The NSA wasn't the only one snooping on ordinary Americans.
- By Shane Harris
Shane Harris is a senior staff writer at Foreign Policy, covering intelligence and cyber security. He is the author of The Watchers: The Rise of America's Surveillance State, which chronicles the creation of a vast national security apparatus and the rise of surveillance in America. The Watchers won the New York Public Library’s Helen Bernstein Book Award for Excellence in Journalism, and the Economist named it one of the best books of 2010. Shane is the winner of the Gerald R. Ford Prize for Distinguished Reporting on National Defense. He has four times been named a finalist for the Livingston Awards for Young Journalists, which honor the best journalists in America under the age of 35. Prior to joining Foreign Policy, he was the senior writer for The Washingtonian and a staff correspondent at National Journal.
Believe it or not, some officials at the National Security Agency are breathing a sigh of relief over Glenn Greenwald’s new exposé on the government’s secret surveillance of U.S. citizens. That’s because it’s the FBI that finds itself in the cross-hairs now, in a story that identifies by name five men, including prominent Muslim American civil rights activists and lawyers, whose emails were monitored by the FBI using a law meant to target suspected terrorists and spies. The targets of the spying allege that they were singled out because of their race, religion, and political views — accusations that, if true, would amount to the biggest domestic intelligence scandal in a generation and eclipse any of the prior year’s revelations from documents provided by leaker Edward Snowden.
After a year in which the digital spies at the NSA have taken unrelenting heat on Capitol Hill and in the media, it’s rare for the FBI to come under scrutiny — and that’s surprising, given the central role that the bureau plays in conducting surveillance operations, including all secret intelligence-gathering aimed at Americans inside the United States. "It’s an important point of distinction that it was the FBI directing this, not the NSA," said a former senior intelligence official, welcoming the shift in focus away from the beleaguered spy agency to its often-overlooked partner.
Ever since the 9/11 attacks, the FBI has been frequently cast as the judicious and measured army of the war on terror, the home to interrogation experts who know how to coax secrets out of detained terrorists without resorting to the "enhanced techniques" of the CIA. But now, the FBI, and with it the Justice Department, finds itself exposed for spying on Americans who were never accused of any crime, and in the position of having to defend and explain its reasoning for taking that intrusive step.
Greenwald’s story is based on a spreadsheet purportedly compiled by the NSA showing individual surveillance targets, identified by their email addresses. (The government has neither confirmed nor denied the document’s authenticity.) NSA technology and personnel were undoubtedly used to monitor the targets’ email accounts, but the spreadsheet calls the FBI the "responsible agency" for surveilling the five men named in the story — as it would be for any targets located inside the United States.
All five, including an Iranian-American professor at Rutgers University and a prominent Muslim civil liberties leader, told the Intercept that they deny any involvement with terrorists or spies. None has been accused of terrorism, espionage, or any other crime. One, Faisal Gill, even held a senior position at the Department of Homeland Security in George W. Bush’s administration and was granted a government security clearance. What they do have in common is their Muslim heritage and Middle Eastern or South Asian extraction. And some of the men say that’s precisely why they were targeted.
"[T]he FBI has been mapping a broad spectrum of communities, including American Muslim communities, the African American community and Latino American communities, without any basis for individualized suspicion," the Council on American-Islamic Relations, whose executive director, Nihad Awad, was among the five men reportedly spied on by the FBI, wrote in a letter, co-signed by numerous civil rights groups, to President Barack Obama on Wednesday, July 9.
"What we’ve seen is mounting evidence of abuse," said former FBI agent Mike German, pointing to the latest revelations as well as a recent report in the Washington Post that examined the NSA’s so-called incidental collection of the communications of Americans swept up while the agency spied on foreigners.
"There needs to be a much more thorough investigation and much more transparency to ensure Americans that these programs are being operated in the way they’re being told and in the way that Congress and the courts are being told," said German, now a fellow at the Brennan Center for Justice’s Liberty and National Security Program in New York.
If the racial and religious profiling allegations prove true, the FBI would not only have broken the law, but it would be guilty of the worst intelligence abuses since the days of COINTELPRO, the covert and occasionally illegal spying programs that targeted American political activists, Vietnam War protesters, civil rights leaders, and even some U.S. government officials for their political associations and views. The ensuing scandal gave birth to the system of privacy laws that govern spying on Americans today.
