The National Security Agency and
FBI have covertly monitored the emails of prominent
Muslim-Americans—including a political candidate and several civil
rights activists, academics, and lawyers—under secretive procedures
intended to target terrorists and foreign spies.
According to documents provided by NSA whistleblower Edward Snowden,
the list of Americans monitored by their own government includes:
• Faisal Gill, a longtime Republican Party operative and one-time
candidate for public office who held a top-secret security clearance and
served in the Department of Homeland Security under President George W.
Bush;
• Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases;
• Hooshang Amirahmadi, an Iranian-American professor of international relations at Rutgers University;
• Agha Saeed, a former political science professor at California
State University who champions Muslim civil liberties and Palestinian
rights;
• Nihad Awad, the executive director of the Council on
American-Islamic Relations (CAIR), the largest Muslim civil rights
organization in the country.
The individuals appear on an NSA spreadsheet in the Snowden archives
called “FISA recap”—short for the Foreign Intelligence Surveillance Act.
Under that law, the Justice Department must convince a judge with the
top-secret Foreign Intelligence Surveillance Court that there is
probable cause to believe that American targets are not only agents of
an international terrorist organization or other foreign power, but also
“are or may be” engaged in or abetting espionage, sabotage, or
terrorism. The authorizations must be renewed by the court, usually
every 90 days for U.S. citizens.
The spreadsheet shows 7,485 email addresses listed as monitored
between 2002 and 2008. Many of the email addresses on the list appear to
belong to foreigners whom the government believes are linked to Al
Qaeda, Hamas, and Hezbollah. Among the Americans on the list are
individuals long accused of terrorist activity, including Anwar
al-Awlaki and Samir Khan, who were killed in a 2011 drone strike in
Yemen.
But a three-month investigation by
The Intercept—including
interviews with more than a dozen current and former federal law
enforcement officials involved in the FISA process—reveals that in
practice, the system for authorizing NSA surveillance affords the
government wide latitude in spying on U.S. citizens.
The five Americans whose email accounts were monitored by the NSA and
FBI have all led highly public, outwardly exemplary lives. All five
vehemently deny any involvement in terrorism or espionage, and none
advocates violent jihad or is known to have been implicated in any
crime, despite years of intense scrutiny by the government and the
press. Some have even climbed the ranks of the U.S. national security
and foreign policy establishments.
“I just don’t know why,” says Gill, whose AOL and Yahoo! email
accounts were monitored while he was a Republican candidate for the
Virginia House of Delegates. “I’ve done everything in my life to be
patriotic. I served in the Navy, served in the government, was active in
my community—I’ve done everything that a good citizen, in my opinion,
should do.”
(An
Intercept video interview with Gill is below, as are videos of Ghafoor and Awad. They were directed by Nadia Hallgren and
Intercept co-founder Laura Poitras.)
The National Security Agency and
FBI have covertly monitored the emails of prominent
Muslim-Americans—including a political candidate and several civil
rights activists, academics, and lawyers—under secretive procedures
intended to target terrorists and foreign spies.
According to documents provided by NSA whistleblower Edward Snowden,
the list of Americans monitored by their own government includes:
• Faisal Gill, a longtime Republican Party operative and one-time
candidate for public office who held a top-secret security clearance and
served in the Department of Homeland Security under President George W.
Bush;
• Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases;
• Hooshang Amirahmadi, an Iranian-American professor of international relations at Rutgers University;
• Agha Saeed, a former political science professor at California
State University who champions Muslim civil liberties and Palestinian
rights;
• Nihad Awad, the executive director of the Council on
American-Islamic Relations (CAIR), the largest Muslim civil rights
organization in the country.
The individuals appear on an NSA spreadsheet in the Snowden archives
called “FISA recap”—short for the Foreign Intelligence Surveillance Act.
Under that law, the Justice Department must convince a judge with the
top-secret Foreign Intelligence Surveillance Court that there is
probable cause to believe that American targets are not only agents of
an international terrorist organization or other foreign power, but also
“are or may be” engaged in or abetting espionage, sabotage, or
terrorism. The authorizations must be renewed by the court, usually
every 90 days for U.S. citizens.
The spreadsheet shows 7,485 email addresses listed as monitored
between 2002 and 2008. Many of the email addresses on the list appear to
belong to foreigners whom the government believes are linked to Al
Qaeda, Hamas, and Hezbollah. Among the Americans on the list are
individuals long accused of terrorist activity, including Anwar
al-Awlaki and Samir Khan, who were killed in a 2011 drone strike in
Yemen.
But a three-month investigation by
The Intercept—including
interviews with more than a dozen current and former federal law
enforcement officials involved in the FISA process—reveals that in
practice, the system for authorizing NSA surveillance affords the
government wide latitude in spying on U.S. citizens.
The five Americans whose email accounts were monitored by the NSA and
FBI have all led highly public, outwardly exemplary lives. All five
vehemently deny any involvement in terrorism or espionage, and none
advocates violent jihad or is known to have been implicated in any
crime, despite years of intense scrutiny by the government and the
press. Some have even climbed the ranks of the U.S. national security
and foreign policy establishments.
