July 21, 2014

I. “Homegrown Terrorism” and the Preventive Approach to Investigations

Between 2002 and 2011, nearly 500 individuals were convicted of terrorism or terrorism-related offenses in the United States, with the federal government charging an average of about 40 individuals every year, according to Department of Justice data.[3]

Some of these cases resulted from what appear to have been deliberate attempts at terrorism or terrorism financing.[4] However, in most of the cases involving the use of informants we reviewed in depth for this report, the defendants do not appear to have been involved in terrorist plotting or financing at the time the government began to investigate them. Rather, in these cases, the government’s purpose appears to have been preventive: to root out and prosecute individuals the government believes might eventually plan and carry out acts of terrorism. To this end, the US government has substantially changed the way it conducts policing and investigations related to terrorism—loosening regulations and standards governing the conduct of investigations, and engaging in extensive surveillance and use of informants, particularly in American Muslim communities.

Post 9/11 Changes to Priorities and Rules Governing Federal Terrorism Investigations

Following the September 11, 2001 attacks, the FBI reorganized to make prevention of terrorism its top institutional priority, shifting resources from traditional crime investigations to counterterrorism. More than 40 percent of the FBI’s operating budget of $3.3 billion is now devoted to counterterrorism.[5]

In 2006, then-Deputy Attorney General Paul McNulty described the Department of Justice’s preventive approach as “doing everything in its power to identify risks to our nation’s security at the earliest stage possible and to respond with forward-leaning—preventative—prosecutions.”[6] Congress assisted by allocating significant funding to the FBI to further the goal of prevention.[7]

At the same time, the US government substantially downgraded legal restrictions on the Department of Justice and FBI in particular, which had been designed to protect civil liberties during investigations and some of which had been introduced in response to past abusive behavior.[8] Instead of authorizing limited criminal investigations, the rules authorize and encourage the FBI to perform what amounts to expansive intelligence collection. These changes include:

  • Increased surveillance of communications: Congress expanded the communications that may be subject to surveillance under the Foreign Intelligence Surveillance Act (FISA) (see section IV).
  • Expansive information collection: The Department of Justice, under revised Attorney General Guidelines, gave the FBI expansive authority to conduct pre-investigation “assessments”—gathering information in the absence of suspicion of wrongdoing or threat to national security—for unlimited periods.[9] As a Brennan Center study notes, the FBI can now “gather and store in their databases information about where individuals pray, what they read, and who they associate with.”[10] The FBI may also task and recruit informants from a particular community without any articulable suspicion of criminal activity, in contrast to previous limits.[11]
  • Invasive investigation techniques: FBI agents can now use invasive investigation methods—attending religious services or political events,[12] or tracking an individual’s movements—without having a reasonable indication that anyone is breaking the law. This is due to substantial revisions of the Attorney General Guidelines and the FBI’s Domestic Investigations and Operations Guide (DIOG).[13] (Some state and local law enforcement also engage in these activities, but they are not a focus of this report.)[14]

Theories of “Homegrown Terrorism” and “Radicalization”

At the same time, the FBI—as well as state and local law enforcement—developed new theories about “homegrown terrorism” and “radicalization.” The notion was that Al‑Qaeda would seek to recruit and radicalize American Muslims to conduct the next major terrorist attack, and use the US as a base for fundraising.[15] Over time, law enforcement also began to focus on the prospect of a “lone wolf” terrorist, who was inspired by Al‑Qaeda ideology but acted alone.[16]

According to “radicalization” theories, “violent extremists”[17] progress through particular stages and adopt extremist beliefs that may lead them to take violent or illegal actions.[18] At least at the federal level, these theories appear to have driven actual federal terrorism investigations, with FBI behavioral analysts seeking to identify terrorism suspects at various stages of the process.[19] Some studies have debunked radicalization theories, and even federal agencies have conflicting views on their validity.[20] The FBI now believes that the threat and activity of “homegrown violent extremists,” though growing, is also unpredictable.[21]

