically, Judge Anthony Trenga asked the DOJ to provide:

[A]ll documents, and a summary of any testimony, expert or otherwise, that the United States would present at an evidentiary hearing or trial to establish that inclusion on the No Fly List, as applied to United States citizens who are not under indictment or otherwise charged with a crime and who have not been previously convicted of a crime of violence, is necessary, and the least restrictive method available, to ensure the safety of commercial aircraft from threats of terrorism, and that no level of enhanced screening would be adequate for that purpose.

In a filing last week, Mohamed's lawyers pointed to the leaked guidelines, and the DOJ responded by saying, "Huh? Document? What document? We don't know of any such document, and deny its existence." Or something to that effect:

With respect to Plaintiff’s points, Defendants do not acknowledge the authenticity of the purportedly leaked documents, and will respond to the proposed Notice in due course.

The DOJ has now gone further and said it still doesn't think it should have to produce the information because it's still claiming state secrets, and it doesn't think the judge should have to look at the documents in question to determine if the state secrets demand is appropriate. Yes, they're arguing that the judge should determine if something can properly be called a state secret without revealing what the information is. Actually, the DOJ is going even further, arguing that it's inappropriate to look at the alleged state secrets to determine if the state secrets privilege applies.

The requested submission would not assist the Court in deciding the pending Motion to Dismiss because it is not an appropriate means to test the scope of the assertion of the State Secrets privilege, does not pertain to the claims in the Complaint, and does not address the appropriate legal standard for substantive due process.

Got that? The Court should just agree that it's a state secret and shut down the entire case. The DOJ pretends first that the necessary documents haven't already been leaked to the world, and second acts like it's crazy for a judge to want to actually see the documents before determining if it's really a "state secret" they're protecting.

Of course, as we noted, when the document leaked it seemed pretty clear that the DOJ was lying when it said it wouldn't reveal them because of state secrets. It doesn't want to reveal them, because they reveal how the process almost certainly violates the 4th Amendment. Rather than protecting "national security," the attempts to hide the details of the list are very much about protecting "DOJ security."

Filed Under: doj, guidelines, gulet mohamed, leaks, no fly list, state secrets, watchlist

As DOJ Hunts For 'Second Leaker,' Will It Also Explore Who Leaked The Intercept's Story To The AP?

from the questions-to-ponder dept

Earlier this week, Tim Cushing wrote about The Intercept's latest scoop, concerning the makeup of the US government's federal terrorist watchlist, and the fact that a large chunk of it isn't affiliated with any terrorist groups. While most of the article focused on that point, he made two other notes in passing -- the first was that it was obvious that this release was from a second leaker, not Snowden, and the second was about how the government "leaked" the story in a "friendlier" manner to the AP in order to beat The Intercept. We thought both of these asides were interesting, but they've both turned into big stories on their own.

CNN later confirmed that US government officials are now searching for the second leaker (though "second" may not be accurate either...), more or less confirming what many people had been suspecting. Meanwhile, the "scoop spoiling" by the federal government actually resulted in a semi-apology from the National Counterterrorism Center (NCTC) who gave the scoop to the AP. The NCTC claimed it had been working with the AP on a story for a while, and after seeing what The Intercept was doing, felt it needed to give them the heads up, though it also says it could have handled the situation better. Of course, this also makes it more likely that The Intercept won't bother giving the government much time (if any) to respond on future stories. Why risk the chance of having the government spoil the scoop again?

However, with all this concern about the "second leaker," Chris Soghoian asks a very good question. If the Justice Department is going to go hunting for whoever leaked the information to The Intercept, will it similarly go after whoever at NCTC was apparently providing the same basic information to the Associated Press? Or how about the person who told CNN that the US government believes there's a "second leaker"? Because that information is also a leak, and potentially a big one, given that it will alert the leaker that the government is searching for him or her.

Somehow, we don't think the DOJ will be too concerned about those leaks. "Official" leaks happen all the time and no one cares. It's just the leaks that make the government look bad that somehow are seen as criminal.

Filed Under: government leaks, leaker, leaks, terrorism, tsdb, watchlist
Companies: associated press, cnn, the intercept

Nearly 40% Of Those On The Government's Terrorist Watchlist Have 'No Affiliation With Recognized Terrorism Groups'

from the idk-lol dept

Another leak has surfaced at The Intercept, notably a non-Snowden leak ("obtained from a source in the intelligence community") that shows the utter ridiculousness of the government's terrorist watchlist. Nothing states it better than the universal shrug judiciously applied to the 280,000 people that make up the largest portion of the chart.

The culmination of post-9/11 policies and the steady erosion of civil liberties in the service of "fighting terrorism" has opened up nearly 300,000 people to additional scrutiny because ¯\_(ツ)_/¯ .

