“Judge prods FBI over future Internet surveillance plans”

November 2, 2012

CNet on November 2, 2012 released the following:

“Federal judge tells FBI to do more to comply with open government laws when disclosing what backdoors it wants Internet companies to create for government surveillance.

by Declan McCullagh

A federal judge has rejected the FBI’s attempts to withhold information about its efforts to require Internet companies to build in backdoors for government surveillance.

CNET has learned that U.S. District Judge Richard Seeborg ruled on Tuesday that the government did not adequately respond to a Freedom of Information Act request from the Electronic Frontier Foundation.

Seeborg, in San Francisco, ordered (PDF) a “further review of the materials previously withheld” in the lawsuit, which seeks details about what the FBI has dubbed “Going Dark” — the bureau’s ongoing effort to force companies including Apple, Microsoft, Facebook, Yahoo, and Google to alter their code to ensure their products are wiretap-friendly.

“We must ensure that our ability to obtain communications pursuant to court order is not eroded,” FBI Director Robert Mueller told a U.S. Senate committee in September. Currently, Mueller said, many companies “are not required to build or maintain intercept capabilities.”

The FBI says lawful investigations are thwarted because Internet companies aren’t required to build in back doors in advance, or because technology doesn’t permit it. In May, CNET reported that the bureau has quietly asked Web companies not to oppose a law that would levy new wiretap requirements on social-networking Web sites and providers of VoIP, instant messaging, and Web e-mail. During an appearance two weeks later at a Senate hearing, Mueller confirmed that the bureau is pushing for “some form of legislation.”

Judge Seeborg’s ruling this week also ordered the FBI to make it more obvious which Going Dark-related documents were being withheld from public view, something the EFF said has been unreasonable and confusing. He gave both sides 15 days to “meet and confer to negotiate a timetable for the FBI to complete” its revisions.

Seeborg did not, however, make a final ruling about what must be turned over. The Justice Department says it has identified 2,662 pages that might be relevant and has turned over 707 pages. For its part, the EFF argues that they’ve been heavily redacted — or had pages completely removed — in violation of open-government laws.

David Hardy, section chief for the FBI’s record management division, had told the court that internal documents about a congressional briefing should not be released in full because:

Publicity (adverse or otherwise) regarding any internal FBI development projects (e.g. National Electronic Surveillance Strategy), and legislative strategy to make amendments to outdated laws, that these congressional staffers, and DOJ representatives, may be requested to provide input on, may seriously prejudice their effectiveness in helping on other developmental projects, and legislative strategies…. These employees may have to give input on the development of strategy plans, like developing ways to enhance ELSUR [electronic surveillance] capabilities through legislative amendments…. The publicity associated with the release of these congressional staffers involved with an FBI developmental project could trigger hostility toward a particular employee….

An FBI representative declined to comment to CNET, citing the ongoing litigation. Jennifer Lynch, an EFF staff attorney, said: “It’s nice to have a court say the government can’t do that.” Lynch said the ruling shows that the government has “to make an effort” to comply with the entirety of FOIA.

The EFF in 2009 requested “all records” about Going Dark. Its second FOIA request, in 2010, asked for examples of surveillance being thwarted on social networks and Skype, as well as documents relating to congressional briefings and meetings with industry representatives.

The FBI’s proposal would amend a 1994 law, called the Communications Assistance for Law Enforcement Act, or CALEA, that currently applies only to telecommunications providers, not Web companies. From the FBI’s perspective, expanding CALEA to cover VoIP, Web e-mail, and social networks isn’t expanding wiretapping law: If a court order is required today, one will be required tomorrow as well. But privacy groups and civil libertarians — and Internet companies — are hardly likely to embrace the idea.

Representatives of the FBI’s Electronic Surveillance Technology Section in Chantilly, Va., began quietly lobbying the FCC nearly a decade ago to force broadband providers to provide more-efficient, standardized surveillance facilities, which CNET was the first to disclose. The FCC approved that requirement a year later, sweeping in Internet phone companies that tie into the existing telecommunications system. It was upheld in 2006 by a federal appeals court.

