Indeed, the government’s ability to monitor such high-profile Muslim-Americans—with or without warrants—suggests that the most alarming and invasive aspects of the NSA’s surveillance occur not because the agency breaks the law, but because it is able to exploit the law’s permissive contours.
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.
According to documents provided by NSA whistleblower Edward Snowden, the list of Americans monitored by their own government includes:
• Faisal Gill, a longtime Republican Party operative and one-time candidate for public office who held a top-secret security clearance and served in the Department of Homeland Security under President George W. Bush;
• Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases;
• Hooshang Amirahmadi, an Iranian-American professor of international relations at Rutgers University;
• Agha Saeed, a former political science professor at California State University who champions Muslim civil liberties and Palestinian rights;
• Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), the largest Muslim civil rights organization in the country.
The individuals appear on an NSA spreadsheet in the Snowden archives called “FISA recap”—short for the Foreign Intelligence Surveillance Act. Under that law, the Justice Department must convince a judge with the top-secret Foreign Intelligence Surveillance Court that there is probable cause to believe that American targets are not only agents of an international terrorist organization or other foreign power, but also “are or may be” engaged in or abetting espionage, sabotage, or terrorism. The authorizations must be renewed by the court, usually every 90 days for U.S. citizens.
The spreadsheet shows 7,485 email addresses listed as monitored between 2002 and 2008. Many of the email addresses on the list appear to belong to foreigners whom the government believes are linked to Al Qaeda, Hamas, and Hezbollah. Among the Americans on the list are individuals long accused of terrorist activity, including Anwar al-Awlaki and Samir Khan, who were killed in a 2011 drone strike in Yemen.
But a three-month investigation by The Intercept—including interviews with more than a dozen current and former federal law enforcement officials involved in the FISA process—reveals that in practice, the system for authorizing NSA surveillance affords the government wide latitude in spying on U.S. citizens.
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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.
“I just don’t know why,” says Gill, whose AOL and Yahoo! email accounts were monitored while he was a Republican candidate for the Virginia House of Delegates. “I’ve done everything in my life to be patriotic. I served in the Navy, served in the government, was active in my community—I’ve done everything that a good citizen, in my opinion, should do.”
(An Intercept video interview with Gill is below, as are videos of Ghafoor and Awad.)
“I believe that they tapped me because my name is Asim Abdur Rahman Ghafoor, my parents are from India, I travelled to Saudi Arabia as a young man, and I do the pilgrimage,” says Ghafoor, when told that no non-Muslim attorneys who defended terror suspects had been identified on the list. “Yes, absolutely I believe that had something to do with it.”
The FBI—which is listed as the “responsible agency” for surveillance on the five men—has a controversial record when it comes to the ethnic profiling of Muslim-Americans. According to FBI training materials uncovered byWired in 2011, the bureau taught agents to treat “mainstream” Muslims as supporters of terrorism, to view charitable donations by Muslims as “a funding mechanism for combat,” and to view Islam itself as a “Death Star” that must be destroyed if terrorism is to be contained.
John Guandolo, a former FBI counterterrorism official who takes credit for developing a training program for agents on the “Muslim Brotherhood and their subversive movement in the United States,” told The Intercept that he participated in investigations of some of the individuals whose email accounts were monitored. Echoing the “red under every bed” hysteria of the McCarthy era, Guandolo believes that “hundreds” of covert members of the Muslim Brotherhood are active in the United States, that some of them have succeeded in infiltrating the Pentagon, and that CIA director John Brennan is a secret Muslim.
Other former and current federal officials say such beliefs are not representative of the FBI or Justice Department. But blatant prejudice against Muslim-Americans is also documented in the Snowden archive.
In one 2005 document, intelligence community personnel are instructed how to properly format internal memos to justify FISA surveillance. In the place where the target’s real name would go, the memo offers a fake name as a placeholder: “Mohammed Raghead.”
The vast majority of individuals on the “FISA recap” spreadsheet are not named. Instead, only their email addresses are listed, making it impossible in most cases to ascertain their identities. Under the heading “Nationality,” the list designates 202 email addresses as belonging to “U.S. persons,” 1,782 as belonging to “non-U.S. persons,” and 5,501 as “unknown” or simply blank. The Intercept identified the five Americans placed under surveillance from their email addresses.
It is unclear whether the government obtained any legal permission to monitor the Americans on the list. The FBI and the Justice Department declined to comment for this story. During the course of multiple conversations with The Intercept, the NSA and the Office of the Director of National Intelligence urged against publication of any surveillance targets. “Except in exceptional circumstances,” they argued, surveillance directly targeting Americans is conducted only with court-approved warrants. Last week, anonymous officials told another news outlet that the government did not have a FISA warrant against at least one of the individuals named here during the timeframe covered by the spreadsheet.
The FISA process was enacted in 1978 in response to disclosures that J. Edgar Hoover and a long line of presidents from both parties had used U.S. intelligence agencies to spy on dissidents and political enemies. Intended to allow authorities to covertly investigate suspected spies or terrorists on U.S. soil, the surveillance is often used simply to gather intelligence, not to build a criminal case. The law was revised in 2008—in part to place limits on the controversial program of warrantless wiretaps initiated by George W. Bush after 9/11, and in part to legalize the program’s warrantless eavesdropping on Americans when they speak with foreign surveillance targets.