The list has increased 10-fold during Obama's stay in office, growing from 47,000 at the end of Bush's term to 680,000, 40% of whom the government is sure represent some sort of a threat, even if it can't quantify that in any specific way.

When U.S. officials refer to "the watchlist," they typically mean the TSDB, an unclassified pool of information shared across the intelligence community and the military, as well as local law enforcement, foreign governments, and private contractors. According to the government's watchlisting guidelines, published by The Intercept last month, officials don't need"concrete facts" or "irrefutable evidence" to secretly place someone on the list—only a vague and elastic standard of "reasonable suspicion."

It's long been noted that articulable facts are unwanted guests in the War on Terrorism (and War on Drugs) discussion. Instead, hunches and gut feelings are elevated to places formerly occupied by Fourth Amendment protections.

This group of people, shrugged into "nomination" by a variety of government agencies, is then shared with law enforcement, private contractors and foreign governments. That's at least 280,000 people being vetted with impunity by a variety of TSDB end users -- people who are deemed too dangerous to go unsurveilled but not dangerous enough to arrest or investigate further.

If there's any good news here, it's that at least some form of filtering is used to keep the database from swelling exponentially.

Most people placed on the government's watchlist begin in a larger, classified system known as the Terrorist Identities Datamart Environment (TIDE). The TIDE database actually allows for targeting people based on far less evidence than the already lax standards used for placing people on the watchlist. A more expansive—and invasive—database, TIDE's information is shared across the U.S. intelligence community, as well as with commando units from the Special Operations Command and with domestic agencies such as the New York City Police Department.

Those running TIDE have actually celebrated the fact that they recently added the millionth name to the database, failing to see that the constantly-increasing database is actually an admission of failure. If the system was working, the number of names should remain nearly constant, as those who aren't threats are removed from the list (something which apparently never happens) and those that are threats are rounded up (or otherwise disposed of).

And there seems to be a hint of racial profiling contained within the TSDB numbers.

The top five U.S. cities represented on the main watchlist for "known or suspected terrorists" are New York; Dearborn, Mich.; Houston; San Diego; and Chicago. At 96,000 residents, Dearborn is much smaller than the other cities in the top five, suggesting that its significant Muslim population—40 percent of its population is of Arab descent, according to the U.S. Census Bureau—has been disproportionately targeted for watchlisting.

Beyond this nearly-suspicionless watchlisting, there's further privacy concerns, prompted by the addition of millions of pieces of biometric data from American citizens, something that ramped up immediately following the Boston Bombing.

In the aftermath of last year's Boston Marathon bombing, the Directorate of Terrorist Identities began an aggressive program to collect biometric data and other information on all Americans on the TIDE list. "This project includes record by record research of each person in relevant Department of State and [intelligence community] databases, as well as bulk data requests for information," the documents note.

The DTI also worked on the subsequent Chicago Marathon, performing "deep dives" for biometric and other data on people in the Midwest whose names were on the TIDE list. In the process, the directorate pulled the TIDE records of every person with an Illinois, Indiana, or Wisconsin driver license.

That the many agencies tasked with counterterrorism are operating on instinct rather than articulable suspicion is nothing surprising. The large number of people with "no known terrorist affiliation" being added to a terrorist watchlist is the natural progression of bad policies with 12 years of momentum behind them.

As an additional note, it appears the US government attempted to "scoop" The Intercept by leaking a much more friendly recap of the leaked watchlist details to the AP, at least according to the this tweet by Jeremy Scahill, one of the post's authors.

US government, pissed we were publishing our story, tried to undermine us by leaking it to other news organization right before we published

— jeremy scahill (@jeremyscahill) August 5, 2014

If you can't read the tweet, it says:

US government, pissed we were publishing our story, tried to undermine us by leaking it to other news organization right before we published

A look at the AP piece seems to confirm this, as it presents something more akin to press release than a serious dive into the numbers. (More confirmation at the Huffington Post. The government claims its scoop "theft" was a "mistake.") It also makes no mention of the information appearing at The Intercept first. The AP's "story" presents this as mostly a triumph by the government, with only the briefest aside about privacy or civil liberties concerns.

This excerpt is indicative of the (very short) article's credulousness:

The database's growth is a result of the government's response to a failed attempt to blow up a commercial airliner over Detroit on Christmas Day in 2009. The terror operative's name was included in the database before the attack, but it was not on a list that would have prevented him from getting on a U.S.-bound airplane. Since then, the government has lowered the standards for placing someone on the no-fly list and intelligence agencies have become more diligent about submitting names to the TIDE database.

The database was created after the 9/11 terror attacks when it became clear that the government's terror watch list was ineffective. The watch list was once maintained in a rolodex and in paper notebooks, according to redacted photographs provided by the National Counterterrorism Center.

And here's the entirety of the "discussion" about the possible negative of an inflated, nearly-suspicionless watchlist of terrorist suspects.

