Of all that I read, Jaffer’s comment below (bold, emphasis mine) is the most telling and disturbing.
Indeed, the government’s ability to monitor such high-profile Muslim-Americans—with or without warrants—suggests that the most alarming and invasive aspects of the NSA’s surveillance occur not because the agency breaks the law, but because it is able to exploit the law’s permissive contours. “The scandal is what Congress has made legal,” says Jameel Jaffer, an ACLU deputy legal director. “The claim that the intelligence agencies are complying with the laws is just a distraction from more urgent questions relating to the breadth of the laws themselves.”
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Richard Clarke, a former counterterrorism official in the Clinton and Bush administrations, served on the recent White House intelligence review panel convened to address concerns raised by the Snowden revelations. If he had seen the NSA spreadsheet, Clarke says, he would have asked more questions about the process, and reviewed individual FISA warrants. [Emphasis mine, JH]
“Knowing that, I would specifically ask the Justice Department: How many American citizens are there active FISAs on now?” he says. “And without naming names, tell me what categories they fall into—how many are counterterrorism, counterintelligence, espionage cases? We’d want to go through [some applications], and frankly, we didn’t. It’s not something that five part-time guys can do—rummage through thousands of FISA warrants.”
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Asked whether he believes he would have been monitored by the NSA if he were not Muslim, Gill is blunt. “Absolutely not,” he says. “Look, I’ve never made an appearance or been a lawyer for anyone who’s been [associated with terrorism]. But there are plenty of other lawyers who have made those appearances and actually represented those governments, and their name isn’t Faisal Gill and they weren’t born in Pakistan and they aren’t on this list.”
Gill says he is deeply concerned by what the NSA was able to collect. “I’m sure there was private stuff with my wife where we were arguing about stuff, as well as emails of a more private nature,” he says. “Things that obviously I don’t want anyone looking at.”
Gill knows he faces a personal and professional risk in agreeing to discuss the government’s surveillance of his emails. “Maybe people will say, ‘Hey he was being surveilled—the government must have some reason for doing it, especially if there’s a FISA warrant.’ [Emphasis mine, JH] There will be a lot of folks who will say it was justified and there’s something there. I’m sure it’ll have some sort of negative impact with clients, and who knows what else.”
Despite those concerns, Gill agreed to discuss the surveillance. “The real reason I’m talking to you is that I don’t have anything to hide,” he says. “I didn’t do anything wrong. I served my country, the whole time.”
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Even if the government obtained FISA warrants to monitor some or all of the five Muslim-Americans, the law’s standards do not always appear to be applied uniformly. More than a dozen former and current law enforcement officials contacted by The Intercept say that the process for seeking a FISA warrant is so bureaucratically complex and larded with privacy safeguards that it is essentially inviolate. If the surveillance court approved a warrant, they say, then the target must have deserved it.
“The Justice Department was notoriously difficult to get a FISA warrant through,” says [Marion] Bowman, the top FBI lawyer for national security matters from 1995 to 2006. “They always wanted more than probable cause. And so they would frequently, at least 50 percent of the time, send it back [to the FBI] with questions.”
According to Bowman, whose office handled all requests for domestic FISA surveillance throughout the intelligence community, requests for warrants involve multiple stages of approval. Starting at an FBI field office, a request moves up through FBI supervisory agents at headquarters and attorneys at the bureau’s National Security Branch, then on to the Justice Department’s Office of Intelligence—with the various gatekeepers frequently rejecting applications or sending them back for further review. It is only once all the hurdles have been cleared, Bowman says, that the Justice Department prepares a formal application “package” for a judge with the Foreign Intelligence Surveillance Court.
Those packages, Bowman says, range anywhere from 35 to 150 pages. The warrant applications are supposed to establish probable cause that a target is an agent of a foreign power and is engaged in—or about to engage in—one of what Bowman calls the “three crimes” spelled out by the FISA statute: an actual or potential attack or other grave hostile act, sabotage or international terrorism, or clandestine intelligence activities. The standard for probable cause used by the court, Bowman adds, is “more than a suspicion, but less than a certainty.”
Taken together, he says, the hurdles and safeguards prevent any potential abuse. “I’ve never seen the FBI in my experience in the 11 years I was there, ever begin an investigation strictly on political issues,” Bowman says.
But one former law enforcement official paints a different picture of the process. FISA judges who approve the warrants, he says, often rely implicitly on the claims of the agents seeking them. “I got a lot of warrants signed by a judge at 2 a.m., in his pajamas in his living room. The judge would size you up, and if he believed you that you had probable cause, he would sign the warrant.”
One current senior federal prosecutor who has participated in high-level counterterrorism and intelligence cases also describes a looser standard for obtaining a FISA warrant. The process, he says, requires only that the government establish probable cause that the target meets a broad definition as an “agent of a foreign power”—not that they are actually engaged in terrorism, espionage, sabotage, or other criminal activity.
“If you are dealing with a foreign power, I don’t think you have any choice,” says the prosecutor. “I don’t believe it is realistic to say that you can only get a FISA when you have probable cause that an agent of a foreign power is committing a crime—because you’ll never know. And often the best way to figure out what is going on is not to prosecute them criminally, but to just watch what they do.”
Such a standard, law enforcement officials say, takes advantage of what amount to loopholes in the FISA law, which requires that warrants demonstrate probable cause that an agent of a foreign power is engaged in activities that “involve or may involve” criminal activity, are “about to involve” criminal activity, or constitute aiding someone who is. In a statement to The Intercept, an NSA spokesperson confirmed that warrants must demonstrate probable cause that targets “are or may be engaged in certain criminal activity … on behalf of a foreign power.”
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Whatever the merits of the process, it is clear that at least some of the law enforcement officials involved in it harbored conspiratorial and bigoted views about Americans of Muslim descent. John Guandolo, the former counterterrorism agent who was active at the time several of the five identified Americans were monitored, provides a candid view of that mindset. Asked by The Intercept about the men, he responded with a series of uncorroborated accusations, suggesting that many of them are part of a vast Muslim conspiracy to infiltrate and topple the United States from within.
To hear Guandolo tell it, Faisal Gill, the former homeland security official under Bush, was “a major player in the Muslim Brotherhood in the United States.” Asim Ghafoor, Gill’s fellow attorney, is “a jihadi” who was “directly linked to Al Qaeda guys” simply because of his representation of the Al Haramain Foundation. “He had knowledge of who they were and what they were doing,” Guandolo says. (Such logic would subject every lawyer representing defendants accused of terrorism to government surveillance.) To Guandolo, Agha Saeed was yet another secret operative for the Muslim Brotherhood. “He’s a pretty senior guy with them,” Guandolo says, “affiliated with several groups.” (“That’s a big lie,” Saeed says, “and given my life history, absurd” because he has “always been a leftist.”)