Under current law, the NSA may directly target a “U.S. person” (an American citizen or legal permanent resident) for electronic surveillance only with a warrant approved by the Foreign Intelligence Surveillance Court. Because the FISC operates in complete secrecy—only the Justice Department and the FBI are permitted to attend its proceedings on domestic surveillance—it is impossible to assess how the court applies the standard of “probable cause” in cases of suspected terrorism or espionage. But its rulings are notoriously one-sided: In its 35-year history, the court has approved 35,434 government requests for surveillance, while rejecting only 12.
Law enforcement officials familiar with the FISA process told The Intercept that the FISC’s high approval rate is the result of a thorough vetting process that weeds out weak applications before they reach the court. The system, they added, seeks to balance what they consider to be the essential role of surveillance in protecting national security with the civil liberties of potential targets. The NSA issued a statement that reads in part: “No U.S. person can be the subject of FISA surveillance based solely on First Amendment activities, such as staging public rallies, organizing campaigns, writing critical essays, or expressing personal beliefs.”
But 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.”
A former Justice Department official involved in FISA policy in the Obama Administration says the process contains too many internal checks and balances to serve as a rubber stamp on surveillance of Americans. But the former official, who was granted anonymity to speak candidly about FISA matters, acknowledges that there are significant problems with the process. Having no one present in court to contest the secret allegations can be an invitation to overreach. “There are serious weaknesses,” the former official says. “The lack of transparency and adversarial process—that’s a problem.”
Indeed, the government’s ability to monitor such high-profile Muslim-Americans—with or without warrants—suggests that the most alarming and invasive aspects of the NSA’s surveillance occur not because the agency breaks the law, but because it is able to exploit the law’s permissive contours. “The scandal is what Congress has made legal,” says Jameel Jaffer, an ACLU deputy legal director. “The claim that the intelligence agencies are complying with the laws is just a distraction from more urgent questions relating to the breadth of the laws themselves.”
Government agencies have invoked a host of legal theories over the years to justify spying on Americans without obtaining individual FISA warrants. Prior to mid-2008, for example, the NSA could target Americans when they were located on foreign soil simply by obtaining an authorization from the attorney general. The NSA also relies on the so-called “FISA backdoor” to read the emails of Americans communicating with foreign targets without obtaining a warrant, and engages in the bulk collection of “metadata” from Internet service providers without individual warrants. In other cases, it can obtain a warrant against an entire organization—and then monitor the emails of individuals allegedly associated with the group.
While the NSA documents do not prove that the government has been systematically monitoring the communications of political dissidents, Jaffer notes that some of the most abusive surveillance practices carried out by the FBI during the 1960s were arguably legal at a time when many Americans believed that the groups targeted by Hoover’s FBI—including anti-government activists on the left and right—posed a threat to the country.
“Some of the government’s surveillance practices today are reminiscent of those earlier abusive practices,” Jaffer says. “Today’s American-Muslim activists occupy the same position that civil-rights and anti-war activists occupied during the 1960s.”
Current and former law enforcement officials reject that analogy, and say that the FISA process is too rigorous to permit any abuse. Still, several acknowledge that political speech is sometimes viewed as a sufficient reason to launch an investigation that can culminate in full-blown surveillance.
“If you are a political activist calling for violent jihad—yes, that could trigger an investigation,” says Marion “Spike” Bowman, the top FBI lawyer whose office handled all law enforcement requests for FISA surveillance under the Clinton and Bush administrations. Bowman stresses that such investigations are launched only when the bureau believes that speech has crossed the line into incitement.
When Edward Snowden turned over a trove of NSA documents last year, he explained that he included the spreadsheet of monitored emails because he wanted to give people subjected to electronic surveillance the opportunity to challenge the spying as unconstitutional. For years, the government has succeeded in having such challenges dismissed on the ground that the various plaintiffs lack standing to sue because they could not prove that they were personally targeted.
Thanks to Snowden’s disclosures, those seeking to obtain such a ruling now have specific cases of surveillance against American citizens to examine. So do those charged with reforming the FISA process. Richard Clarke, a former counterterrorism official in the Clinton and Bush administrations, served on the recent White House intelligence review panel convened to address concerns raised by the Snowden revelations. If he had seen the NSA spreadsheet, Clarke says, he would have asked more questions about the process, and reviewed individual FISA warrants.
“Knowing that, I would specifically ask the Justice Department: How many American citizens are there active FISAs on now?” he says. “And without naming names, tell me what categories they fall into—how many are counterterrorism, counterintelligence, espionage cases? We’d want to go through [some applications], and frankly, we didn’t. It’s not something that five part-time guys can do—rummage through thousands of FISA warrants.”
The “FISA recap” spreadsheet offers a revealing if incomplete glimpse into the murky world of government surveillance. Each email address is accompanied by a date that appears to denote the beginning of surveillance, and another that indicates when it was set to expire. A column called “Collection Status” indicates whether the surveillance was “terminated,” “sustained,” or “pending” as of a particular date. In some cases, the spreadsheet also names the federal agency that requested the surveillance, and a terrorist group, target, or foreign power affiliated with the email address. In addition, each address has a corresponding “Case Notation” code beginning with the prefix “XX.SQF”—a designation that, according to other documents in the Snowden archive, is assigned to all “FISA accounts” as a unique identifier.
