July 23, 2014
by Robert McCaw
Good afternoon. My name is Robert McCaw and I am the government affairs department manager for the Council on American-Islamic Relations, the nation's largest Muslim civil rights and advocacy organization.
CAIR appreciates this opportunity to address the PCLOB and provide its views and recommendations on what civil liberties issues the board should address in its mid-term and long-term agenda.
A number of the issues I raise today take into account the troubling impacts of certain national security programs on the privacy and civil liberties rights of Arab, South Asian, Muslim, and Sikh Americans.
CAIR recommends that the PCLOB review DHS and DOJ redress policies and procedures regarding racial and religious profiling and questioning at points of entry along the U.S. border (by CBP) and at U.S. airports (by TSA), including inappropriate placement of U.S. citizens on traveler watch lists including the no-fly list and the list for secondary security screening selection (SSSS).
CAIR also asks the board to review numerous reports of the FBI placing American citizens on the no-fly list while traveling abroad, a form of extrajudicial exile, often for the purpose of coercing these citizens into submitting to interviews with FBI agents or foreign law enforcement while being denied legal counsel. At times these citizens have been put into situations of extreme duress and been asked to spy on their religious communities in exchange for being allowed to travel home.
In June, a federal district judge in Oregon ruled that no-fly list is unconstitutional, violating the "procedural due process" rights of those watchlisted by providing no meaningful way to contest their designation. Specifically, the DHS Traveler Redress Inquiry Program, DHS TRIP, is opaque and slow and requires an overhaul in its entirety.
CAIR strongly urges the PCLOB to review these interconnected federal watchlisting issues to provide recommendations to the administration, Congress, DOJ, and DHS on how to adequately develop watchlist redress procedures that satisfy federal court concerns over procedural violations of citizens' due process rights. Specifically, CAIR believes that the federal watchlist system needs to be repaired to ensure:
CAIR recommends that the PCLOB review federal guidelines on the use of race by federal law enforcement and national security agencies. DOJ and DHS guidelines that are supposed to prohibit profiling have been improperly used to wrongfully target Muslims in counterterrorism investigations and Latinos for immigration investigations.
CAIR believes that the DOJ and DHS should revise existing guidelines banning the use of racial profiling to include nationality and religion as protected characteristics as well as eliminate any loopholes that permit profiling at U.S. borders and for reasons of national security.
Such a board review should also target the Attorney General's Guidelines for Domestic FBI Operations (AGG) and the FBI's Domestic Investigations and Operations Guide (DIOG), which permit the FBI to engage in racial and ethnic profiling in certain contexts, to initiate investigations, and to use intrusive investigation techniques absent any suspicion of wrongdoing.
A board review should also be completed on how these guidelines and the DIOG impact law enforcement practices in Muslim communities -- and others -- and could help the attorney general to better understand the harmful effects of the policies.
This past month, CAIR joined with a broad-based coalition of 45 organizations, led by the ACLU, in insisting that President Obama provide a full public accounting of surveillance of American Muslim leaders.
According to new revelations by journalists Glenn Greenwald and Murtaza Hussain, CAIR's own national executive director was among those U.S. Muslim leaders reported to be targeted for FBI and NSA surveillance under FISA.
Among other leaders spied on was Faisal Gill, an American citizen, U.S. Navy veteran, and former Bush administration DHS official. Of particular concern, Mr. Gill's nationality was marked "unknown" on a leaked FISA recap document.
Addressing targeting of American Muslim leaders, CAIR stated it was "an outrageous continuation of civil rights era surveillance of minority community leadership by government elements who see threats in all patriotic dissent."
As the Obama administration continues to allow some government agencies to treat all Americans as objects of suspicion, it is time for a full public accounting regarding surveillance of American minorities.
CAIR strongly recommends that the PCLOB review allegations that the FBI and NSA are spying on U.S. Muslim leaders to ensure that government surveillance works within the bounds of law and the Constitution.
CAIR fully supports law enforcement counterterrorism investigations that are based on credible information, carried out to prevent criminal acts of violence, or to halt material support to would-be terrorists. CAIR believes that responsible enforcement of counterterrorism programs is what truly keeps Americans safe.
Since September 11, the FBI has made preventing the next act of terrorism its top priority. Out of its $8.2 billion yearly budget, $3.3 billion is spent on counterterrorism operations. During the last decade, the FBI has built a network of 15,000 registered informants, many of whom are paid to infiltrate American Muslim communities.
Of the 508 federal terrorism prosecutions during this period, nearly half have involved the use of an informant, with sting operations resulting in the prosecution of 158 defendants, out of which 49 defendants were ensnared by an informant who led the plot.
CAIR acknowledges the value of FBI sting operations in prosecuting individuals who would attempt to do our county harm. However, in recent years a number of troubling details have emerged about some informant-led plots.
According to Mother Jones magazine, all but three of the last decade's high profile terror plots were informant-driven FBI stings that targeted suspects which had no actual ties to overseas terrorist groups like al-Qaeda.
