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CAIR Recommendations to PCLOB on Government Watchlists, Surveillance, Profiling

July 23, 2014

CAIR Statement of Views on Privacy and Civil Liberties Oversight Board Mid-term and Long-term Agenda

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.

Concerning Watchlist Issues

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:

  • That people on the no-fly list and other watchlists are provided notice of the fact they are on a list; a statement of reasons in sufficient specificity and detail to allow them to meaningfully challenge their inclusion; and a hearing before a neutral fact finder at which they can contest the government's evidence against them and present their own. In the event of an adverse decision, they are entitled to federal judicial review;
  • The ability to confirm an individual's designation on such watchlists subsequent to a person's filing for redress through DHS TRIP or experiencing a watchlist-based deprivation; and
  • That individuals are allowed to challenge the Terrorist Screening Center's listing in federal district court directly and access and review any claims or evidence used in their designation.

Concerning Profiling Guidelines

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.

Concerning FBI and NSA Spying on Muslim Leaders

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.

Concerning Blanket Surveillance and Entrapment of Muslims

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.

Concerning Biased Training of Federal Law Enforcement Agents

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:

  • Standardize education materials across all departments and agencies about communities' cultures, beliefs, and practices with involvement from Arab, South Asian, Sikh, and Muslim organizations and ensure that First Amendment-protected activity and nonviolent civil disobedience is not improperly equated with terrorism;
  • Create an ongoing system to ensure all training materials and intelligence products that contain factually incorrect or biased information continue to be removed from use;
  • Bar unqualified course instructors who provided biased or inaccurate trainings and hold these individuals accountable;
  • Call for greater transparency in how federal national security and counterterrorism training funds, grants, are distributed to state and local law enforcement agencies and to which trainers these funds are provided to; and,
  • Retrain national security and counterterrorism officers and agents who, for the past decade, received such inaccurate and biased instruction.

Concerning Fusion Centers

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.

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