But the article doesn’t provide that evidence. The spreadsheet came from the seemingly endless trove of classified government documents that Snowden, a former NSA contractor, has provided to reporters, including Greenwald. It apparently doesn’t include the individual applications for warrants that Justice Department attorneys may have submitted to the Foreign Intelligence Surveillance Court before collecting the men’s emails. "It is unclear whether the government obtained any legal permission to monitor the Americans on the list," wrote Greenwald and his co-author, Murtaza Hussain. And given that any government justification for spying is presumably classified, "it is impossible to know why their emails were monitored, or the extent of the surveillance," they wrote.
And there’s the rub. Absent the underlying presentations that FBI agents and Justice Department lawyers made to the court or to senior U.S. officials, it’s impossible to know what evidence the government believed justified reading the emails of five U.S. citizens. That doesn’t diminish the significance of the story in one respect: It’s practically unheard of for a target of intelligence surveillance to be publicly identified. Usually, the targets themselves never find out. But without clear evidence that the men were spied on because they’re of Muslim heritage, because they spoke out against government counterterrorism policies, or even because they represented individuals or groups accused of terrorism, as one lawyer did, the tale of the FBI spying is unlikely to provoke outrage on Capitol Hill or lead to any significant changes in U.S. surveillance law.
To bring more transparency to a historically secretive process, Congress is considering a bill that would require the intelligence surveillance court to hear challenges to the government’s warrant requests from an adversarial attorney, one appointed by the court and allowed to examine classified information. The Intercept story could give ammunition to the backers of that proposal. The story underscores how opaque the court process is to most Americans and even to lawmakers, German said. "There are some issues about the candor involved in these interactions between the government and the court," he added.
Government lawyers present their case, based largely off information collected by the FBI or the NSA. But a warrant application, which can number from 50 to 100 pages of material, is never made public, so it’s impossible to publicly evaluate the merits of the government’s argument. That has always been true, however, and is arguably essential to preserve the secrecy of covert intelligence operations. The system also has a significant check, defenders of the process point out: FBI agents and federal prosecutors can go to jail for misrepresenting facts to the court.
Supporters of the FBI saw not only an absence of evidence of illegal spying in the Intercept story, but said it was highly unlikely that the government would have based its suspicions of terrorist ties solely on the targets’ public speech or associations. Surveillance court judges, they said, would never approve a warrant based on activities protected by the First Amendment.
The Justice Department and the Office of the Director of National Intelligence were quick to categorically deny the central allegations of the monitored men. "It is entirely false that U.S. intelligence agencies conduct electronic surveillance of political, religious or activist figures solely because they disagree with public policies or criticize the government, or for exercising constitutional rights," the agencies said in a joint statement.
Without acknowledging that the FBI collected the men’s emails or whether a court approved the spying, the statement noted that the government, except for limited cases like emergencies, must obtain a court order "to target any U.S. citizen or lawful permanent resident for electronic surveillance." And that permission only comes following a showing of "probable cause, based on specific facts … that the person is an agent of a foreign power, a terrorist, a spy, or someone who takes orders from a foreign power," the statement said.
The former senior intelligence official said it would be illegal to monitor any of the five men simply because of their jobs or political affiliations. "Someone might be the head of a Muslim organization. But that cannot be the basis for suspicion" used to obtain a surveillance warrant, the former official said. "You have to make the case. You have to have probable cause. It can’t be a fishing expedition."
Stewart Baker, who was the NSA’s general counsel in the early 1990s, echoed that prohibition and added that the mere fact of someone’s profession isn’t proof that he was unfairly or illegally targeted. "Just because someone is a senior official at the Council on American-Islamic Relations doesn’t answer the question of whether there’s probable cause" to suspect him of terrorism or espionage, Baker said. "But it’s not proof that he must be a victim of a witch hunt."
Ultimately, the FBI may not have to offer any public evidence of why it targeted the five men. Lawmakers on Wednesday showed no immediate signs that they were eager to hold hearings or grill the bureau and the Justice Department on the standards it uses in presenting evidence to the surveillance court — in this case or any others.
Rep. Michael Rogers, the chairman of the House Intelligence Committee and a former FBI agent, questioned how one spreadsheet showing a list of email addresses could lead to any definitive answers about FBI spying. "They’re basing conclusions on a slide," Rogers said in an interview.