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Subscribe to this list via RSS Blog posts tagged in FBI

Posted by on in Surveillance

BY: CAIR Government Affairs Manager Robert McCaw, 202-999-8292, [email protected]

According a U.S. Department of Justice (DOJ) report released today on the “FBI’s Use of Section 215 Orders for Business Records in 2006,” the United States Foreign Intelligence Surveillance Court (FISA Court) twice refused to authorize Section 215 requests by the FBI “based on concerns that the investigation was premised on protected First Amendment activity, and the FBI subsequently issued [National Security Letters] NSLs to obtain information” about American citizens built on the same premise rejected by the Court.[1]

Under Section 215 of the U.S. Patriot Act, the FBI is authorized to apply to the FISA Court to review applications for warrants related to national security investigations.

Critics of the FISA Court have noted that the court effectively acts as a rubber stamp only rejecting .03 percent of all government surveillance requests, according to the Wall Street Journal.[2]

In emails between the DOJ's Office of Intelligence Policy and Review (OIPR) and FBI’s National Security Law Branch, it is reported that the FISA Court decided that “the facts were too ‘thin’ and that this request implicated the targets First Amendment rights.”

The report cites a former counsel for intelligence policy who stated the OIPR should have subsequently examined the FBI’s underlying investigation after the FISA Court rejected the Section 215 request but that it was stretched too thin to “serve such an oversight role.”

An internal FBI audit in 2007 found that the “bureau potentially violated the law or agency rules more than 1,000 times while collecting data about domestic phone calls, e-mails and financial transactions in recent years,” according to The Washington Post.[3]

It is deeply troublesome that the FBI would pursue national security investigations of American citizens “premised on protected First Amendment activity.” It is even more disconcerting that the FBI would use NSLs to obtain such information after the FISA Court refused to authorize a warrant, given the Court’s near 100 percent approval of such requests.

The DOJ’s OIPR lack of ability to examine the FBI’s underlying investigation at the time of the request due stretched resources also raises serious questions about how well the Office is able to protect the civil liberties of Americans.

The DOJ’s Office of the Inspector General report only labels such possible FBI violations of the law as “noteworthy” cases. The report does not provide any substantive recommendations to address these possible FBI abuses – unless such suggestions were made in one of the heavily redacted sections.​

[1] U.S. Department of Justice Office of the Inspector General “A Review of the FBI’s Use of Section 215 Orders for Business Records in 2006 (U),” 2014. Report was requested by Congress via the USA PATRIOT Improvement and Reauthorization Act of 2005.

2 Wall Street Journal, “Secret Court's Oversight Gets Scrutiny,” Evan Perez June 9, 2013. Website: http://www.wsj.com/articles/SB10001424127887324904004578535670310514616

3 The Washington Post, “FBI Finds It Frequently Overstepped in Collecting Data,” John Solomon, June 14, 2007. Website: http://www.washingtonpost.com/wp-dyn/content/article/2007/06/13/AR2007061302453.html

 

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Posted by on in Entrapment
By Rachel Roberts

As details emerge about Matthew Aaron Llenaza, the San Jose man arrested for plotting terrorism at the behest of an undercover FBI agent, we have learned that Mr. Llenaza had a history of bipolar disorder and psychosis. This newly publicized information about Mr. Llenaza casts doubt on the portrait the FBI has drawn of its suspect, whom they characterize as a shrewd and calculating Taliban sympathizer intent on doing harm to the United States. It also raises concerns about the FBI using public resources to thwart plots that it is, in fact, concocting on its own. 

But these new details about Mr. Llenaza highlight something not often talked about in the mainstream discourse about counterterrorism efforts: its effects on the mentally ill.

Our organization, the Council on American-Islamic Relations, has offered legal representation and advice to hundreds of American Muslims who were approached by FBI and other law enforcement agents purportedly for terrorism-related investigations in recent years. 

Our California offices have received several complaints from family members of mentally ill Muslims that the FBI or a cooperating agency expressed a need to question their disabled loved one as part of a terrorism investigation. The reason given was that the subject had exhibited some "suspicious behavior."  In several such cases, law enforcement agents conducted multiple interviews with mentally ill individuals without an attorney present. 

Family members reported that law enforcement agents asked questions about religion and geopolitics, which were met with answers that, although wild and often incoherent, could be misconstrued as support for violence against the U.S and be used as a basis to further target that subject.

These interviews, when coupled with the generally pervasive fear American Muslims have of terrorism accusations, have also resulted in exacerbating the illnesses of the Muslims approached.  We know of cases in which mentally ill Muslims have suffered psychotic episodes and have even attempted suicide after interactions with law enforcement.

Because mental disabilities often result in an inability to control physical behavior and speech, interviews that take place in this context have the potential not only to unfairly incriminate an innocent suffering person, but to mislead law enforcement and waste public resources on those who need treatment, not criminal penalties for crimes they would never have the capacity to commit.

In many of the prominent terrorism trials of the past decade, the Muslim defendants who worked with FBI and law enforcement agents to plan or attempt to carry out attacks on the U.S. also had histories of mental illness.

For example in the trial of the Newburgh Four, a group of Muslim men were lured by an informant bearing expensive gifts into plotting to blow up synagogues in the Bronx, NY and shoot down a military jet. One of the defendants, Laguerre Payen, who suffered from schizophrenia, was repeatedly disruptive during his trial and engaged the judge in a rambling dialogue about his conviction at the time of his sentencing.

In another case, Ahmad Ferhani, unemployed and in and out of mental institutions for many years, was convicted of plotting to blow up synagogues after being approached by an informant linked to the New York City Police Department.

The pressure on law enforcement to produce results for counterterrorism efforts, especially when combined with anti-Muslim training that characterizes Muslims as unhinged and bent on destroying the U.S., has the potential to criminalize those members of the community most in need of the system's protections.

That the entrapment defense has failed in every terrorism trial in the past dozen years despite clear government overreach highlights how our criminal laws have not been able to overcome the climate of fear that permeates our post-9/11 world.

Law enforcement agencies must take steps to implement ethical standards when they interact with members of the public, Muslim or not, who have been diagnosed with or who exhibit signs of mental illness.

Law enforcement should also focus their efforts on those who have already taken an affirmative step toward committing a terrorism-related crime. According to a recent article in Mother Jones, an FBI informant led one of every three terrorist plots foiled, and also provided all the necessary weapons, money, and transportation to people who ordinarily would not have the resources, intellectual or material, to carry out attacks.

As a society, we have much to learn about how we care for and treat the mentally ill. Scapegoating them for crimes or subjecting them to heightened scrutiny simply for being members of their religious community is a step backward.

Rachel Roberts is an attorney and the civil rights coordinator for CAIR's Northern California offices.

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