Fears of homegrown terrorism and radicalization theories have driven federal agencies to treat American Muslim communities as uniquely susceptible to terrorist propaganda and to subject them to greater government scrutiny.[22] Yet this assumption is unsubstantiated. As a 2009 Pew study put it, “[v]iolent jihad is discordant with the values, outlook and attitudes of the vast majority of Muslim Americans, most of whom reject extremism.”[23]

Widespread Surveillance of American Muslims and Use of Informants

With expanded authorities, and based on radicalization theories, the FBI has conducted surveillance on communities based on their religious and ethnic make-up. It has created demographic profiles to map the racial, ethnic and religious composition of neighborhoods, including the location of mosques and beliefs of congregants.[24] As we describe in section VII, the FBI has also used voluntary interviews and activities presented as “community outreach” to solicit information from American Muslims, which have fed fears of law enforcement and distrust within communities.

As part of the “assessments” that the FBI now has the authority to conduct, the FBI has utilized undercover agents or paid informants. Posing as newcomers or converts, informants infiltrate religious and cultural institutions in communities of which they are not already a part. As several journalists have documented, these informants secretly gather information on religious practices and political beliefs of community members attending mosques and participating in cultural events.[25] Informants may also pose as newcomers at coffee shops, delis, and other local hangouts, seeking to gather information or befriend and inform on locals they meet. It is not clear how often the FBI uses paid and unpaid informants generally, or in national security cases in particular, but in a budget request from 2008 the FBI stated it has over 15,000 paid informants.[26]

The FBI has repeatedly denied conducting surveillance solely based on race or ethnicity[27] or sending informants into mosques to “troll” for leads, although as we describe in the next chapter, it has clearly done the latter.[28]

The FBI has justified its “domain mapping” program, in which the FBI collects information on where ethnic and religious communities are located, by arguing that “terrorist and criminal groups target ethnic and geographic communities for victimization and/or recruitment.”[29] This approach to investigations is discriminatory and counterproductive, undermining trust in authorities in precisely the communities where law enforcement claims to want to build that trust.

[3] See Methodology. In analyzing the data, we relied on publicly available information released by the Department of Justice. In September 2013, a federal audit revealed that the Justice Department had overstated the number of terrorism convictions, as well as several other key indicators. Ellen Nakashima, “Audit: Justice Department office overstated terrorism conviction statistics,” Washington Post, September 17, 2013, http://articles.washingtonpost.com/2013-09-17/world/42141849_1_terrorism-charges-u-s-attorneys-horowitz (accessed June 18, 2014). It is not possible to determine how the audit’s findings relate to the information publicly released by the Justice Department because individual-level data were not provided, making it impossible to determine which inaccuracies, if any, were contained in the aggregated document.

[4] According to one study, since 9/11, terrorist attacks by American Muslims have caused 37 deaths within the US, spread over seven cases. Charles Kurzman, “Muslim-American Terrorism in 2013,” University of North Carolina, Chapel Hill, Department of Sociology, February 5, 2014, http://sites.duke.edu/tcths/files/2013/06/Kurzman_Muslim-American_Terrorism_in_2013.pdf (accessed June 18, 2014). There is no single definition of terrorism under international law, and many of the definitions used by countries are overly broad. However, the United Nations (UN) special rapporteur on human rights and counterterrorism has argued that the concept of terrorism includes only those acts or attempted acts “intended to cause death or serious bodily injury” or “lethal or serious physical violence” against one or more members of the population, or that constitute “the intentional taking of hostages” for the purpose of “provoking a state of terror in the general public or a segment of it” or “compelling a Government or international organization to do or abstain from doing something.” See UN Human Rights Council, Report of the Special Rapporteur on promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, Ten areas of best practices in countering terrorism, A/HRC/16/51, December 22, 2010, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/178/98/PDF/G1017898.pdf?OpenElement (accessed June 18, 2014), para. 28. Scheinin’s successor, Ben Emmerson, has stated he intends to “adopt and build” on these recommended practices. “Intervention,” UN Special Rapporteur on counter terrorism and human rights, Ben Emerson, speech before the Secretary-General’s Symposium on International Terrorism Cooperation, UN Headquarters New York, September 19, 2011, transcript at http://www.un.org/en/terrorism/ctitf/pdfs/sr_on_ct_and_hr_sg_symposium.pdf (accessed June 18, 2014). Similarly, the UN Secretary-General’s High Level Panel on Threats, Challenges and Change concluded that for a violent act to be deemed terrorist, its purpose must be “to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.” UN High Level Panel on Threats, Challenges and Change, “A More Secure World: Our Shared Responsibility,” December 2004, http://www.un.org/en/peacebuilding/pdf/historical/hlp_more_secure_world.pdf (accessed June 18, 2014), para. 164(d). For more information, see Human Rights Watch, In the Name of Security: Counterterrorism Laws Worldwide since September 11 (New York: Human Rights Watch, 2012), http://www.hrw.org/sites/default/files/reports/global0612ForUpload_1.pdf, pp.17-25.