The government does not need evidence that links someone to terrorism in order for the person to be included in the database. This is among the reasons the database and subsequent terror watch lists have been criticized by privacy advocates.

The AP says it has "learned," but it looks more like it was handed some talking points and an ultra-tight deadline. With thousands of news outlets pulling in the AP feed, this will allow the government to get out ahead of the leak, or at the very least, present a cohesive media presence that presents a "fair" portrayal of its out-of-control counterterrorism databases.

Filed Under: dhs, homeland security, terrorist watchlist, terrorists, tsdb, watchlist

Why Was The DOJ So Fearful Of Its Terrorist Watchlist Guidelines Being Made Public?

from the not-because-it-helps-terrorists dept

Having already discussed The Intercept's publication of the federal government's guidelines for declaring people terrorists to put on its various watchlists (including the infamous "no fly list"), it's raising some serious questions about why the DOJ had been fighting so hard to keep these guidelines from coming out. As we've discussed, in basically any case challenging the various government watchlists, the DOJ has freaked out and claimed "state secrets" to try to get the cases thrown out entirely.

Just a few months ago, Attorney General Eric Holder directly claimed that revealing these guidelines would be helping the terrorists. In that legal filing, Holder does the "state secrets" dance and then says:

I agree with the FBI that the Watchlisting Guidance, although unclassified, contains national security information that, if disclosed, for the reasons discussed in the FBI's classified declaration, could cause significant harm to national security.... If the Guidance were released, it would provide a clear roadmap to undermine the Government's screening efforts, a key counterterrorism measure, and thus, its disclosure reasonably could be expected to cause significant harm to national security.

Of course, now that the Watchlisting Guidance is out, we can take a look and see if that's actually true. And... Holder's statements, not surprisingly, appear to be completely bogus. The Guidelines are so vague and so broad that it gives no real indication of how to get around them or whether or not any particular person is likely to be placed on the list.

What the guidelines do show, however, is the level of extra scrutiny people on the list are subject to. And, as we noted, much of that certainly appears to violate the 4th Amendment (or, at the very least, open itself up to a pretty clear 4th Amendment challenge in the courts). So, once again, it seems like Holder's real reason to declare "state secrets" had little to do with "national security" and a hell of a lot to do with "DOJ security" in keeping its illegal and unconstitutional practices from further public and judicial scrutiny.

Filed Under: doj, eric holder, no fly list, terrorism watchlist, terrorist, tsdb, watchlist, watchlisting guidance

Revealed: What Kind Of 'Extra Scrutiny' The Government Gives To Folks On The Terrorist Watchlist

from the we're-about-to-go-through-your-lives dept

We've already written about The Intercept's publication of the US government's guidelines for declaring you a possible terrorist subject to extra scrutiny whenever you run into a government official. But we wanted to do a second post on the part that focuses on just what kind of extra scrutiny you get if you're on the list. Basically, it's dig through every aspect of this person's life that you can:

In addition to data like fingerprints, travel itineraries, identification documents and gun licenses, the rules encourage screeners to acquire health insurance information, drug prescriptions, “any cards with an electronic strip on it (hotel cards, grocery cards, gift cards, frequent flyer cards),” cellphones, email addresses, binoculars, peroxide, bank account numbers, pay stubs, academic transcripts, parking and speeding tickets, and want ads. The digital information singled out for collection includes social media accounts, cell phone lists, speed dial numbers, laptop images, thumb drives, iPods, Kindles, and cameras. All of the information is then uploaded to the TIDE database.

Screeners are also instructed to collect data on any “pocket litter,” scuba gear, EZ Passes, library cards, and the titles of any books, along with information about their condition—”e.g., new, dog-eared, annotated, unopened.” Business cards and conference materials are also targeted, as well as “anything with an account number” and information about any gold or jewelry worn by the watchlisted individual. Even “animal information”—details about pets from veterinarians or tracking chips—is requested. The rulebook also encourages the collection of biometric or biographical data about the travel partners of watchlisted individuals.

In the wake of last month's Wurie decision at the Supreme Court, I'm curious how much of that is now violating the subject's 4th Amendment rights... It seems likely that at least someone is going to challenge these rules.

Filed Under: extra scrutiny, no fly list, terrorism, terrorists, tsa, tsdb, watchlist

The Intercept Reveals The US Government's Guidebook For Declaring You're A Terrorist Or Putting You On The No Fly List

from the because-you-just-might-be-a-terrorist dept

Jeremy Scahill and Ryan Deveraux, over at The Intercept have a giant scoop: the full 166-page guidebook that US law enforcement uses to declare someone a terrorist who deserves to be on one of its various watchlists from the no-fly list to the "terrorist screening database." We've had plenty of stories about the no fly list and the TSDB, and the ridiculous lengths that the US government has gone to to keep anyone from knowing if or why they're in any of these databases -- leading to a series of lawsuits from individuals who were put on that list under very questionable circumstances.