But the FCC never granted the FBI’s request to rewrite CALEA to cover instant messaging and VoIP programs that are not “managed” — meaning peer-to-peer programs like Apple’s FaceTime, iChat/AIM, Gmail’s video chat, and Xbox Live’s in-game chat that use the Internet, not the public telephone network.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


FBI releases documents that confirm they spy on anarchists

October 22, 2012

RT on October 22, 2012 released the following:

“Two anarchists remain locked up as prosecutors attempt to coerce the testimonies they’ve been subpoenaed to give about acts of vandalism in the Pacific Northwest. In the meantime, though, the FBI has accidentally blown the cover off its own case.

Ever since Leah Plante, Katherine “KteeO” Olejnik and Matt Duran were asked to testify before a federal grand jury earlier this year, all three self-identified anarchists have been adamant about remaining silent. For refusing to speak, federal prosecutors have since put the trio of twenty-something activists behind bars over contempt of court charges, with Plante being awarded her freedom only in recent days. As her colleagues continue their imprisonment, though — where they could remain for the entirety of the 18-month investigation — the FBI has failed to provide to the press or public alike any information as to why they’ve targeted the known activists or what role they could play in unraveling a greater conspiracy.

On Thursday, legal documents intended to be cloaked indefinitely were accidently unsealed in US District Court in Seattle for a moment, finally offering a small bit of insight as to why the FBI has been targeting adherents to a specific ideology and intensifying what some have equated to a politically-motivated witch-hunt aimed at anarchists.

The Seattle Times reports that an affidavit dated October 3 was momentarily made available during last week’s court proceedings, revealing to those in attendance that the investigation into Plante and her peers dates back to earlier this year when the FBI first began spying on a group of suspected anarchists they believed were conspiring to commit acts of violence and destruction.

Beginning as early as April 9, the FBI was conducted surveillance on alleged anarchists from Portland whom soon after planned to travel to Seattle to participate in the city’s May 1, 2012 day of action activities held in coordination with other locales across the country. The feds followed a group of six suspects across state lines from Portland, Oregon into Olympia, Washington in the days before the May Day activities and drafted an indictment that could eventually lead them to charge the group with conspiracy, destruction of government property and interstate travel with intent to riot, according to the 34-page document viewed by the Times. So far, though, none of the six suspects have been formally charged with any crimes.

“Although many anarchists are law abiding, there is a history in the Pacific Northwest of some anarchists participating in property destruction and other criminal activity in support of their philosophy,” the affidavit reads, according to the newspaper.

That’s where the Pacific Northwest Three fit in: investigators had hoped that by subpoenaing Plante, Olejnik and Duran to testify, they’d learn more about anarchists in the region who may have been vocal about any attempts to wreak havoc during the May Day protests.

According to the search warrant unsealed this week, the government claims that tens of thousands of dollars in damages resulted from the May 1 actions in Seattle, largely due to attacks on the William Kenzo Nakamura U.S. Courthouse and a few private businesses in the vicinity. Video footage obtained from the scene has been endlessly analyzed by FBI detectives who have in the weeks and months since tried to build a case to file charges against the suspects, none of whom are reported to include the three persons asked to testify. That investigation has led to filing not just subpoenas against the Pacific Northwest Three, but executing no fewer than five search warrants in July that aimed to recover cell phones, computers, clothing and literature from Plante, her peers and others believed to be in cahoots with any local anarchists.

In addition to being met with silence from the Northwest Three, the trove of “evidence” uncovered by the authorities has so far left them unable to release an indictment targeting their suspects. Instead, they have been left with cell phones that, according to the unsealed affidavit, contain text messages describing the May Day protest as “awesome” but nothing more remotely noteworthy, or at least not enough to file charges.

While Plante has since been freed from prison where she was held in solitary confinement for refusing to comply with the grand jury, both Olejnik and Duran remain behind bars as investigators wait to see if they’ll be willing to speak.

“What (prosecutors) decided to do is choose people and punish them for their association,” Jenn Kaplan, an attorney for Olejnik, tells the Seattle Times. To the paper, a counsel for Olejnik adds that the grand jury investigation specifically sought answers from the anarchist about someone she knows.

Before being imprisoned and released, Plante said that a Freedom of Information Act request she filed revealed that the grand jury was first convened in March, two months before the vandalism she is being questioned about even occurred. Before being held in contempt of court, Plante wrote, “The government wants to use [grand juries] to collect information that it can use in a campaign of repression. I refuse to have any part of it, I will never answer their questions, I will never speak.”