The five Americans whose email accounts were placed on the list come from different backgrounds, and hold different religious and political views. None was designated on the list as connected to a foreign power. Some have come under sharp public scrutiny for their activities on behalf of Muslim-Americans, and several have been investigated by the government. But despite being subjected to what appears to be long periods of government surveillance, none has been charged with a crime, let alone convincingly linked to terrorism or espionage on behalf of a foreign power. Taken together, their personal stories raise disturbing questions about who the government chooses to monitor, and why.
Gill is an American citizen whose parents emigrated from Pakistan when he was eight years old. He grew up in Northern Virginia, earned a law degree from American University in 1996, and joined the U.S. Navy. As a boy, he had dreamed of flying with the Blue Angels, but was disqualified as a pilot for poor eyesight. Instead, he became a JAG officer.
After leaving the Navy, Gill worked as a consultant for the American Muslim Council, which was founded by the political activist Abdul Rahman al-Amoudi to encourage participation by American Muslims in the political process. A Republican since high school, Gill joined the Bush Administration in the aftermath of 9/11, eventually moving to the White House Office of Homeland Security, where he briefly worked with Richard Clarke and obtained a top-secret security clearance. After roughly a year, he joined the Department of Homeland Security as a senior policy adviser, where he was cleared to access sensitive compartmented information, a classification level reserved for some of the nation’s most closely held secrets.
In 2003, al-Amoudi was arrested for participating in a Libyan plot to assassinate Saudi Crown Prince Abdullah and for illegal financial transactions with the Libyan government, crimes for which he eventually pleaded guilty. Because Gill’s name had turned up in al-Amoudi’s papers, he was investigated by DHS security officials and asked not to report to work pending the outcome. He told investigators that he had met al-Amoudi only three or four times and didn’t work closely with him during his time at the American Muslim Council. After passing a polygraph test, Gill says, he was told by DHS that he was “good to go” and returned to work.
Not long after that incident, Salon reporter Mary Jacoby wrote an article accusing Gill of failing to disclose his freelance work for the American Muslim Council on his application for a security clearance. (The clearance form asked for former employers; Gill, who had previously disclosed the consulting job to the White House and on a separate publicly available ethics disclosure, says he did not think he was being asked to list his freelance work.) The DHS again investigated Gill, and again cleared him of any wrongdoing. “Our investigation found no evidence to suggest that you falsified or intentionally omitted relevant information,” the acting inspector general informed Gill in a 2005 letter. He continued at DHS, he says, with full security clearance.
After leaving the government, Gill founded a law firm with his friend Asim Ghafoor. The NSA spreadsheet indicates that a year later, in April 2006, the email surveillance began. The agency apparently began monitoring a second email account of Gill’s in May 2007, the year he secured the Republican nomination for a seat in the Virginia House of Delegates. During that campaign, hardline neoconservatives in his own party—inspired by the work of the anti-Islamic pundit Frank Gaffney—resurrected the accusations that Gill had concealed allegedly nefarious ties to a Muslim group, provoking an outpouring of anti-Muslim animus. With the GOP divided over Gill’s candidacy, he narrowly lost the general election in November.
That same year, Gill and Ghafoor traveled to Sudan to meet with government officials there about representing the country in U.S. court. Many family members of victims of Al Qaeda terror attacks were suing the government of Sudan for aiding the operations; the white-shoe law firm Hunton & Williams was representing Sudan in similar litigation over the USS Cole attack, and Ghafoor wanted to pitch his services on the other cases. Ghafoor was ultimately retained, and Gill performed contract work on one case.
While Gill and Ghafoor both ended up being surveilled, none of the Hunton & Williams lawyers who represented Sudan appear to be listed in the NSA spreadsheet. Also missing from the list is any apparent mention of the multitude of American, non-Muslim politicians who have represented foreign governments, including former House Majority Leader Dick Gephardt (Turkey), former Senate Majority Leader Bob Dole (United Arab Emirates), former Rep. Bob Livingston (Libya), and former Clinton adviser Lanny Davis (Honduras post-coup).
Under U.S. law, Gill’s legal work for the Sudanese government could not have been used to justify targeting him for surveillance, absent any other evidence. “Representation of a foreign government in legal matters by itself does not make a U.S. lawyer an agent of a foreign power,” NSA spokesperson Vanee Vines said in a statement. According to the NSA spreadsheet, Gill’s surveillance was terminated in February 2008.
Asked whether he believes he would have been monitored by the NSA if he were not Muslim, Gill is blunt. “Absolutely not,” he says. “Look, I’ve never made an appearance or been a lawyer for anyone who’s been [associated with terrorism]. But there are plenty of other lawyers who have made those appearances and actually represented those governments, and their name isn’t Faisal Gill and they weren’t born in Pakistan and they aren’t on this list.”
Gill says he is deeply concerned by what the NSA was able to collect. “I’m sure there was private stuff with my wife where we were arguing about stuff, as well as emails of a more private nature,” he says. “Things that obviously I don’t want anyone looking at.”