“I just don’t know why,” says Gill, whose AOL and Yahoo! email
accounts were monitored while he was a Republican candidate for the
Virginia House of Delegates. “I’ve done everything in my life to be
patriotic. I served in the Navy, served in the government, was active in
my community—I’ve done everything that a good citizen, in my opinion,
should do.”
(An
Intercept video interview with Gill is below, as are videos of Ghafoor and Awad. They were directed by Nadia Hallgren and
Intercept co-founder Laura Poitras.)
Given that the government’s justifications for subjecting Gill and
the other U.S. citizens to surveillance remain classified, it is
impossible to know why their emails were monitored, or the extent of the
surveillance. It is also unclear under what legal authority it was
conducted, whether the men were formally targeted under FISA warrants,
and what, if anything, authorities found that permitted them to continue
spying on the men for prolonged periods of time. But the five
individuals share one thing in common: Like many if not most of the
people listed in the NSA spreadsheet, they are of Muslim heritage.
“I believe that they tapped me because my name is Asim Abdur Rahman
Ghafoor, my parents are from India, I travelled to Saudi Arabia as a
young man, and I do the pilgrimage,” says Ghafoor, when told that no
non-Muslim attorneys who defended terror suspects had been identified on
the list. “Yes, absolutely I believe that had something to do with it.”
The FBI—which is listed as the “responsible agency” for surveillance
on the five men—has a controversial record when it comes to the ethnic
profiling of Muslim-Americans. According to FBI training materials
uncovered by Wired in 2011,
the bureau taught agents to treat “mainstream” Muslims as supporters of
terrorism, to view charitable donations by Muslims as “a funding
mechanism for combat,” and to view Islam itself as a “
Death Star” that must be destroyed if terrorism is to be contained.
John Guandolo, a former FBI counterterrorism official who takes
credit for developing a training program for agents on the “Muslim
Brotherhood and their subversive movement in the United States,” told
The Intercept
that he participated in investigations of some of the individuals whose
email accounts were monitored. Echoing the “red under every bed”
hysteria of the McCarthy era, Guandolo believes that “hundreds” of
covert members of the Muslim Brotherhood are active in the United
States, that some of them have succeeded in infiltrating the Pentagon,
and that CIA director John Brennan is a secret Muslim.
Other former and current federal officials say such beliefs are not
representative of the FBI or Justice Department. But blatant prejudice
against Muslim-Americans is also documented in the Snowden archive.
In one 2005 document, intelligence community personnel are instructed
how to properly format internal memos to justify FISA surveillance. In
the place where the target’s real name would go, the memo offers a fake
name as a placeholder: “Mohammed Raghead.”
The vast majority of individuals on the
“FISA recap” spreadsheet are not named. Instead, only their email
addresses are listed, making it impossible in most cases to ascertain
their identities. Under the heading “Nationality,” the list designates
202 email addresses as belonging to “U.S. persons,” 1,782 as belonging
to “non-U.S. persons,” and 5,501 as “unknown” or simply blank.
The Intercept identified the five Americans placed under surveillance from their email addresses.
It is unclear whether the government obtained any legal permission to
monitor the Americans on the list. The FBI and the Justice Department
declined to comment for this story. During the course of multiple
conversations with
The Intercept,
the NSA and the Office
of the Director of National Intelligence urged against publication of
any surveillance targets. “Except in exceptional circumstances,” they
argued, surveillance directly targeting Americans is conducted only with
court-approved warrants. Last week, anonymous officials told another
news outlet that the government did not have a FISA warrant against at
least one of the individuals named here during the timeframe covered by
the spreadsheet.
The FISA process was enacted in 1978 in response to disclosures that
J. Edgar Hoover and a long line of presidents from both parties had used
U.S. intelligence agencies to spy on dissidents and political enemies.
Intended to allow authorities to covertly investigate suspected spies or
terrorists on U.S. soil, the surveillance is often used simply to
gather intelligence, not to build a criminal case. The law was revised
in 2008—in part to place limits on the controversial program of
warrantless wiretaps initiated by George W. Bush after 9/11, and in part
to legalize the program’s warrantless eavesdropping on Americans when
they speak with foreign surveillance targets.
Under current law, the NSA may directly target a “U.S. person” (an
American citizen or legal permanent resident) for electronic
surveillance only with a warrant approved by the Foreign Intelligence
Surveillance Court. Because the FISC operates in complete secrecy—only
the Justice Department and the FBI are permitted to attend its
proceedings on domestic surveillance—it is impossible to assess how the
court applies the standard of “probable cause” in cases of suspected
terrorism or espionage. But its rulings are notoriously one-sided: In
its 35-year history, the court has approved 35,434 government requests
for surveillance, while rejecting only 12.
Law enforcement officials familiar with the FISA process told
The Intercept
that the FISC’s high approval rate is the result of a thorough vetting
process that weeds out weak applications before they reach the court.
The system, they added, seeks to balance what they consider to be the
essential role of surveillance in protecting national security with the
civil liberties of potential targets. The NSA issued a statement that
reads in part: “No U.S. person can be the subject of FISA surveillance
based solely on First Amendment activities, such as staging public
rallies, organizing campaigns, writing critical essays, or expressing
personal beliefs.”
A
selection from the FISA Recap spreadsheet; the highlighted entries are
email accounts belonging to Nihad Awad (the cair.com address) and Faisal
Gill (the Yahoo! and AOL addresses).