An attorney for Duran adds that while their client isn’t being suspected or accused of the May 1 vandalism in Seattle, the associations that exist within the community are enough to keep him under the FBI’s radar. The intended result, many fear, is a chilling effect on a community of likeminded individuals that could soon enshroud other groups of activists and outspoken youths.

“One of our concerns was they were really targeting him because they perceived him to be associated with the anarchist community,” Gordon says. “It’s kind of a fishing expedition.””

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Revealed: US plans to charge WikiLeaks founder Julian Assange

February 28, 2012

The Sydney Morning Herald on February 29, 2012 released the following:

“Revealed: US plans to charge Assange

Philip Dorling

UNITED STATES prosecutors have drawn up secret charges against the WikiLeaks founder, Julian Assange, according to a confidential email obtained from the private US intelligence company Stratfor.

In an internal email to Stratfor analysts on January 26 last year, the vice-president of intelligence, Fred Burton, responded to a media report concerning US investigations targeting WikiLeaks with the comment: ”We have a sealed indictment on Assange.”

He underlined the sensitivity of the information – apparently obtained from a US government source – with warnings to ”Pls [please] protect” and ”Not for pub[lication]”.

Mr Burton is well known as an expert on security and counterterrorism with close ties to the US intelligence and law enforcement agencies. He is the former deputy chief of the counter-terrorism division of the US State Department’s diplomatic security service.

Stratfor, whose headquarters are in Austin, Texas, provides intelligence and analysis to corporate and government subscribers.

On Monday, WikiLeaks began releasing more than 5 million Stratfor emails which it said showed ”how a private intelligence agency works, and how they target individuals for their corporate and government clients”.

The Herald has secured access to the emails through an investigative partnership with WikiLeaks.

The news that US prosecutors drew up a secret indictment against Mr Assange more than 12 months ago comes as the Australian awaits a British Supreme Court decision on his appeal against extradition to Sweden to be questioned in relation to sexual assault allegations.

Mr Assange, who has not been charged with any offence in Sweden, fears extradition to Stockholm will open the way for his extradition to the US on possible espionage or conspiracy charges in retaliation for WikiLeaks’s publication of thousands of leaked US classified military and diplomatic reports.

Last week the US Army Private Bradley Manning was committed to face court martial for 22 alleged offences, including ”aiding the enemy” by leaking classified government documents to WikiLeaks.

In December the Herald revealed Australian diplomatic cables, declassified under freedom of information, confirmed WikiLeaks was the target of a US Justice Department investigation ”unprecedented both in its scale and nature” and suggested that media reports that a secret grand jury had been convened in Alexandria, Virginia, were ”likely true”.

The Australian embassy in Washington reported in December 2010 that the Justice Department was pursuing an ”active and vigorous inquiry into whether Julian Assange can be charged under US law, most likely the 1917 Espionage Act”.

In recent answers to written parliamentary questions from the Greens senator Scott Ludlam, the former foreign affairs minister Kevin Rudd indicated Australia had sought confirmation that a secret grand jury inquiry directed against Mr Assange was under way.

Mr Rudd said ”no formal advice” had been received from US authorities but acknowledged the existence of a ”temporary surrender” mechanism that could allow Mr Assange to be extradited from Sweden to the US. He added that Swedish officials had said Mr Assange’s case would be afforded ”due process”.

The US government has repeatedly declined to confirm or deny any reported details of the WikiLeaks inquiry, beyond the fact that an investigation is being pursued.

The Stratfor emails show that the WikiLeaks publication of hundreds of thousands of US diplomatic cables triggered intense discussion within the ”global intelligence” company.

In the emails, an Australian Stratfor ”senior watch officer”, Chris Farnham, advocated revoking Mr Assange’s Australian citizenship, adding: ”I don’t care about the other leaks but the ones he has made that potentially damage Australian interests upset me. If I thought I could switch this dickhead off without getting done I don’t think I’d have too much of a problem.”

But Mr Farnham also referred to a conversation with a close family friend who he said knew one of the Swedish women who had made allegations of sexual assault against Mr Assange, and added: ”There is absolutely nothing behind it other than prosecutors that are looking to make a name for themselves.”