As CAIR addressed in its written testimony submitted to the U.S. House Committee on Homeland Security on missed opportunities concerning the April 2013 Boston bombings, recent details about some of these cases have CAIR and many other Muslim community leaders, civil rights groups, and media questioning whether most of these FBI stings were geared towards preventing operational terrorists or were actually cases of financially motivated informants going to great lengths over long periods of time to radicalize and enable unlikely and at times mentally ill individuals to commit acts of scripted terrorism.
CAIR recommends that the PCLOB to investigate civil right groups' and media allegations that the FBI has engaged in unlawful or questionable practices of entrapment in the American Muslim community, as well as other religious communities and politically left- and right-leaning movements.
Recent headlines were also made by the NSA's blatantly prejudiced use of the fake name "Mohammad Raghead" as a placeholder in agency documents describing how to properly format surveillance justification.
However, this came as no surprise in light of Wired's 2011 reporting that the FBI and DOD were also using anti-Arab, anti-Muslim training materials.
While most of these materials have since been purged, the effects of such trainings still linger and CAIR recommends the board complete a review DOJ and DHS national security and counterterrorism training programs and materials used to educate agents and officers on communities' cultures, beliefs, and practices, in addition to trainings on upholding civil rights and liberties of American citizens and persons residing inside the United States.
In its review, CAIR suggests that the PCLOB consider the following reform measures:
CAIR recommends that the PCLOB review the activities of state and local intelligence fusion centers that receive federal funding and operate under voluntary DOJ and DHS guidelines, to determine whether they operate within the law, including regulations governing the collection, retention and sharing of criminal intelligence information (28 CFR 23), and whether these activities have a disparate impact on minority communities, particularly Arab, Middle Eastern, Muslim, and South Asian communities. In particular, examine fusion centers' participation in federal suspicious activity reporting (SAR) programs, such as the Information Sharing Environment and the FBI's eGuardian program.
The sample of SARs released in litigation or through open government requests reveal a significant number that focus on perceived race, ethnicity, national origin and religion, or other First Amendment activity (such as photography), rather than any objective facts to suggest criminal or threatening behavior.
Recent leaks in national and foreign press have revealed that the National Security Agency (NSA), in cooperation with the FBI, is covertly carrying out at least two nationwide surveillance programs which collect information on the private calls and online activities of U.S. citizens and non-permanent residents alike while targeting foreign nationals. These programs are being carried out in secret partnership with some of the nation's top telecommunications and internet and technology companies.
Through secret Foreign Intelligence Surveillance Court (FISC) orders the federal government is obtaining, without any probable cause or suspicion of wrongdoing, data from millions of American Verizon Business Network Services customers and user account information from Google, Yahoo!, Facebook, Microsoft (Hotmail, etc.), Apple, PalTalk, YouTube, Skype and AOL. It is strongly suspected that the federal government is also collecting call data from all other major phone carriers.
On June 5, The Guardian exposed a top secret Foreign Intelligence Surveillance Act (FISA) court order that authorized the NSA to collect data on Verizon customers "on an ongoing daily basis," which included calls made "wholly within the United States, including local telephone calls."
The Guardian described the surveillance program as collecting "information gathered as you use technology ... [That] generally does not contain personal or content-specific details." Examples of such metadata include phone numbers between parties on a call, as well as timestamps, GPS location signatures, call duration, and other unique identifiers -- but not the names of persons participating in the calls (although such information is easily attainable) and the content of their conversations.
During recent congressional hearings, NSA officials testified that under the current Verizon surveillance program, such metadata is retained for a period of five years.
On June 6, The Guardian and The Washington Post revealed the existence of PRISM, a clandestine national security internet surveillance program overseen by the NSA to collect broad customer data from participating internet and technology companies. Collected data includes information on personal emails, chats, videos, photos, stored data, VoIP, file transfers, video conferences, logins, and details on online social networking.
Established under the authorities granted by section 702 of FISA, civil liberties groups contend that PRISM exceeds its congressionally intended purpose to only collect information on non-U.S. persons residing overseas.
Contradictory accounts exist on how PRISM actually gathers the data it collects from participating internet and technology companies. The NSA has either direct access to the servers of these companies, a claim denied by Microsoft, Google, and Facebook, access to remotely secured file drop-boxes, or other mechanisms. CAIR questions the overall constitutionality of the NSA being able to have access to, collect, or store data on the communications of American citizens without any probable cause of wrongdoing.
While it is reported that stored data collected under PRISM cannot be accessed by national security or law enforcement until it becomes relevant to an investigation of a foreign national, once relevant, communications between non-citizens and American citizens, family, friends, academic colleagues, or business partners can become part of a larger investigation.
The White House claims that these separate domestic spying programs are designed to only target "non-U.S. persons outside the U.S." and "minimize ... acquired information about U.S. persons." Rights groups question PRISM's less than stringent standards to protect against unconstitutional privacy breaches. PRISM program safeguards for reviewing collected data are only "designed to produce at least 51 percent confidence in a target's 'foreignness.'"
CAIR has expressed serious concerns over this test. It remains unclear to the public who in the NSA or FBI ultimately decides what constitutes "foreignness" and whether or not discriminatory criteria, such as national origin or religion, are being used in these assessments. CAIR contends that if there is only a 51 percent "certainty" that the targets of surveillance are foreign, that leaves a 49 percent chance of "incidental collection" from American citizens.