But legal experts have long expressed concern that the secretive
nature of the FISA process makes it impossible to know what level of
evidence is actually used to authorize surveillance, precisely what it
means to be an agent of a foreign power, or whether there is any
effective oversight to protect civil liberties. “We have very little
idea what this probable cause standard means in individual FISA cases,”
says Patrick Toomey, a staff attorney for the National Security Project
of the American Civil Liberties Union. “No FISA application or order has
ever been publicly disclosed, even to a criminal defendant or his
lawyer in cases where the government later brings charges based on that
FISA surveillance.”
A former Justice Department official involved in FISA policy in the
Obama Administration says the process contains too many internal checks
and balances to serve as a rubber stamp on surveillance of Americans.
But the former official, who was granted anonymity to speak candidly
about FISA matters, acknowledges that there are significant problems
with the process. Having no one present in court to contest the secret
allegations can be an invitation to overreach. “There are serious
weaknesses,” the former official says. “The lack of transparency and
adversarial process—that’s a problem.”
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.”
Government agencies have invoked a host of legal theories over the
years to justify spying on Americans without obtaining individual FISA
warrants. Prior to mid-2008, for example, the NSA could target Americans
when they were located on foreign soil simply by obtaining an
authorization from the attorney general. The NSA also relies on the
so-called “
FISA backdoor” to read the emails of Americans communicating with foreign targets without obtaining a warrant, and engages in the
bulk collection of “metadata”
from Internet service providers without individual warrants. In other
cases, it can obtain a warrant against an entire organization—and then
monitor the emails of individuals allegedly associated with the group.
While the NSA documents do not prove that the government has been
systematically monitoring the communications of political dissidents,
Jaffer notes that some of the most abusive surveillance practices
carried out by the FBI during the 1960s were arguably legal at a time
when many Americans believed that the groups targeted by Hoover’s
FBI—including anti-government activists on the left and right—posed a
threat to the country.
“Some of the government’s surveillance practices today are
reminiscent of those earlier abusive practices,” Jaffer says. “Today’s
American-Muslim activists occupy the same position that civil-rights and
anti-war activists occupied during the 1960s.”
Current
and former law enforcement officials reject that analogy, and say that
the FISA process is too rigorous to permit any abuse. Still, several
acknowledge that political speech is sometimes viewed as a sufficient
reason to launch an investigation that can culminate in full-blown
surveillance.
“If you are a political activist calling for violent jihad—yes, that
could trigger an investigation,” says Marion “Spike” Bowman, the top FBI
lawyer whose office handled all law enforcement requests for FISA
surveillance under the Clinton and Bush administrations. Bowman stresses
that such investigations are launched only when the bureau believes
that speech has crossed the line into incitement.
When Edward Snowden turned over a trove of NSA documents last year,
he explained that he included the spreadsheet of monitored emails
because he wanted to give people subjected to electronic surveillance
the opportunity to challenge the spying as unconstitutional. For years,
the government has succeeded in having such challenges dismissed on the
ground that the various plaintiffs lack standing to sue because they
could not prove that they were personally targeted.
Thanks to Snowden’s disclosures, those seeking to obtain such a
ruling now have specific cases of surveillance against American citizens
to examine. So do those charged with reforming the FISA process.
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.
“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.”
The “FISA recap” spreadsheet offers a revealing if incomplete glimpse
into the murky world of government surveillance. Each email address is
accompanied by a date that appears to denote the beginning of
surveillance, and another that indicates when it was set to expire. A
column called “Collection Status” indicates whether the surveillance was
“terminated,” “sustained,” or “pending” as of a particular date. In
some cases, the spreadsheet also names the federal agency that requested
the surveillance, and a terrorist group, target, or foreign power
affiliated with the email address. In addition, each address has a
corresponding “Case Notation” code beginning with the prefix “XX.SQF”—a
designation that,
according to other documents in the Snowden archive, is assigned to all “FISA accounts” as a unique identifier.
The five Americans whose email accounts were placed on the list come
from different backgrounds, and hold different religious and political
views. None was designated on the list as connected to a foreign power.
Some have come under sharp public scrutiny for their activities on
behalf of Muslim-Americans, and several have been investigated by the
government. But despite being subjected to what appears to be long
periods of government surveillance, none has been charged with a crime,
let alone convincingly linked to terrorism or espionage on behalf of a
foreign power. Taken together, their personal stories raise disturbing
questions about who the government chooses to monitor, and why.
Faisal Gill
Gill is an American citizen whose parents emigrated from Pakistan
when he was eight years old. He grew up in Northern Virginia, earned a
law degree from American University in 1996, and joined the U.S. Navy.
As a boy, he had dreamed of flying with the Blue Angels, but was
disqualified as a pilot for poor eyesight. Instead, he became a JAG
officer.
After leaving the Navy, Gill worked as a consultant for the American
Muslim Council, which was founded by the political activist Abdul Rahman
al-Amoudi to encourage participation by American Muslims in the
political process. A Republican since high school, Gill joined the Bush
Administration in the aftermath of 9/11, eventually moving to the White
House Office of Homeland Security, where he briefly worked with Richard
Clarke and obtained a top-secret security clearance. After roughly a
year, he joined the Department of Homeland Security as a senior policy
adviser, where he was cleared to access sensitive compartmented
information, a classification level reserved for some of the nation’s
most closely held secrets.
In 2003, al-Amoudi was arrested for participating in a Libyan plot to
assassinate Saudi Crown Prince Abdullah and for illegal financial
transactions with the Libyan government, crimes for which he eventually
pleaded guilty. Because Gill’s name had turned up in al-Amoudi’s papers,
he was investigated by DHS security officials and asked not to report
to work pending the outcome. He told investigators that he had met
al-Amoudi only three or four times and didn’t work closely with him
during his time at the American Muslim Council. After passing a
polygraph test, Gill says, he was told by DHS that he was “good to go”
and returned to work.
Not long after that incident,
Salon reporter Mary Jacoby
wrote an article accusing Gill
of failing to disclose his freelance work for the American Muslim
Council on his application for a security clearance. (The clearance form
asked for former employers; Gill, who had previously disclosed the
consulting job to the White House and on a separate publicly available
ethics disclosure, says he did not think he was being asked to list his
freelance work.) The DHS again investigated Gill, and again cleared him
of any wrongdoing. “Our investigation found no evidence to suggest that
you falsified or intentionally omitted relevant information,” the acting
inspector general informed Gill in a 2005 letter. He continued at DHS,
he says, with full security clearance.
After leaving the government, Gill founded a law firm with his friend
Asim Ghafoor. The NSA spreadsheet indicates that a year later, in April
2006, the email surveillance began. The agency apparently began
monitoring a second email account of Gill’s in May 2007, the year he
secured the Republican nomination for a seat in the Virginia House of
Delegates. During that campaign, hardline neoconservatives in his own
party—inspired by the work of the anti-Islamic pundit Frank
Gaffney—resurrected the accusations that Gill had concealed allegedly
nefarious ties to a Muslim group, provoking an outpouring of anti-Muslim
animus. With the GOP divided over Gill’s candidacy, he narrowly lost
the general election in November.
That same year, Gill and Ghafoor traveled to Sudan to meet with
government officials there about representing the country in U.S. court.
Many family members of victims of Al Qaeda terror attacks were suing
the government of Sudan for aiding the operations; the white-shoe law
firm Hunton & Williams was representing Sudan in similar litigation
over the USS Cole attack, and Ghafoor wanted to pitch his services on
the other cases. Ghafoor was ultimately retained, and Gill performed
contract work on one case.
While Gill and Ghafoor both ended up being surveilled, none of the
Hunton & Williams lawyers who represented Sudan appear to be listed
in the NSA spreadsheet. Also missing from the list is any apparent
mention of the multitude of American, non-Muslim politicians who have
represented foreign governments, including former House Majority Leader
Dick Gephardt (Turkey), former Senate Majority Leader Bob Dole (United
Arab Emirates), former Rep. Bob Livingston (Libya), and former Clinton
adviser Lanny Davis (Honduras post-coup).
Under U.S. law, Gill’s legal work for the Sudanese government could
not have been used to justify targeting him for surveillance, absent any
other evidence. “Representation of a foreign government in legal
matters by itself does not make a U.S. lawyer an agent of a foreign
power,” NSA spokesperson Vanee Vines said in a statement. According to
the NSA spreadsheet, Gill’s surveillance was terminated in February
2008.
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.’ 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.”
Asim Ghafoor
Ghafoor was born in St. Louis in 1969. A first-generation American
whose Muslim parents emigrated from India, he has been a lawyer for two
decades.
In 1997, Ghafoor worked for a Texas state representative, Ciro
Rodriguez, who won a special election to the U.S. Congress. Ghafoor
moved to Washington and became Rodriguez’s legislative assistant. At the
time, he says, he was only one of three Muslim staffers he knew of on
Capitol Hill.
Ghafoor left government shortly before 9/11 to become a public
relations consultant, lobbyist, lawyer, and civil rights advocate on
behalf of American Muslims. In the climate of anxiety after the attacks,
the need for representation and access for American Muslims in
Washington rapidly expanded. Ghafoor became a prominent
behind-the-scenes operator on Capitol Hill for the Muslim community.
In 2003, the Al Haramain Islamic Foundation, a Saudi charity, hired
Ghafoor after its U.S. assets were frozen by the Treasury Department
over claims that it funded terrorist operations. The government alleged
that there were “direct links” between the U.S. branch of the charity
and Osama bin Laden. Al Haramain had previously been represented by some
of the biggest and most prestigious American law firms, including the
D.C. powerhouse Akin Gump. Ghafoor’s work with Al Haramain led him to
other controversial clients, including Mohammed Jamal Khalifa, a
brother-in-law of Osama bin Laden who was the subject of FBI and CIA
surveillance for years, as well as the government of Sudan.
In 2004, during the Al Haramain litigation, the Treasury Department
accidentally provided one of the foundation’s lawyers with a top-secret
call log showing that the government had been eavesdropping on Ghafoor’s
calls with his clients. FBI agents quickly showed up to retrieve the
document, and they took Ghafoor’s laptop for a week to “scrub” it of any
trace of the classified information. At the time, neither Ghafoor nor
Wendell Belew, the other attorney whose conversations were monitored,
knew what to make of the log. The following year, when James Risen and
Eric Lichtblau of
The New York Times revealed the Bush Administration’s illegal wiretapping program, Ghafoor realized that his attorney-client conversations had been surveilled without a warrant.