Gill knows he faces a personal and professional risk in agreeing to discuss the government’s surveillance of his emails. “Maybe people will say, ‘Hey he was being surveilled—the government must have some reason for doing it, especially if there’s a FISA warrant.’ There will be a lot of folks who will say it was justified and there’s something there. I’m sure it’ll have some sort of negative impact with clients, and who knows what else.”
Despite those concerns, Gill agreed to discuss the surveillance. “The real reason I’m talking to you is that I don’t have anything to hide,” he says. “I didn’t do anything wrong. I served my country, the whole time.”
Ghafoor was born in St. Louis in 1969. A first-generation American whose Muslim parents emigrated from India, he has been a lawyer for two decades.
In 1997, Ghafoor worked for a Texas state representative, Ciro Rodriguez, who won a special election to the U.S. Congress. Ghafoor moved to Washington and became Rodriguez’s legislative assistant. At the time, he says, he was only one of three Muslim staffers he knew of on Capitol Hill.
Ghafoor left government shortly before 9/11 to become a public relations consultant, lobbyist, lawyer, and civil rights advocate on behalf of American Muslims. In the climate of anxiety after the attacks, the need for representation and access for American Muslims in Washington rapidly expanded. Ghafoor became a prominent behind-the-scenes operator on Capitol Hill for the Muslim community.
In 2003, the Al Haramain Islamic Foundation, a Saudi charity, hired Ghafoor after its U.S. assets were frozen by the Treasury Department over claims that it funded terrorist operations. The government alleged that there were “direct links” between the U.S. branch of the charity and Osama bin Laden. Al Haramain had previously been represented by some of the biggest and most prestigious American law firms, including the D.C. powerhouse Akin Gump. Ghafoor’s work with Al Haramain led him to other controversial clients, including Mohammed Jamal Khalifa, a brother-in-law of Osama bin Laden who was the subject of FBI and CIA surveillance for years, as well as the government of Sudan.
In 2004, during the Al Haramain litigation, the Treasury Department accidentally provided one of the foundation’s lawyers with a top-secret call log showing that the government had been eavesdropping on Ghafoor’s calls with his clients. FBI agents quickly showed up to retrieve the document, and they took Ghafoor’s laptop for a week to “scrub” it of any trace of the classified information. At the time, neither Ghafoor nor Wendell Belew, the other attorney whose conversations were monitored, knew what to make of the log. The following year, when James Risen and Eric Lichtblau of The New York Times revealed the Bush Administration’s illegal wiretapping program, Ghafoor realized that his attorney-client conversations had been surveilled without a warrant.
“When I received a document that proved I had been tapped talking to my clients, I was shocked beyond belief,” Ghafoor recalls. “It’s like finding out there was a peeping tom. You just wonder: What else did they violate?”
The attorneys and Al Haramain sued the U.S. government, claiming that the eavesdropping violated their constitutional rights. After nearly five years of litigation, Ghafoor was awarded more than $20,000 in damages and the government was ordered to pay his legal fees of $2.5 million. Those judgments were later reversed on appeal, on the grounds that the law does not explicitly entitle those targeted by surveillance to damages from the government, even if they prove that the surveillance was illegal.
In a 2008 article that featured Ghafoor’s case, a Justice Department official told the Times that the government does not specifically target attorneys. “It’s not as if we’re targeting the lawyer for surveillance,” the official said. “It’s not like we’re eager to violate lawyer-client privilege. The lawyer is just one of the people whose calls from the suspect are being swept up.” Last February, in response to revelations that the NSA had monitored the communications of a U.S. law firm representing the government of Indonesia, then-NSA chief Keith Alexanderassured the American Bar Association that the “NSA has afforded, and will continue to afford, appropriate protection to privileged attorney-client communications acquired during its lawful foreign intelligence mission.”
In Ghafoor’s case, however, the NSA appears to have gone beyond monitoring an attorney who represented clients in a case against the U.S. government. During the time he was monitored, from March 2005 until at least March 2008—at which point the NSA spreadsheet indicates that his surveillance was “sustained” for an unspecified period—Ghafoor was personally suing the government over its prior, illegal surveillance of his own communications.
The discovery that he was surveilled has not changed Ghafoor’s core views of his country. “I’m really proud to have grown up in the U.S.,” he says. “And if you ever tap my calls and read my emails you’ll see that even though I sued the government, I love my country. I love America.”
But Ghafoor has no doubts that he was placed under government surveillance because of his name, his religion, and his legal work. When he would go to court to represent Saudi interests, he points out, “there were over 40 lawyers from every blue-chip law firm in D.C. representing the Saudi government, Saudi princes—I’m not the only lawyer representing a foreign government.
“There were former Bush Administration officials representing Saudi entities, and I doubt their emails were tapped,” he continues. “And if they were, at some point some official would’ve said, ‘Why are we tapping [former Bush Justice Department official] Viet Dinh?’ I’d be shocked if they were tapping Viet Dinh. But Asim Ghafoor—’Oh, well he’s Muslim.’”
Saeed has lived in the U.S. since 1974, when, as a graduate student in Pakistan, he was accepted to Iowa State University. He became an American citizen in 1982, then received a second masters degree from the University of California at Berkeley and a joint Ph.D. from Berkeley and Harvard’s Kennedy School of Government. For years, he taught in the communications and political science departments at Berkeley and California State University in Hayward.
For two decades, Saeed’s political activism has been largely devoted to organizing American Muslims to register to vote and to participate in the political process: “I am an American, I am a Muslim, and I vote,” he declared in one 2003 speech. He founded the American Muslim Alliance, which The New York Times described in October 2001as “the main organization devoted to the political assimilation of the nation’s seven million Arab-Americans.” By 2009, the group grew to more than 100 chapters in more than 30 states, and Saeed met with high-ranking officials from both political parties.
In 2000, as chair of the American Muslim Political Coordination Council Political Action Committee, a coalition of four major Muslim organizations, Saeed announced the group’s endorsement of George W. Bush for president.
On the day of the 9/11 attack, Saeed was in Washington, D.C. He was scheduled to meet that afternoon with President Bush in the White House, along with several other prominent American Muslim leaders. In the weeks after the attack, he was again invited by Bush to the White House. The Times described him as a symbol of moderation and assimilation who urged Arab-American cooperation with law enforcement authorities and preached “forbearance…to his constituents alarmed at all the investigative attention American Muslims have been garnering.”
Since 9/11, however, Saeed has emerged as a leading advocate against sweeping and secretive government surveillance. He was one of the principal organizers against the 2006 reauthorization of the Patriot Act, serving as a coordinator for the California Civil Rights Alliance, which persuaded the California legislature to enact a resolution calling for limitations on the law.
The only notable public controversy involving Saeed occurred in 2000, two days after the American Muslim Alliance announced its endorsement of Bush. The New York Daily News attempted to demonize a $50,000 donation the group made to Hillary Clinton’s Senate campaign by highlighting Saeed’s support for the right of Palestinians to armed resistance against occupation if peaceful means fail—a right affirmed in a series of resolutions by the United Nations General Assembly.
Yielding to pressure, Clinton quickly condemned the remarks and announced that she was returning the donation. Her GOP opponent, Rick Lazio, attacked her for receiving “blood money” and criticized her and her husband for having invited Muslim-Americans who opposed the Middle East peace process to the White House.
But even if Saeed had asserted that Palestinian violence is justified in response to Israeli occupation, such a statement could not legally be used to authorize surveillance under FISA. In the 1969 case Brandenburg v. Ohio, the U.S. Supreme Court unanimously ruled that “advocacy of the use of force” is protected by the First Amendment unless it is likely to incite imminent violence. In a statement to The Intercept, the NSA also emphasized that “no U.S. person can be found to be an agent of a foreign power based solely on activity protected by the First Amendment.”
According to the NSA spreadsheet, the agency’s surveillance of Saeed began in June 2007 and was still sustained as of May 2008.
Today, Saeed suffers from advanced Parkinson’s disease, making communications difficult. Via email, he told The Intercept that he believes he was placed on the NSA list because of his political activism and his friendship with controversial figures such as Sami Al-Arian, a former University of South Florida professor and activist who pleaded guilty to a conspiracy to aid the militant group Palestinian Islamic Jihad in a case that many civil libertarians regard as prosecutorial overreach motivated by anti-Muslim hysteria.
“The government is always looking for a pretext to surveil people who are critical of policy,” Saeed said by telephone, with the help of an interpreter who can decipher his muffled speech. “Now it has become common to accuse people of Islamist ties to do this; before, it was communism and leftists. The FBI has questioned me over both these things in my lifetime. In the 1980s they were suspicious of me over my opposition to arming Afghan Islamists; now they accuse me of being an Islamist.”
Awad is the co-founder and executive director of the Council on American-Islamic Relations, the nation’s largest Muslim civil rights organization. A Palestinian born in Jordan, he was naturalized as an American citizen and has lived in the U.S. for more than two decades.
Awad has worked with U.S. officials at the highest levels. In 1997, he served on Vice President Al Gore’s Civil Liberties Advisory Panel to the White House Commission on Aviation Safety and Security, and he has personally met with Presidents Clinton and Bush, as well as former Secretaries of State Madeleine Albright and Colin Powell, to discuss issues relating to the American Muslim community. A few days after 9/11, Awad was one of the few American Muslim leaders who participated in a press conference with President Bush at the Islamic Center of Washington.
The bulk of CAIR’s work is devoted to protecting the civil liberties of Musli-Americans. (Full disclosure: Glenn Greenwald, a co-author of this story, has given paid speeches before CAIR’s regional affiliates.) The group frequently provides legal counsel to those who believe their rights have been infringed, and litigates constitutional challenges to state and federal laws. Awad says he is particularly incensed about the surveillance given the close cooperation that CAIR has provided the U.S. government in denouncing violent extremism. “The government knows very well that I am not a foreign agent,” he says.
Despite its political moderation and relationship to federal law enforcement agencies, CAIR became a primary target of hardline neoconservatives after 9/11. In 2007, the Justice Department named the group as one of more than 300 “unindicted co-conspirators” in its controversial prosecution of the Holy Land Foundation, then the largest Muslim charity in the U.S., which was eventually convicted of providing material support to Hamas. The Justice Department later attempted to justify its inclusion of CAIR by referring to wiretap evidence showing that in 1993, a Palestinian advocacy group that prosecutors believed was linked to Hamas met in a Philadelphia hotel and talked about founding CAIR. In 1994, Awad voiced public support for Hamas—before the group’s campaign of suicide attacks against civilians and subsequent placement on the State Department’s terrorist list in 1997.
“I do not support Hamas,” Awad says today, pointing out that the group was not involved in terrorist activities at the time he made the statement. “It was not on the list of organizations that sponsor or conduct terrorism by the State Department. And when the organization took those acts, CAIR has condemned it, repeatedly.”
Awad’s surveillance appears to have coincided with the timing of the Holy Land Foundation case: It began in July 2006, and two other email accounts belonging to Awad were added in September and November of that year. The surveillance is marked “terminated” as of February 2008.
The government’s denunciation of CAIR as an “unindicted co-conspirator” cast the group in a nefarious light while denying it the opportunity to defend itself in court. It also caused the FBI to terminate its formal community outreach efforts with the group in 2008, despite the fact that, as The Christian Science Monitorreported, “CAIR itself has never been charged with any wrongdoing.”
Awad cites how much scrutiny the group has received, combined with the fact that it has never been charged with a crime, as proof of its purely civic and legal activities. “Our door has been open for 20 years,” he says. “The government—obviously from the scrutiny we have seen so far—they know everything. And they know perfectly well that we are a transparent, above-the-board, American, true success story.”
Nonetheless, CAIR and its leaders have been publicly maligned as terrorist supporters by the Muslim-focused fringes of the far right, led by activists such as Frank Gaffney, Pamela Geller, and Daniel Pipes. FBI sources toldThe Intercept that CAIR is still on the government’s “radar screen,” and it was one of the primary targets of a 2011 investigation led by GOP Rep. Peter King into what he called the “radicalization of the American Muslim community.” The New York Times denounced those hearings as spreading “fear and bigotry” and seemingly “designed to stoke fear against American Muslims,” while Slate labeled them “Muslim McCarthyism.”
“I think all Americans should be worried about NSA surveillance and the targeting of American Muslims,” Awad says. “Because if it is American Muslims today, it is going to be them next. ”
Amirahmadi is a professor at Rutgers University, where he has been on the faculty since 1983, and is the former director of the school’s Center for Middle Eastern Studies. He is also the founder and president of the American Iranian Council, a nonprofit group devoted to public policy research on the relationship between the U.S. and Iran, and the president of Caspian Associates, a consulting firm that works with developing nations.
The AIC is affiliated with many senior U.S. government officials and diplomats. Its honorary board includes former Health and Human Services Secretary Donna Shalala and former Deputy Secretary of State Thomas Pickering, and its board of directors include former Senator J. Bennett Johnston and former Assistant Secretary of State Richard Murphy. Past directors include Cyrus Vance and Sargent Shriver. Vice President Joe Biden, Madeleine Albright, Secretary of State John Kerry, and Secretary of Defense Chuck Hagel have all spoken at events organized by Amirahmadi.
Amirahmadi has dual citizenship as an American and an Iranian. A secularist, he has twice launched quixotic candidacies to become the president of Iran (in 2005 and again in 2013) as a statement against the Iranian political establishment. He was prevented both times from appearing on the ballot by the Guardian Council, which controls the election process in Iran.
Amirahmadi holds many Western liberal views, describing homosexuality as a “non-problem” and pledging during his last campaign to name a female vice president. He has said that “every Iranian citizen regardless of their religion, ethnicity, race, color, gender … are equal in front of the law.” He has been a strong advocate for improving ties between the U.S. and Iran, and he vehemently opposes any attempt by Iran to acquire a nuclear weapon. He also recognizes the validity of Israel’s right to exist as a sovereign state. “Israel is a reality,” he says. “It has to be recognized as a reality.”
But mixed in with those conventional pro-Western views, Amirahmadi has voiced substantial dissent from America’s foreign policy toward Iran. Much of his work within the U.S. foreign policy community, in fact, has been devoted to persuading high-level officials that sanctions against Iran, as well as external efforts to bring about regime change, will backfire. In 2007, he defended the regime of Iranian president Mahmoud Ahmadinejad, claiming in an interview that Iranian connections to terrorism are a “myth” and that “Hezbollah and Hamas are not terrorist organizations, they are defending their country and their nations.” Last year conservative media outlets seized on those comments to mount a campaign against Hagel’s nomination as defense secretary, claiming that his association with Amirahmadi should disqualify him.
The Wall Street Journal editorial page and other neoconservative outlets also criticized Amirahmadi’s connectionsto the Alavi Foundation, a U.S. charity that federal investigators believe is controlled by Iran. The foundation donated money to Amirahmadi’s program at Rutgers, and has made similar contributions to Persian culture programs at Harvard University, Columbia University, and other schools.
Leaders in the Iranian expatriate community say privately that Amirahmadi cultivated ties to the Ahmadinejad regime in order to raise his profile as a potential broker of détente between the U.S. and Iran. The sources also note that he was in regular contact with the State Department over the past decade, and was an unlikely candidate for the role of foreign spy.
Amirahmadi, who does not self-identify as a Muslim and describes himself as an atheist, believes that the NSA surveillance was motivated by his diplomatic work, not his religious heritage. While he considers the surveillance to be illegal and has no objection to it being made public, he declined to comment further on the matter. His surveillance began in August 2007, with a second email account added in November of that year and a third in February 2008. The government’s apparent monitoring of Amirahmadi’s emails was still marked as “sustained” as of May 2008.
Even if the government obtained FISA warrants to monitor some or all of the five Muslim-Americans, the law’s standards do not always appear to be applied uniformly. More than a dozen former and current law enforcement officials contacted by The Intercept say that the process for seeking a FISA warrant is so bureaucratically complex and larded with privacy safeguards that it is essentially inviolate. If the surveillance court approved a warrant, they say, then the target must have deserved it.
“The Justice Department was notoriously difficult to get a FISA warrant through,” says Bowman, the top FBI lawyer for national security matters from 1995 to 2006. “They always wanted more than probable cause. And so they would frequently, at least 50 percent of the time, send it back [to the FBI] with questions.”
According to Bowman, whose office handled all requests for domestic FISA surveillance throughout the intelligence community, requests for warrants involve multiple stages of approval. Starting at an FBI field office, a request moves up through FBI supervisory agents at headquarters and attorneys at the bureau’s National Security Branch, then on to the Justice Department’s Office of Intelligence—with the various gatekeepers frequently rejecting applications or sending them back for further review. It is only once all the hurdles have been cleared, Bowman says, that the Justice Department prepares a formal application “package” for a judge with the Foreign Intelligence Surveillance Court.
Those packages, Bowman says, range anywhere from 35 to 150 pages. The warrant applications are supposed to establish probable cause that a target is an agent of a foreign power and is engaged in—or about to engage in—one of what Bowman calls the “three crimes” spelled out by the FISA statute: an actual or potential attack or other grave hostile act, sabotage or international terrorism, or clandestine intelligence activities. The standard for probable cause used by the court, Bowman adds, is “more than a suspicion, but less than a certainty.”
Taken together, he says, the hurdles and safeguards prevent any potential abuse. “I’ve never seen the FBI in my experience in the 11 years I was there, ever begin an investigation strictly on political issues,” Bowman says.
But one former law enforcement official paints a different picture of the process. FISC judges who approve the warrants, he says, often rely implicitly on the claims of the agents seeking them. “I got a lot of warrants signed by a judge at 2 a.m., in his pajamas in his living room. The judge would size you up, and if he believed you that you had probable cause, he would sign the warrant.”
One current senior federal prosecutor who has participated in high-level counterterrorism and intelligence cases also describes a looser standard for obtaining a FISA warrant. The process, he says, requires only that the government establish probable cause that the target meets a broad definition as an “agent of a foreign power”—not that they are actually engaged in terrorism, espionage, sabotage, or other criminal activity.
“If you are dealing with a foreign power, I don’t think you have any choice,” says the prosecutor. “I don’t believe it is realistic to say that you can only get a FISA when you have probable cause that an agent of a foreign power is committing a crime—because you’ll never know. And often the best way to figure out what is going on is not to prosecute them criminally, but to just watch what they do.”
Such a standard, law enforcement officials say, takes advantage of what amount to loopholes in the FISA law, which requires that warrants demonstrate probable cause that an agent of a foreign power is engaged in activities that “involve or may involve” criminal activity, are “about to involve” criminal activity, or constitute aiding someone who is. In a statement to The Intercept, an NSA spokesperson confirmed that warrants must demonstrate probable cause that targets “are or may be engaged in certain criminal activity … on behalf of a foreign power.”
Asked how many Americans could currently be under FISA surveillance given the looser guidelines he cites, the prosecutor is unequivocal. “I would think it would be a large number of people,” he says.
Whatever the merits of the process, it is clear that at least some of the law enforcement officials involved in it harbored conspiratorial and bigoted views about Americans of Muslim descent. John Guandolo, the former counterterrorism agent who was active at the time several of the five identified Americans were monitored, provides a candid view of that mindset. Asked by The Intercept about the men, he responded with a series of uncorroborated accusations, suggesting that many of them are part of a vast Muslim conspiracy to infiltrate and topple the United States from within.
To hear Guandolo tell it, Faisal Gill, the former homeland security official under Bush, was “a major player in the Muslim Brotherhood in the United States.” Asim Ghafoor, Gill’s fellow attorney, is “a jihadi” who was “directly linked to Al Qaeda guys” simply because of his representation of the Al Haramain Foundation. “He had knowledge of who they were and what they were doing,” Guandolo says. (Such logic would subject every lawyer representing defendants accused of terrorism to government surveillance.) To Guandolo, Agha Saeed was yet another secret operative for the Muslim Brotherhood. “He’s a pretty senior guy with them,” Guandolo says, “affiliated with several groups.” (“That’s a big lie,” Saeed says, “and given my life history, absurd” because he has “always been a leftist.”)
Such far-fetched accusations don’t bear serious scrutiny, given Guandolo’s increasingly bizarre and paranoid views since leaving the FBI. (Last year, for instance, he told a talk-radio host that CIA director John Brennansecretly converted to Islam and is a tool of Saudi intelligence.) But during his tenure at the FBI, Guandolo worked on cases to obtain FISA warrants, and his anti-Islamic views were deemed acceptable enough to be reflected in basic training materials within the bureau.
Numerous other current and former agents interviewed about the surveillance process say it’s possible that the overseas connections and political beliefs of the five Americans played a role in arousing suspicions. They cite Ghafoor’s representation of Al Haramain at a time when it was under so many terrorism investigations, and Amirahmadi’s ties to Iran at a time when the country was a major target of NSA surveillance because of its suspected nuclear weapons program and support for terrorist organizations.
One former FBI counterterrorism agent also said that Saeed’s speech echoing the UN resolution on Palestinian armed resistance likely helped lead the bureau to launch an investigation against him, although the government surveillance began seven years after that statement. While the comments alone wouldn’t have been enough to secure FISA authorization for electronic surveillance, the remarks may have been viewed as sufficient to get the process started.
Law enforcement officials say that the FBI’s interest in Gill was likely sparked by the smear campaign waged against him by neoconservatives. And they also cite Nihad Awad’s political comments and connections—including the public support that he offered for Hamas and the accusations against CAIR stemming from the Holy Land Foundation Case—as enough in the FBI’s eyes to merit an investigation that could lead to surveillance.
Asked about the document that refers to a potential target of FISA surveillance as a “raghead,” an NSA spokeswoman said the agency “has not and would not approve official training documents that include insulting or inflammatory language. Any use of racial or ethnic stereotypes, slurs, or other similar language by employees is both unacceptable and inconsistent with NSA policy and core values.”
The Justice Department did not respond to repeated requests for comment on this story, or for clarification about why the five men’s email addresses appear on the list. But in the weeks before the story was published, The Intercept learned that officials from the department were reaching out to Muslim-American leaders across the country to warn them that the piece would contain errors and misrepresentations, even though it had not yet been written.
Prior to publication, current and former government officials who knew about the story in advance also told another news outlet that no FISA warrant had been obtained against Awad during the period cited. When The Intercept delayed publication to investigate further, the NSA and the Office of the Director of National Intelligence refused to confirm or deny the claim, or to address why any of the men’s names appear on the FISA spreadsheet. Prior to 2008, however, FISA required only an authorization from the attorney general—not a court warrant—for surveillance against Americans located overseas. Awad frequently travelled to the Middle East during the timeframe of his surveillance.
Whatever the specific reasons and methods used to monitor the five men’s emails, the surveillance against them took place during the chaos and fear that enveloped the national security community in the years after 9/11. The Clinton Administration had avoided investigating potential links between Muslim charities and suspected terrorists, and the FBI was scrambling to catch up and scrutinize dozens of organizations on the orders of the Bush Administration. Those probes led to some prosecutions and convictions, but they also generated a huge backlash of criticism for targeting innocent groups. One former law enforcement official said that, while the FBI was diligent in trying to hew to the law, there may have been “some missteps” along the way.
Those missteps have landed heavily on Americans of Muslim heritage. Even when the surveillance process is overseen by officials and judges who don’t share the Islamophobic mindset of John Guandolo, mainstream and constitutionally protected forms of activism by American Muslims have come to be seen by some within the intelligence community as potentially dangerous—a dynamic that raises the potential for abuse, especially when warrants are issued in secret and authorized by a law that gives wide latitude to those seeking them. A Washington Post report earlier this week found that the government used FISA procedures to intercept and retain vast amounts of private data belonging to “ordinary internet users” who had no evident connection to terrorism or espionage and had been “caught in a net the [NSA] had cast for somebody else.”
Asim Ghafoor says his first-hand experience working on behalf of other Muslim-Americans has led him to believe that “the U.S. government embarked on a very systematic approach” to target his community.
“I saw the government specifically go after Muslim people who were involved in certain activities such as charity work, humanitarian work, political activism,” he says. “Maybe they had some website that had some speeches that nobody ever read or even noticed, maybe they had some bloodcurdling speeches. So the government just treated you like you were blowing up the next tower. They treated you like you were going to be the Manchurian Candidate, you were going to destroy America from within. There were U.S. attorneys, FBI agents, DHS agents, customs agents all over the country that were trying to find the next terror cell in their midst. If you were involved in those activities and maybe you were on a student visa and you didn’t quite fill out the paperwork, you were hosed. There is no question about it, you were worse off than a migrant worker in Dubai. You were just packed up and sent home. Life became very, very unbearable for them.”
Even a U.S. citizen like Faisal Gill, who served his country both in the armed forces and in the White House, found himself spied on by his own government. “I was a very conservative, Reagan-loving Republican,” he says. “If somebody like me could be surveilled, then [there are] other people out there I can only imagine who are under surveillance.
“I went to school here as a fourth grader – learned about the Revolutionary War, learned about individual rights, Thomas Jefferson, all these things,” he continues. “That is ingrained in you – your privacy is important. And to have that basically invaded for no reason whatsoever – for the fact that I didn’t do anything – I think that’s troubling. And I think that certainly goes to show how we need to shape policy differently than it is right now.”
Josh Meyer, who is the McCormick Lecturer in National Security Studies at the Medill School of Journalism and co-author of The Hunt for KSM: Inside the Pursuit and Takedown of the Real 9/11 Mastermind, Khalid Sheikh Mohammed, contributed reporting to this story.