While some Stratfor analysts decried what they saw as Mr Assange’s ”clear anti-Americanism”, others welcomed the leaks and debated WikiLeaks’s longer-term impact on secret diplomacy and intelligence.

Stratfor’s director of analysis, Reva Bhalla, observed: ”WikiLeaks itself may struggle to survive but the idea that’s put out there, that anyone with the bandwidth and servers to support such a system can act as a prime outlet of leaks. [People] are obsessed with this kind of stuff. The idea behind it won’t die.”

Stratfor says it will not comment on the emails obtained by WikiLeaks. The US embassy has also declined to comment.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


FBI hasn’t sought Carrier IQ data, chief says

December 16, 2011
Newt Gingrich
(Photo: Washington Post)

Washington Post on December 15, 2011 released the following:

“By Hayley Tsukayama

The head of the FBI told a Senate panel Wednesday that the agency has not sought information directly from the cellphone tracker Carrier IQ.

Testifying before the Senate Judiciary Committee, FBI director Robert Mueller said, “We have neither sought nor obtained any information from Carrier IQ in any of our investigations.

Responding to a question from Sen. Al Franken (D-Minn.), Mueller said that he did not believe that the bureau had sought any information on wireless companies’ use of Carrier IQ software but that he had to get more details for the committee. He said it is possible that the bureau may get data that “in some way Carrier IQ may have been involved with.”

Speculation that the FBI was using Carrier IQ data in investigations arose after Michael Morisy from MuckRock News reported that his Freedom of Information Act request to the FBI for files on Carrier IQ had been denied. In the letter, the FBI said that it was denying the request because the files were law enforcement records and “that there is a pending or prospective law enforcement proceeding relevant to these responsive records; and that release of the information contained in these responsive records could reasonably be expected to interfere with the enforcement proceedings.”

At the hearing, Mueller said that the wording in the agency’s FOIA response had been misunderstood to imply that the FBI was getting information from the firm. He referred to the phrase about a law enforcement proceeding as a “standard exemption” used in denying some FOIA requests.

In response to a Washington Post inquiry about whether there was such an investigation, FBI spokesman Paul Bresson declined to comment on whether the FBI was investigating Carrier IQ or using the software for surveillance purposes.

On Wednesday, federal officials confirmed to the The Post that the Federal Trade Commission is conducting an inquiry into Carrier IQ.

Carrier IQ spokesman Andrew Coward told The Post Wednesday that he was “not aware of an official investigation” by the FTC but that the company had set up meetings with regulators and lawmakers in Washington.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


ACLU: FBI used community outreach, partnership-building programs to collect info on Muslims

December 2, 2011

The Washington Post on December 1, 2011 released the following:

“By Associated Press

WASHINGTON — Heavily blacked-out internal FBI documents released Thursday indicate that the FBI, in some cases between 2007 and 2009, ran background checks on people they encountered at Muslim-related events and recorded personal information such as email addresses, phone numbers, physical descriptions and opinions in reports marked “routine.”

The American Civil Liberties Union, which obtained the documents under the U.S. Freedom of Information Act, accused the FBI of misusing its community outreach programs to collect information on people at Muslim-related events that the FBI organized or was invited to attend. Those programs were intended to improve the relationship between Muslims and the FBI.

The bureau said some of the documents the ACLU published were not derived from outreach programs but were from actual criminal investigations in which it was appropriate to include specific details such as a driver’s license number.

The blacked-out parts make it difficult to understand what the reports represent. But the disclosure comes at a time when the FBI has been criticized for some of its other programs, straining the fragile relationship between law enforcement and Muslims who widely believe they are subjected to surveillance and scrutiny because of their religion.

The ACLU said the FBI never told Muslims at outreach events such as job fairs, religious dinners or community meetings that it would record in government files the details about the events or who attended them.

The FBI’s Community Outreach Program predates the terrorist attacks of September 2001 and is designed to improve the public’s trust in the bureau and build partnerships. After the attacks, federal, state and local government officials stepped up this type of outreach to Muslim communities. Agents who attend such official events are instructed to file reports for what the FBI described as “internal oversight purposes.”

Separate from outreach programs, FBI agents who are investigating a person or group may do their own outreach to as part of the investigation, said Jeff Mazanec, deputy assistant director of public affairs, who oversees the official program. But that is kept separate from what a community outreach coordinator does, he said.

For example, the ACLU cited a 2008 report describing an FBI agent in San Francisco attendance at a religious dinner. The agent documented who was sitting at a table, a cellphone number and details about a man the agent obtained from the California State Department of Motor Vehicles. The FBI agent also included details about a California man and a check deposited to a bank, referencing information from the FBI’s internal case files. The names of individuals and other details were censored from the publicly available report for privacy reasons.

Mazanec said the FBI report was written as part of a formal investigation and not as part of the official community outreach program.

A board member at the Islamic Cultural Center of Northern California, Sara Mostafavi, said she was disappointed that the FBI’s San Francisco division filed a report in 2007 that listed the names and organizations of people at a mosque meeting. It included the names of 50 people from 27 different organizations and identified the particular sect of Islam that each of the attendees followed.

“When you enter kind of a relationship with a sense of trust, you’d like to know that your privacy rights aren’t going to get violated,” Mostafavi said. “It’s been difficult for some people to sometimes attend these meetings because they’re afraid of what the repercussions will be.”

Mazanec said the FBI includes such details in its files so that relationships can be maintained when agents leave or retire. “It’s better than a Rolodex,” Mazanec said. He said the FBI does not use outreach programs for terrorism investigations or assessments, and rules against this were sharpened this year.

Since 2001, advocacy and civil liberties groups have raised concerns that Muslim communities are unfairly targeted for counterterrorism purposes because of their religion. An Associated Press investigation into the New York Police Department’s intelligence-gathering tactics in Muslim communities revealed widespread spying programs that documented every aspect of Muslim life in New York. Police infiltrated mosques and student groups and secretly spied on Muslims who were considered partners in the city’s fight against terrorism.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

Federal Mail Fraud Crimes

Federal Crimes – Appeal

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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Even Those Cleared of Crimes Can Stay on F.B.I.’s Watch List

September 28, 2011

The New York Times on September 27, 2011 released the following:

“By CHARLIE SAVAGE

WASHINGTON — The Federal Bureau of Investigation is permitted to include people on the government’s terrorist watch list even if they have been acquitted of terrorism-related offenses or the charges are dropped, according to newly released documents.

The files, released by the F.B.I. under the Freedom of Information Act, disclose how the police are instructed to react if they encounter a person on the list. They lay out, for the first time in public view, the legal standard that national security officials must meet in order to add a name to the list. And they shed new light on how names are vetted for possible removal from the list.

Inclusion on the watch list can keep terrorism suspects off planes, block noncitizens from entering the country and subject people to delays and greater scrutiny at airports, border crossings and traffic stops.

The database now has about 420,000 names, including about 8,000 Americans, according to the statistics released in connection with the 10th anniversary of the Sept. 11 attacks. About 16,000 people, including about 500 Americans, are barred from flying.

Timothy J. Healy, the director of the F.B.I.’s Terrorist Screening Center, which vets requests to add or remove names from the list, said the documents showed that the government was balancing civil liberties with a careful, multilayered process for vetting who goes on it — and for making sure that names that no longer need to be on it came off.

“There has been a lot of criticism about the watch list,” claiming that it is “haphazard,” he said. “But what this illustrates is that there is a very detailed process that the F.B.I. follows in terms of nominations of watch-listed people.”

Still, some of the procedures drew fire from civil liberties advocates, including the Electronic Privacy Information Center, which made the original request and provided the documents to The New York Times.

The 91 pages of newly disclosed files include a December 2010 guidance memorandum to F.B.I. field offices showing that even a not-guilty verdict may not always be enough to get someone off the list, if agents maintain they still have “reasonable suspicion” that the person might have ties to terrorism.

“If an individual is acquitted or charges are dismissed for a crime related to terrorism, the individual must still meet the reasonable suspicion standard in order to remain on, or be subsequently nominated to, the terrorist watch list,” the once-classified memorandum says.

Ginger McCall, a counsel at the Electronic Privacy Information Center, said: “In the United States, you are supposed to be assumed innocent. But on the watch list, you may be assumed guilty, even after the court dismisses your case.”

But Stewart Baker, a former Homeland Security official in the Bush administration, argued that even if the intelligence about someone’s possible terrorism ties fell short of the courtroom standard of “beyond a reasonable doubt,” it could still be appropriate to keep the person on the watch list as having attracted suspicion.

Mr. Baker noted that being subjected to extra questioning — or even kept off flights — was different than going to prison.

The guidance memo to F.B.I. field offices says someone may be deemed a “known or suspected terrorist” if officials have “particularized derogatory information” to support their suspicions.

That standard may be met by an allegation that the suspect has terrorism ties if the claim is corroborated by at least one other source, it said, but “mere guesses or ‘hunches’ are not enough.”

Normally, it says, if agents close the investigation without charges, they should remove the subject’s name — as they should also normally do in the case of an acquittal. But for exceptions, the F.B.I. maintains a special file for people whose names it is keeping in the database because it has decided they pose a national security risk even though they are not the subject of any active investigation.

The F.B.I.’s Terrorist Screening Center shares the data with other federal agencies for screening aircraft passengers, people who are crossing the border and people who apply for visas. The data is also used by local police officers to check names during traffic stops.

The December memorandum lays out procedures for police officers to follow when they encounter people who are listed. For example, officers are never to tell the suspects that they might be on the watch list, and they must immediately call the federal government for instructions.

In addition, it says, police officers and border agents are to treat suspects differently based on which “handling codes” are in the system.

Some people, with outstanding warrants, are to be arrested; others are to be questioned while officers check with the Department of Homeland Security to see whether it has or will issue a “detainer” request; and others should be allowed to proceed without delay.

The documents show that the F.B.I. is developing a system to automatically notify regional “fusion centers,” where law enforcement agencies share information, if officers nearby have encountered someone on the list. The bureau also requires F.B.I. supervisors to sign off before an advisory would warn the police that a subject is “armed and dangerous” or has “violent tendencies.”

The F.B.I. procedures encourage agents to renominate suspects for the watch list even if they were already put on it by another agency — meaning multiple agencies would have to be involved in any attempt to later remove that person.

The procedures offer no way for people who are on the watch list to be notified of that fact or given an opportunity to see and challenge the specific allegations against them.

Chris Calabrese, a counsel with the American Civil Liberties Union, called the watch list system a “Star Chamber” — “a secret determination, that you have no input into, that you are a terrorist. Once that determination is made, it can ripple through your entire life and you have no way to challenge it.”

But Mr. Healy said the government could not reveal who was on the list, or why, because that would risk revealing intelligence sources. He also defended the idea of the watch list, saying the government would be blamed if, after a terrorist attack, it turned out the perpetrator had attracted the suspicions of one agency but it had not warned other agencies to scrutinize the person.

Mr. Healy also suggested that fears of the watch list were exaggerated, in part because there are many other reasons that people are subjected to extra screening at airports. He said more than 200,000 people have complained to the Department of Homeland Security about their belief that they were wrongly on the list, but fewer than 1 percent of them were actually on it.”

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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F.B.I. Focusing on Security Over Ordinary Crime

August 25, 2011

The New York Times on August 23, 2011 released the following:

“By CHARLIE SAVAGE

WASHINGTON — Agents of the Federal Bureau of Investigation have been more likely to be hunting for potential threats to national security than for ordinary criminals in recent years, but much of the time found neither, according to newly disclosed internal information.

Data from a recent two-year period showed that the bureau opened 82,325 assessments of people and groups in search for signs of wrongdoing. Agents closed out most of the assessments, the lowest-level of F.B.I. investigation, without finding information that justified a more intensive inquiry.

Separately, the bureau also initiated 1,819 assessments during the period to identify any possible threats within particular geographic districts. That activity ranged from looking for the presence of particular organizations, like gangs or terrorist groups with definable characteristics, to evaluating other potential vulnerabilities, like a university with classified research and many foreign students.

The data, obtained by The New York Times under the Freedom of Information Act, offers a panoramic view of the bureau’s activities toward the end of a decade-long effort to transform the F.B.I. from a law-enforcement agency focused on solving crimes to a domestic intelligence agency whose mission is to detect potential threats before they can reach fruition.

