By Faisal Gill – 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.”
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 byWired 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 withThe 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.”
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.