“When I received a document that proved I had been tapped talking to
my clients, I was shocked beyond belief,” Ghafoor recalls. “It’s like
finding out there was a peeping tom. You just wonder: What else did they
violate?”
The attorneys and Al Haramain sued the U.S. government, claiming that
the eavesdropping violated their constitutional rights. After nearly
five years of litigation,
Ghafoor was awarded more than $20,000 in damages
and the government was ordered to pay his legal fees of $2.5 million.
Those judgments were later reversed on appeal, on the grounds that the
law does not explicitly entitle those targeted by surveillance to
damages from the government, even if they prove that the surveillance
was illegal.
Ghafoor with President George W. Bush and Hillary Clinton (photos courtesy Asim Ghafoor)
In a
2008 article that featured Ghafoor’s case, a Justice Department official told the
Times
that the government does not specifically target attorneys. “It’s not
as if we’re targeting the lawyer for surveillance,” the official said.
“It’s not like we’re eager to violate lawyer-client privilege. The
lawyer is just one of the people whose calls from the suspect are being
swept up.” Last February, in response to
revelations
that the NSA had monitored the communications of a U.S. law firm
representing the government of Indonesia, then-NSA chief Keith Alexander
assured the American Bar Association
that the “NSA has afforded, and will continue to afford, appropriate
protection to privileged attorney-client communications acquired during
its lawful foreign intelligence mission.”
In Ghafoor’s case, however, the NSA appears to have gone beyond
monitoring an attorney who represented clients in a case against the
U.S. government. During the time he was monitored, from March 2005 until
at least March 2008—at which point the NSA spreadsheet indicates that
his surveillance was “sustained” for an unspecified period—Ghafoor was
personally suing the government over its prior, illegal surveillance of
his own communications.
The discovery that he was surveilled has not changed Ghafoor’s core
views of his country. “I’m really proud to have grown up in the U.S.,”
he says. “And if you ever tap my calls and read my emails you’ll see
that even though I sued the government, I love my country. I love
America.”
But Ghafoor has no doubts that he was placed under government
surveillance because of his name, his religion, and his legal work. When
he would go to court to represent Saudi interests, he points out,
“there were over 40 lawyers from every blue-chip law firm in D.C.
representing the Saudi government, Saudi princes—I’m not the only lawyer
representing a foreign government.
“There were former Bush Administration officials representing Saudi
entities, and I doubt their emails were tapped,” he continues. “And if
they were, at some point some official would’ve said, ‘Why are we
tapping [former Bush Justice Department official] Viet Dinh?’ I’d be
shocked if they were tapping Viet Dinh. But Asim Ghafoor—’Oh, well he’s
Muslim.’”
Agha Saeed
Saeed has lived in the U.S. since 1974, when, as a graduate student
in Pakistan, he was accepted to Iowa State University. He became an
American citizen in 1982, then received a second masters degree from the
University of California at Berkeley and a joint Ph.D. from Berkeley
and Harvard’s Kennedy School of Government. For years, he taught in the
communications and political science departments at Berkeley and
California State University in Hayward.
For two decades, Saeed’s political activism has been largely devoted
to organizing American Muslims to register to vote and to participate in
the political process: “I am an American, I am a Muslim, and I vote,”
he declared in one 2003 speech. He founded the American Muslim Alliance,
which
The New York Times described in October 2001
as “the main organization devoted to the political assimilation of the
nation’s seven million Arab-Americans.” By 2009, the group grew to more
than 100 chapters in more than 30 states, and Saeed met with
high-ranking officials from both political parties.
In 2000, as chair of the American Muslim Political Coordination
Council Political Action Committee, a coalition of four major Muslim
organizations, Saeed announced the group’s endorsement of George W. Bush
for president.
Agha Saeed (Julie Plasencia/San Francisco Chronicle/Corbis)
On the day of the 9/11 attack, Saeed was in Washington, D.C. He was
scheduled to meet that afternoon with President Bush in the White House,
along with several other prominent American Muslim leaders. In the
weeks after the attack, he was again invited by Bush to the White House.
The
Times described him as a symbol of moderation and
assimilation who urged Arab-American cooperation with law enforcement
authorities and preached “forbearance…to his constituents alarmed at all
the investigative attention American Muslims have been garnering.”
Since 9/11, however, Saeed has emerged as a leading advocate against
sweeping and secretive government surveillance. He was one of the
principal organizers against the 2006 reauthorization of the Patriot
Act, serving as a coordinator for the California Civil Rights Alliance,
which persuaded the California legislature to enact a resolution calling
for limitations on the law.
The only notable public controversy involving Saeed occurred in 2000,
two days after the American Muslim Alliance announced its endorsement
of Bush.
The New York Daily News attempted to demonize a $50,000 donation
the group made to Hillary Clinton’s Senate campaign by highlighting
Saeed’s support for the right of Palestinians to armed resistance
against occupation if peaceful means fail—a right affirmed in a series
of resolutions by the United Nations General Assembly.
Yielding to pressure, Clinton quickly condemned the remarks and
announced that she was returning the donation. Her GOP opponent, Rick
Lazio, attacked her for receiving “blood money” and criticized her and
her husband for having invited Muslim-Americans who opposed the Middle
East peace process to the White House.
But even if Saeed had asserted that Palestinian violence is justified
in response to Israeli occupation, such a statement could not legally
be used to authorize surveillance under FISA. In the 1969 case
Brandenburg v. Ohio,
the U.S. Supreme Court unanimously ruled that “advocacy of the use of
force” is protected by the First Amendment unless it is likely to incite
imminent violence. In a statement to
The Intercept, the NSA
also emphasized that “no U.S. person can be found to be an agent of a
foreign power based solely on activity protected by the First
Amendment.”
According to the NSA spreadsheet, the agency’s surveillance of Saeed began in June 2007 and was still sustained as of May 2008.
Today, Saeed suffers from advanced Parkinson’s disease, making communications difficult. Via email, he told
The Intercept
that he believes he was placed on the NSA list because of his political
activism and his friendship with controversial figures such as Sami
Al-Arian, a former University of South Florida professor and activist
who
pleaded guilty to a conspiracy to aid the militant group Palestinian Islamic Jihad in a case that many civil libertarians regard as
prosecutorial overreach motivated by anti-Muslim hysteria.
“The government is always looking for a pretext to surveil people who
are critical of policy,” Saeed said by telephone, with the help of an
interpreter who can decipher his muffled speech. “Now it has become
common to accuse people of Islamist ties to do this; before, it was
communism and leftists. The FBI has questioned me over both these things
in my lifetime. In the 1980s they were suspicious of me over my
opposition to arming Afghan Islamists; now they accuse me of being an
Islamist.”
Nihad Awad
Awad is the co-founder and executive director of the Council on
American-Islamic Relations, the nation’s largest Muslim civil rights
organization. A Palestinian born in Jordan, he was naturalized as an
American citizen and has lived in the U.S. for more than two decades.
Awad has worked with U.S. officials at the highest levels. In 1997,
he served on Vice President Al Gore’s Civil Liberties Advisory Panel to
the White House Commission on Aviation Safety and Security, and he has
personally met with Presidents Clinton and Bush, as well as former
Secretaries of State Madeleine Albright and Colin Powell, to discuss
issues relating to the American Muslim community. A few days after 9/11,
Awad was one of the few American Muslim leaders who participated in a
press conference with President Bush at the Islamic Center of
Washington.
“I’m outraged as an American citizen that my government, after
decades of civil rights struggle, still spies on political activists and
civil right activists and leaders,” says Awad. “I’m really angry that
despite all the work that we have been doing in our communities to serve
the nation, we are treated with suspicion.”
The bulk of CAIR’s work is devoted to protecting the civil liberties
of Muslim-Americans. (Full disclosure: Glenn Greenwald, a co-author of
this story, has given paid speeches before CAIR’s regional affiliates.)
The group frequently provides legal counsel to those who believe their
rights have been infringed, and litigates constitutional challenges to
state and federal laws. Awad says he is particularly incensed about the
surveillance given the close cooperation that CAIR has provided the U.S.
government in
denouncing violent extremism. “The government knows very well that I am not a foreign agent,” he says.
Despite its political moderation and relationship to federal law
enforcement agencies, CAIR became a primary target of hardline
neoconservatives after 9/11. In 2007, the Justice Department named the
group as one of more than 300 “unindicted co-conspirators” in its
controversial prosecution of the Holy Land Foundation, then the largest
Muslim charity in the U.S., which was eventually convicted of providing
material support to Hamas. The Justice Department later attempted to
justify its inclusion of CAIR by referring to wiretap evidence showing
that in 1993, a Palestinian advocacy group that prosecutors believed was
linked to Hamas met in a Philadelphia hotel and talked about founding
CAIR. In 1994, Awad voiced public support for Hamas—before the group’s
campaign of suicide attacks against civilians and subsequent placement
on the State Department’s terrorist list in 1997.
“I do not support Hamas,” Awad says today, pointing out that the
group was not involved in terrorist activities at the time he made the
statement. “It was not on the list of organizations that sponsor or
conduct terrorism by the State Department. And when the organization
took those acts, CAIR has condemned it, repeatedly.”
Awad’s surveillance appears to have coincided with the timing of the
Holy Land Foundation case: It began in July 2006, and two other email
accounts belonging to Awad were added in September and November of that
year. The surveillance is marked “terminated” as of February 2008.
The government’s denunciation of CAIR as an “unindicted
co-conspirator” cast the group in a nefarious light while denying it the
opportunity to defend itself in court. It also caused the FBI to
terminate its formal community outreach efforts with the group in 2008,
despite the fact that,
as The Christian Science Monitor reported, “CAIR itself has never been charged with any wrongdoing.”
Awad cites how much scrutiny the group has received, combined with
the fact that it has never been charged with a crime, as proof of its
purely civic and legal activities. “Our door has been open for 20
years,” he says. “The government—obviously from the scrutiny we have
seen so far—they know everything. And they know perfectly well that we
are a transparent, above-the-board, American, true success story.”
Nonetheless, CAIR and its leaders have been publicly maligned as
terrorist supporters by the Muslim-focused fringes of the far right, led
by activists such as Frank Gaffney,
Pamela Geller, and
Daniel Pipes. FBI sources told
The Intercept
that CAIR is still on the government’s “radar screen,” and it was one
of the primary targets of a 2011 investigation led by GOP Rep. Peter
King into what he called the “
radicalization of the American Muslim community.”
The New York Times denounced those hearings as spreading “fear and bigotry” and seemingly “designed to stoke fear against American Muslims,” while
Slate labeled them “
Muslim McCarthyism.”
“I think all Americans should be worried about NSA surveillance and
the targeting of American Muslims,” Awad says. “Because if it is
American Muslims today, it is going to be them next. ”
Hooshang Amirahmadi
Amirahmadi is a professor at Rutgers University, where he has been on
the faculty since 1983, and is the former director of the school’s
Center for Middle Eastern Studies. He is also the founder and president
of the American Iranian Council, a nonprofit group devoted to public
policy research on the relationship between the U.S. and Iran, and the
president of Caspian Associates, a consulting firm that works with
developing nations.
The AIC is affiliated with many senior U.S. government officials and
diplomats. Its honorary board includes former Health and Human Services
Secretary Donna Shalala and former Deputy Secretary of State Thomas
Pickering, and its board of directors include former Senator J. Bennett
Johnston and former Assistant Secretary of State Richard Murphy. Past
directors include Cyrus Vance and Sargent Shriver. Vice President Joe
Biden, Madeleine Albright, Secretary of State John Kerry, and Secretary
of Defense Chuck Hagel have all spoken at events organized by
Amirahmadi.
Hooshang Amirahmadi (Julia Cortez/AP)
Amirahmadi has dual citizenship as an American and an Iranian. A
secularist, he has twice launched quixotic candidacies to become the
president of Iran (in 2005 and again in 2013) as a statement against the
Iranian political establishment. He was prevented both times from
appearing on the ballot by the Guardian Council, which controls the
election process in Iran.
Amirahmadi holds many Western liberal views, describing homosexuality
as a “non-problem” and pledging during his last campaign to name a
female vice president.
He has said
that “every Iranian citizen regardless of their religion, ethnicity,
race, color, gender … are equal in front of the law.” He has been a
strong advocate for improving ties between the U.S. and Iran, and he
vehemently opposes any attempt by Iran to acquire a nuclear weapon. He
also recognizes the validity of Israel’s right to exist as a sovereign
state. “Israel is a reality,” he says. “It has to be recognized as a
reality.”
But mixed in with those conventional pro-Western views, Amirahmadi
has voiced substantial dissent from America’s foreign policy toward
Iran. Much of his work within the U.S. foreign policy community, in
fact, has been devoted to persuading high-level officials that sanctions
against Iran, as well as external efforts to bring about regime change,
will backfire. In 2007, he defended the regime of Iranian president
Mahmoud Ahmadinejad, claiming in an
interview
that Iranian connections to terrorism are a “myth” and that “Hezbollah
and Hamas are not terrorist organizations, they are defending their
country and their nations.” Last year conservative media outlets
seized on those comments
to mount a campaign against Hagel’s nomination as defense secretary,
claiming that his association with Amirahmadi should disqualify him.
The Wall Street Journal editorial page and other neoconservative outlets also criticized Amirahmadi’s
connections
to the Alavi Foundation, a U.S. charity that federal investigators
believe is controlled by Iran. The foundation donated money to
Amirahmadi’s program at Rutgers, and has made similar contributions to
Persian culture programs at Harvard University, Columbia University, and
other schools.
Leaders in the Iranian expatriate community say privately that
Amirahmadi cultivated ties to the Ahmadinejad regime in order to raise
his profile as a potential broker of détente between the U.S. and Iran.
The sources also note that he was in regular contact with the State
Department over the past decade, and was an unlikely candidate for the
role of foreign spy.
Amirahmadi, who does not self-identify as a Muslim and describes
himself as an atheist, believes that the NSA surveillance was motivated
by his diplomatic work, not his religious heritage. [
Update: Although Amirahmadi used the word "atheist" to describe his religious identity to
The Intercept, in a
HuffPost Live interview
on Wednesday, he said he prefers to be called a "secular Muslim."]
While he considers the surveillance to be illegal and has no objection
to it being made public, he declined to comment further on the matter.
His surveillance began in August 2007, with a second email account added
in November of that year and a third in February 2008. The government’s
apparent monitoring of Amirahmadi’s emails was still marked as
“sustained” as of May 2008.
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 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. FISC 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.”
Asked how many Americans could currently be under FISA surveillance
given the looser guidelines he cites, the prosecutor is unequivocal. “I
would think it would be a large number of people,” he says.
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.”)
Such far-fetched accusations don’t bear serious scrutiny, given
Guandolo’s increasingly bizarre and paranoid views since leaving the
FBI. (Last year, for instance, he told a talk-radio host that CIA
director John Brennan
secretly converted to Islam
and is a tool of Saudi intelligence.) But during his tenure at the FBI,
Guandolo worked on cases to obtain FISA warrants, and his anti-Islamic
views were deemed acceptable enough to be reflected in basic training
materials within the bureau.