The disclosure, covering March 25, 2009, to March 31, 2011, focused on assessments, which an agent may open “proactively or in response to investigative leads” and without first having a particular factual basis for suspecting a target of wrongdoing, according to the F.B.I. manual. Former Attorney General Michael Mukasey issued guidelines for the bureau creating that category in 2008.

During an assessment, agents may use a limited set of techniques, including searching databases about targets, conducting surveillance of their movements and sending a confidential informant to an organization’s meetings. But to use more intrusive techniques, like secretly reading e-mail, agents must open a more traditional “preliminary” or “full” investigation. Such inquiries require agents to first have a greater reason to start scrutinizing someone: either an “information or allegation” or an “articulable factual basis” indicating possible wrongdoing.

According to the data, during the 2009-11 period agents opened 42,888 assessments of people or groups to see whether they were terrorists or spies. A database search in May 2011 showed that 41,056 of the assessments had been closed. Information gathered by agents during those assessments had led to 1,986 preliminary or full investigations.

The data also showed that agents initiated 39,437 assessments of people or groups to see whether they were engaged in ordinary crime. Of those, 36,044 had been closed, while 1,329 preliminary or full investigations had been opened based on the information gathered.

Michael German, a former F.B.I. agent who is now with the American Civil Liberties Union, said the high number of assessments relative to the number that developed into more intensive investigations was cause for concern. He noted that the F.B.I. retained the data it collects about a target, even if the person or group turns out to be innocent.

“It’s clear the F.B.I. is casting its investigative net too broadly,” Mr. German said. “And remember that only a small proportion of ‘preliminary’ investigations become ‘full’ investigations, and only a small percentage of full investigations result in criminal charges. This data makes it clear that the ‘assessment’ authority granted in the attorney general guidelines is far too broad.”

But Valerie E. Caproni, the F.B.I. general counsel, said that the data showed that agents had been able to dispose of about 96 percent of the low-grade reasons they might have had for suspecting someone of wrongdoing, like a vague tip or some other ambiguous lead, using “low intrusion techniques” rather than by opening a potentially more invasive preliminary investigation.

The new investigation standards, Ms. Caproni said, “end up being privacy protective because previously, without a well-developed, robust assessment category, many if not most of those would have been opened as preliminary investigations.”

The newly disclosed data roughly matched a far more limited disclosure earlier this year about assessments of people and groups generated in late 2008 and early 2009, but the latest data covered a longer period and included additional detail. The data also bolsters the F.B.I.’s assertion that since the Sept. 11 attacks, the bureau has taken low-grade tips about national security threats more seriously than similarly vague and seemingly implausible leads about possible criminal activity. The 39,437 criminal assessments were based on 73,303 complaints received by the F.B.I., indicating that about half of the time, agents merely filled out a complaint form but saw nothing worth following up on.

In contrast, the disclosure did not offer a separate number of national security complaints, suggesting that some were not followed up with an assessment. The bureau says its policy calls for every national security-related tip, no matter how dubious, to be investigated. Still, Ms. Caproni cautioned that the assessment data did not offer a complete view of the F.B.I.’s activities. For example, she said, if the Central Intelligence Agency told the bureau that an overseas source had provided a specific claim about a terrorist cell operating inside the United States, agents would immediately open a more intensive investigation rather than starting with an assessment.

She also cautioned that some details about the numbers might be fuzzy. In the past, for example, the F.B.I. has noted that one assessment may uncover information that leads to more than one preliminary investigation. At the same time, agents may occasionally have neglected, when opening a preliminary investigation, to record the fact that it developed out of an assessment.

The new data also showed that while the agency has opened fewer assessments looking for broader intelligence about possible threats and vulnerabilities within a district, a category it calls Type 3 assessments, it has been slower to close them. Of the 1,819 it had opened during the period, 1,056 were open by May.

Those figures covered Type 3 assessments generated both by national security programs — like domestic and international terrorism, weapons of mass destruction and counterintelligence — and criminal programs, like civil rights, gangs, organized crime, violent crime and white-collar crime. The F.B.I. censored the specific breakdown for each category. The data release comes as the F.B.I. is preparing to issue agents a new version of its manual, the Domestic Investigations and Operations Guide, that will relax some rules about the techniques allowed at the assessment stage. Ms. Caproni said the new rulebook is at the printer now, and a partly redacted version is likely to be released to the public at the same time it takes effect around mid-October.”

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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