Under such loose standards, the incidental collection of details on the communications of American citizens becomes highly probable when targeting foreign nationals. Especially when NSA analysts are trained to collect data on all contacts twice removed from initial targets. While training materials acquired by The Washington Post instruct new analysts to make quarterly reports on such incidental collection of U.S. communications, they add "it's nothing to worry about."
CAIR also questions how long the NSA is able to retain information collected by PRISM. As reported by The Associated Press, "Two decades from now, the government could have a trove of American emails and phone records it can tap to investigative whatever Congress declares a threat to national security."
While some in Congress and the White House say that these spying programs are lawful under the Patriot Act and Foreign Intelligence Surveillance Act, CAIR and the civil rights community believes that the Fourth Amendment of the U.S. Constitution is clear: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ...
CAIR recommends Congress to amend Section 215 of the USA PATRIOT Act, the state secrets privilege, and the FISA Amendments Act to ensure that the unwarranted surveillance of internet activity and phone records from citizens residing in the US is, in fact, illegal and to ensure that violations would be reviewed in a public court.
CAIR recommends for the creation of an investigative committee to reveal the extent and scope of these spying programs, and for a possible inquiry by the congressional ethics committees, depending on the results of the investigation. This should be done with the intent of holding elected officials accountable for their involvement in furthering or enabling this unwarranted surveillance.
CAIR also recommends for this investigation to determine what criteria have been used to collect records, and to determine for how long these records are being stored. Without information regarding these criteria that purportedly establish "foreignness," CAIR remains concerned that these programs have been discriminating against citizens on the basis of religion and national origin.
Legislative initiatives like these are necessary to protect the fourth amendment rights of all American citizens, including members of the American Muslim community which has been subject to unwarranted and discriminatory acts of surveillance for more than a decade.
"What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls, and the NSA cannot target your emails ... and have not."
"In recent years, these programs, together with other intelligence, have protected the U.S. and our allies from terrorist threats across the globe to include helping prevent the terrorist -- the potential terrorist events over 50 times since 9/11."
"The NSA's collection of millions of Americans' phone call records is the type of overreach I have warned about for years. Although I strongly believe some authorities under the Foreign Intelligence Surveillance Act provide valuable information that helps protect our national security, Americans with no link to terrorism or espionage should not have to worry that their private information is being swept up."
"We accept that free countries must engage in secret operations from time to time to protect their citizens. Free countries must not, however, operate under secret laws. Secret court opinions obscure the law. They prevent public debate on critical policy issues and they stop Congress from fulfilling its duty to enact sound laws and fix broken ones."
"It's called protecting America."
"One of the things that we're charged with is keeping America safe and keeping our civil liberties and privacy intact. I think we have done both in this particular case."
"We provide customer data only when we receive a legally binding order or subpoena to do so, and never on a voluntary basis. In addition we only ever comply with orders for requests about specific accounts or identifiers. If the government has a broader voluntary national security program to gather customer data we don't participate in it."
"Google cares deeply about the security of our users' data. We disclose user data to government in accordance with the law, and we review all such requests carefully. From time to time, people allege that we have created a government 'back door' into our systems, but Google does not have a backdoor for the government to access private user data."
"Also in future gathering of information, minimization is critical. To minimize the information to gathered to protect innocent Americans ... instead of gathering all of the metadata, phone records of one area code to focus on the suspects ... "
" ... we have not yet struck the right balance between the intelligence-gathering needs of the FBI and the privacy rights of Americans."
Braun, Stephen, Anne Flaherty, Jack Gillum, and Matt Apuzzo. "Secret to Prism Program: Even Bigger Data Seizure." The Big Story. The Associated Press, 15 June 2013. Web. 19 June 2013.
Team, Guardian US Interactive. "A Guardian Guide to Your Metadata." The Guardian. Guardian News and Media, 12 June 2013. Web. 24 June 2013.
Isikoff, Michael. "NSA Considers Ending Collection of Data on Americans' Phone Calls." NBC News. NBC, 18 June 2013. Web. 19 June 2013.
Gellman, Barton, and Laura Poitras. "U.S., British Intelligence Mining Data from Nine U.S. Internet Companies in Broad Secret Program." Washington Post. The Washington Post, 07 June 2013. Web. 19 June 2013.
Phillip, Abby D. "President Obama: NSA Spying Programs 'Transparent'." ABC News. ABC News Network, 17 June 2013. Web. 19 June 2013.
Sullivan, Sean. "NSA Head: Surveillance Helped Thwart More than 50 Terror Plots." Washington Post. The Washington Post, 18 June 2013. Web. 19 June 2013.
Lardinois, Frederic. "Google, Facebook, Dropbox, Yahoo, Microsoft, Paltalk, AOL And Apple Deny Participation In NSA PRISM Surveillance Program."
CrunchGov. Tech Crunch, 6 June 2013. Web. 19 June 2013.
CAIR's legislative fact sheets from 2012 are below: