Foreign intelligence surveillance
In September 2001, the USA PATRIOT Act revised government restrictions on foreign intelligence surveillance, easing the limitations the FBI faced on searching for and seizing evidence. If a “significant” purpose of an investigation is “a foreign power or agent of a foreign power” or “any person” who “engages in international terrorism,” there is no requirement for the government to show probable cause that any crime or dangerous activity is being committed. (Before the USA PATRIOT Act amendment, the law required a foreign power to be the “primary” purpose of an investigation. See 50 U.S.C. 1804(a)(6)(b).)
Because the process for obtaining foreign intelligence surveillance warrants is completely secret, little is known about the targets of such searches. However, in one case, the Global Relief Foundation, an Islamic humanitarian aid organization, sued to challenge the warrantless search of their headquarters. In Global Relief Foundation, Inc. v. O’Neill, the reviewing court determined that the search was reasonable because the Attorney General had provided proof that it was done in a time of emergency, and that the FBI had probable cause to believe that the Global Relief Foundation was the agent of a foreign power. No evidence was ever shown at trial.
In 2002 Global Relief Foundation was listed by the U.S. Treasury Department as a “Designated Charity and Potential Fundraising Front Organization for Foreign Terrorist Organizations,” and was shut down.
Use of Informants by the FBI
Because the use of informants and the surveillance of public activity requires no warrant under federal law, both tactics have been used heavily since 9/11, and are arguably the most common techniques for investigating terrorism used in the past decade.
The FBI has used informants aggressively in investigating terror. In 2005, two members of a mosque in Lodi, California were convicted of giving material support to terrorists, acts brought to light by Naseen Khan’s service as an FBI informant. Khan, a Pakistani-American convenience store clerk, was paid over $200,000 for his work. Similarly, in Newburgh, NJ, Pakistani-American Shahed Hussain agreed to serve as an informant in exchange for immunity from federal fraud charges. His service led to the convictions of four members of the mosque on charges of conspiring to blow up two synagogues in New York City.
In both of the above cases, those on trial raised entrapment defenses, arguing that the coercive and manipulative practices used by the FBI led them to plan crimes they would not have otherwise committed. Shahed Hussain allegedly played the part of a wealthy terrorist sponsor, implying payment for the attacks and going as far as giving the defendants “bread money” while they made their plans. Naseen Khan allegedly threatened one defendant with physical force, saying that if he didn’t enlist at a Taliban training camp, Khan would take him there “by the throat.” Convictions in both cases were sustained.
Such manipulative practices are believed to be common. Craig Monteilh, another informant told by the FBI to pose as a Muslim convert at a mosque in Orange County, California, repeatedly pressured his fellow worshippers to engage in acts of terrorism. When another member of the mosque reported him to the FBI on suspicion on terrorist activity, he himself was arrested. For interesting coverage of this story, see This American Life’s interview with Craig Monteilh here.
The “Demographics Unit”
Arguably the largest terrorist investigation program outside of the federal government is the New York Police Department’s “Demographics Unit.” With the help of the CIA, the NYPD assigned specialized agents, referred to as “rakers” or “mosque crawlers,” to surveil so-called “ethnic” communities in New York City and beyond. These agents infiltrated mosques and recorded sermons, checked reading patterns of ethnic bookstores and libraries for “radical” materials, staked out coffee shops and Internet cafes, and infiltrated Arab or Muslim student groups. Examples of “suspicious” behavior include such simple things as speaking Urdu or claiming origins in South Lebanon.
The program was kept secret until 2011, when a building supervisor in New Jersey discovered one agent’s “safehouse,” became suspicious of terrorist activity, and notified the FBI.