We were happy last month to see that the process for getting off of these watchlists was declared unconstitutional, but the lawsuits over these watchlists suggest that they are prone to abuse and error. We were particularly disturbed to find out in a recent lawsuit that the US government actually has a secret exception to reasonable suspicion for putting people on the list.

The document released by The Intercept is quite revealing, and shows that President Obama has massively expanded the criteria for getting people onto the list. In fact, as the report notes, the President "quietly approved" an expansion "authorizing a secret process that requires neither “concrete facts” nor “irrefutable evidence” to designate an American or foreigner as a terrorist."

The new guidelines allow individuals to be designated as representatives of terror organizations without any evidence they are actually connected to such organizations, and it gives a single White House official the unilateral authority to place “entire categories” of people the government is tracking onto the no fly and selectee lists. It broadens the authority of government officials to “nominate” people to the watchlists based on what is vaguely described as “fragmentary information.” It also allows for dead people to be watchlisted.

As you might imagine, given all the stories about people being put on various watchlists even though they're clearly not terrorists, the guidelines are crazy expansive:

The document’s definition of “terrorist” activity includes actions that fall far short of bombing or hijacking. In addition to expected crimes, such as assassination or hostage-taking, the guidelines also define destruction of government property and damaging computers used by financial institutions as activities meriting placement on a list. They also define as terrorism any act that is “dangerous” to property and intended to influence government policy through intimidation.

And obviously this goes way beyond just boarding (or not boarding) airplanes. As the report notes, if you're pulled over for speeding and the police run your name, if you're on the watchlist, the police will get a notification, leading them to automatically think that you're a suspected terrorist. The guidelines also contradict themselves directly. At first it says that:

To meet the REASONABLE SUSPICION standard, the NOMINATOR, based on the totality of the circumstances, must rely upon articulable intelligence or information which, taken together with rational inferences from those facts, reasonably warrants a determination that an individual is known or suspected to be or has been knowingly engaged in conduct constituting, in preparation for, in aid of, or related to TERRORISM and/or TERRORIST ACTIVITIES.

Okay. So you need to have a factual basis for reasonable suspicion, right? Wrong:

In determining whether a REASONABLE SUSPICION exists, due weight should be given to the specific reasonable inferences that a NOMINATOR is entitled to draw from the facts in light of his/her experience and not on unfounded suspicions or hunches. Although irrefutable evidence or concrete facts are not necessary, to be reasonable, suspicion should be as clear and as fully developed as circumstances permit.

So, it can't just be a hunch. It has to be a really good hunch seems to be the lesson.

The report also likely reveals the "secret" exceptions to reasonable suspicion that the judge refused to reveal in the Rahinah Ibrahim case we wrote about. She was kept on the watchlist despite there being no reasonable suspicion. One of the exceptions is the "family member" loophole (which some had suggested was likely the issue in the comments to our story about Ibrahim). But it appears the exceptions are much broader:

There are a number of loopholes for putting people onto the watchlists even if reasonable suspicion cannot be met.

One is clearly defined: The immediate family of suspected terrorists—their spouses, children, parents, or siblings—may be watchlisted without any suspicion that they themselves are engaged in terrorist activity. But another loophole is quite broad—”associates” who have a defined relationship with a suspected terrorist, but whose involvement in terrorist activity is not known. A third loophole is broader still—individuals with “a possible nexus” to terrorism, but for whom there is not enough “derogatory information” to meet the reasonable suspicion standard.

And then there's the fact that the new "threat-based expedited upgrade" program, which was put in place following the US failing to notice that the famed "underwear bomber" got on his plane despite being on the watchlist. So, rather than recognize that the list was broken, the administration just added a new category, allowing a single White House official the unilateral power to elevate entire "categories of people" into a special list for extra scrutiny.

This extraordinary power for “categorical watchlisting”—otherwise known as profiling—is vested in the assistant to the president for homeland security and counterterrorism, a position formerly held by CIA Director John Brennan that does not require Senate confirmation.

The rulebook does not indicate what “categories of people” have been subjected to threat-based upgrades. It is not clear, for example, whether a category might be as broad as military-age males from Yemen. The guidelines do make clear that American citizens and green card holders are subject to such upgrades, though government officials are required to review their status in an “expedited” procedure. Upgrades can remain in effect for 72 hours before being reviewed by a small committee of senior officials. If approved, they can remain in place for 30 days before a renewal is required, and can continue “until the threat no longer exists.”

Basically, as most people suspected, it appears the government has broad and, until now, secret powers to effectively ruin someone's life by placing them on one of these watchlists... with no legitimate way to get off.

Filed Under: dhs, doj, guidebook, no fly list, reasonable suspicion, terorrism, terrorist watchlist, tsdb, us government, watchlist