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Government Spied on American Muslims Who May or May Not Be Bad Guys

intelligence-spy-traditional

Glenn Greenwald and company continue to slowly churn out new revelations from the classified documents stolen by Edward Snowden, the former government contractor now hiding in Russia. The latest story tells us that “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.” Greenwald contends that, “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.”

It sounds ominous enough. But Lawfare‘s Benjamin Wittes argues that a crucial piece is missing:

Any sense of what was actually in the relevant FISA applications. Assuming for a moment that Greenwald is correct that these five people were, in fact, the subjects of FISA surveillance, there would have been a substantial document submitted to the FISA court and approved by it. That document would have had to establish probable cause that the subject was an agent of a foreign power engaged in clandestine activities against the United States in possible violation of U.S. criminal law. Evaluating whether surveillance was appropriate without reference to what was in that document is a fruitless exercise and not an especially interesting one.

I suspect that over the next few days, commentators will try to mine the public record for disparaging information on the five people in question to try to justify the alleged surveillance. I’m not interested that game. I don’t want to smear anyone. I don’t believe in guilt by association. And it’s actually not important what might have been in a FISA application, only what actually was in it. Until someone has some has some information about, there’s really not much to talk about.

That’s exactly right. A lot of public who have “led highly public, outwardly exemplary lives” have turned out to be heinous criminals, traitors, and spies. And those sort of people tend to “vehemently deny any involvement in terrorism or espionage,” to not be known to publicly advocate suspicious activity, or  be “known to have been implicated in any crime” until such time as, well, they are. We really don’t have the slightest clue.

Wittes further offers that:

To whatever extent the five individuals Greenwald names were improperly targeted under FISA, the statute itself gives them a civil remedy (“An aggrieved person, other than . . . an agent of a foreign power . . . who has been subjected to an electronic surveillance . . . shall have a cause of action against any person who committed such violation“). I suspect we may also see a Bivens suit. Those may lead to some actual information. Until then, I’m not really interested in speculating either that the FISA applications existed and that the surveillance really took place, or that it was justified if it did, or that it was not.

That’s fair enough. Except that, of course, the fact that we only know these programs exist because of illegal leaks. Suspicion that the intelligence community is spying on honorable citizens is hardly unwarranted. And the FISA process is itself shrouded—for good reason!—in tremendous secrecy.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Ron Beasley says:

    This reminds me of the Brandon Mayfield case in 2004. Most of the problem here was total incompetence and outright deceit on the part of the FBI but the FBI itself now admits that the fact Mayfield had converter to Islam was a factor.

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  2. Bob B says:

    If these five men are innocent, and I assume they are, it seems the irresponsible party is Glenn Godwald. GG is the one opening them up to unwarranted public scrutiny and humiliation.

    Like or Dislike: Thumb up 2 Thumb down 6

  3. Davebo says:

    Suspicion that the intelligence community is spying on honorable citizens is hardly unwarranted.

    No it isn’t unwarranted.

    However Greenwald did manage to leave out the fact that there is no evidence of such spying after 2008 until deep into the article.

    And that makes the headline for this post “The NSA and FBI are doing more spy stuff.” misleading as well.

    Like or Dislike: Thumb up 5 Thumb down 0

  4. Ben Wolf says:

    I’m disappointed by Wittes argument. From the Intercept article:

    . . .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.”

    So we shouldn’t discuss FISA authorized surveillance for lack of information on the criteria required for that surveillance, even though it’s the government which refuses to allow us to know its justifications. This hearkens back to the Justice Department’s argument that victims of domestic spying have no standing in the courts because the government won’t turn over the documents which prove they were targets of government spying.

    To whatever extent the five individuals Greenwald names were improperly targeted under FISA, the statute itself gives them a civil remedy (“An aggrieved person, other than . . . an agent of a foreign power . . . who has been subjected to an electronic surveillance . . . shall have a cause of action against any person who committed such violation).

    They can’t file if they don’t know they’ve been subject to surveillance, and they wouldn’t have known that had Edward Snowden not turned the relevant materials over to Greenwald. Rather than showing there was no need for the story, this demonstrates the continued revelation of NSA documents is demonstrating itself as essential for the protection of individual citizens’ rights.

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  5. Jenos Idanian #13 says:

    Even before I went to Greenwald’s article, I had a hunch that one group would be mentioned. And I was correct:

    Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), the largest Muslim civil rights organization in the country.

    I’ll give the NSA a pass on this one. CAIR’s ties to terrorist groups are well-established. They were an unindicted co-conspirator in the Holy Land Foundation case, where the group was funneling money to Hamas. (The founder of their Texas chapter was sentenced to 65 years in the case.) They have ties to several Muslim militant extremist groups. Keeping an eye on them is just plain common sense.

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  6. Tyrell says:

    Sounds like a job for the IRS.

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  7. James Joyner says:

    @Ben Wolf: I agree that it’s a Catch-22. I don’t like it.

    I had a longish convo with Greenwald on Twitter about this this morning. I think he’s asking perfectly reasonable questions that the public deserves answers to—even if I’m not at all happy that the reason he’s able to ask the questions to begin with is the theft of classified documents. I just think he draws conclusions based on one side of the evidence that may well not be merited. .

    Like or Dislike: Thumb up 2 Thumb down 0

  8. John425 says:

    So how do they ascertain whether the individual is “honorable” or not unless they check him out? (i.e. spying=investigating.)

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