Numerous other current and former agents interviewed about the
surveillance process say it’s possible that the overseas connections and
political beliefs of the five Americans played a role in arousing
suspicions. They cite Ghafoor’s representation of Al Haramain at a time
when it was under so many terrorism investigations, and Amirahmadi’s
ties to Iran at a time when the country was a major target of NSA
surveillance because of its suspected nuclear weapons program and
support for terrorist organizations.
One former FBI counterterrorism agent also said that Saeed’s speech
echoing the UN resolution on Palestinian armed resistance likely helped
lead the bureau to launch an investigation against him, although the
government surveillance began seven years after that statement. While
the comments alone wouldn’t have been enough to secure FISA
authorization for electronic surveillance, the remarks may have been
viewed as sufficient to get the process started.
Law enforcement officials say that the FBI’s interest in Gill was
likely sparked by the smear campaign waged against him by
neoconservatives. And they also cite Nihad Awad’s political comments and
connections—including the public support that he offered for Hamas and
the accusations against CAIR stemming from the Holy Land Foundation
Case—as enough in the FBI’s eyes to merit an investigation that could
lead to surveillance.
Asked about the document that refers to a
potential target of FISA surveillance as a “raghead,” an NSA
spokeswoman said the agency “has not and would not approve official
training documents that include insulting or inflammatory language. Any
use of racial or ethnic stereotypes, slurs, or other similar language by
employees is both unacceptable and inconsistent with NSA policy and
core values.”
The Justice Department did not respond to repeated requests for
comment on this story, or for clarification about why the five men’s
email addresses appear on the list. But in the weeks before the story
was published,
The Intercept learned that officials from the
department were reaching out to Muslim-American leaders across the
country to warn them that the piece would contain errors and
misrepresentations, even though it had not yet been written.
Prior to publication, current and former government officials who
knew about the story in advance also told another news outlet that no
FISA warrant had been obtained against Awad during the period cited.
When
The Intercept delayed publication to investigate further,
the NSA and the Office of the Director of National Intelligence refused
to confirm or deny the claim, or to address why any of the men’s names
appear on the FISA spreadsheet. Prior to 2008, however, FISA required
only an authorization from the attorney general—not a court warrant—for
surveillance against Americans located overseas. Awad frequently
travelled to the Middle East during the timeframe of his surveillance.
Whatever the specific reasons and methods used to monitor the five
men’s emails, the surveillance against them took place during the chaos
and fear that enveloped the national security community in the years
after 9/11. The Clinton Administration had avoided investigating
potential links between Muslim charities and suspected terrorists, and
the FBI was scrambling to catch up and scrutinize dozens of
organizations on the orders of the Bush Administration. Those probes led
to some prosecutions and convictions, but they also generated a huge
backlash of criticism for targeting innocent groups. One former law
enforcement official said that, while the FBI was diligent in trying to
hew to the law, there may have been “some missteps” along the way.
Those missteps have landed heavily on Americans of Muslim heritage.
Even when the surveillance process is overseen by officials and judges
who don’t share the Islamophobic mindset of John Guandolo, mainstream
and constitutionally protected forms of activism by American Muslims
have come to be seen by some within the intelligence community as
potentially dangerous—a dynamic that raises the potential for abuse,
especially when warrants are issued in secret and authorized by a law
that gives wide latitude to those seeking them. A
Washington Post report
earlier this week found that the government used FISA procedures to
intercept and retain vast amounts of private data belonging to “ordinary
internet users” who had no evident connection to terrorism or espionage
and had been “caught in a net the [NSA] had cast for somebody else.”
Asim Ghafoor says his first-hand experience working on behalf of
other Muslim-Americans has led him to believe that “the U.S. government
embarked on a very systematic approach” to target his community.
“I saw the government specifically go after Muslim people who were
involved in certain activities such as charity work, humanitarian work,
political activism,” he says. “Maybe they had some website that had some
speeches that nobody ever read or even noticed, maybe they had some
bloodcurdling speeches. So the government just treated you like you were
blowing up the next tower. They treated you like you were going to be
the Manchurian Candidate, you were going to destroy America from within.
There were U.S. attorneys, FBI agents, DHS agents, customs agents all
over the country that were trying to find the next terror cell in their
midst. If you were involved in those activities and maybe you were on a
student visa and you didn’t quite fill out the paperwork, you were
hosed. There is no question about it, you were worse off than a migrant
worker in Dubai. You were just packed up and sent home. Life became
very, very unbearable for them.”
Even a U.S. citizen like Faisal Gill, who served his country both in
the armed forces and in the White House, found himself spied on by his
own government. “I was a very conservative, Reagan-loving Republican,”
he says. “If somebody like me could be surveilled, then [there are]
other people out there I can only imagine who are under surveillance.
“I went to school here as a fourth grader – learned about the
Revolutionary War, learned about individual rights, Thomas Jefferson,
all these things,” he continues. “That is ingrained in you – your
privacy is important. And to have that basically invaded for no reason
whatsoever – for the fact that I didn’t do anything – I think that’s
troubling. And I think that certainly goes to show how we need to shape
policy differently than it is right now.”
Josh Meyer, who is the McCormick Lecturer in National Security Studies at the Medill School of Journalism and co-author of The Hunt for KSM: Inside the Pursuit and Takedown of the Real 9/11 Mastermind, Khalid Sheikh Mohammed, contributed reporting to this story.