[5] See US Department of Justice, Federal Bureau of Investigation, “Report to the National Commission on Terrorist Attacks upon the United States: The FBI’s Counterterrorism Program Since September 2001,” April 14, 2004, http://www.fbi.gov/stats-services/publications/fbi_ct_911com_0404.pdf (accessed June 18, 2014); US Department of Justice, Office of Inspector General, Audit Division, “The External Effects of the Federal Bureau of Investigation’s Reprioritization Efforts,” Audit Report no. 05-37 (September 2005), http://www.justice.gov/oig/reports/FBI/a0537/final.pdf (accessed June 18, 2014); US Department of Justice, Federal Bureau of Investigation, FY 2013 Budget Request At A Glance, http://www.justice.gov/jmd/2013summary/pdf/fy13-fbi-bud-summary.pdf (accessed June 19, 2014).

[6] Deputy Attorney General Paul J. McNulty, “Prepared Remarks at the American Enterprise Institute,” Washington, DC, May 24, 2006, http://www.justice.gov/archive/dag/speeches/2006/dag_speech_060524.html (accessed June 19, 2014).

[7] See US Department of Justice, Federal Bureau of Investigation, “Report to the National Commission on Terrorist Attacks upon the United States: The FBI’s Counterterrorism Program Since September 2001,” http://www.fbi.gov/stats-services/publications/fbi_ct_911com_0404.pdf (accessed July 11, 2014).

[8] See Amna Akbar, “Policing ‘Radicalization,’” UC Irvine Law Review, vol. 3, no. 4 (December 2013). For a description of past abuses and recommended reforms, see Senate Select Committee to Study Governmental Operations with respect to Intelligence Activities, 94th Congress, 2nd Session, “Final Report on Intelligence Activities and the Rights of Americans,” Book II, Rep. No. 94-755, April 26, 1976, http://www.intelligence.senate.gov/pdfs94th/94755_II.pdf (accessed June 19, 2014), p. 5. Human Rights Watch has previously documented abuses related to relaxation of legal standards regarding national security law enforcement practices. See Human Rights Watch, Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11, vo.17, no. 2(G), June 2005, http://www.hrw.org/reports/2005/us0605/us0605.pdf. For an analysis and comparison of the changing rules, see Brenan Center for Justice, Domestic Intelligence: New Powers, New Risks (New York: Brennan Center for Justice, 2011), http://www.brennancenter.org/sites/default/files/legacy/AGGReportFINALed.pdf (accessed June 19, 2014), p. 2.

[9] See John Ashcroft, US Department of Justice, The Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection § II.A (2003) (Ashcroft Guidelines), http://www.justice.gov.archive/olp/ag-guidelines-10312003.pdf (accessed June 24, 2014) (authorizing “the proactive collection of information concerning threats to the national security, including information on individuals, groups, and organizations of possible investigative interest, and information on possible targets of international terrorist activities or other national security threats”).

[10] Brennan Center for Justice, Domestic Intelligence: New Powers, New Risks, p. 2.

[11] See Michael B. Mukasey, US Department of Justice, The Attorney General’s Guidelines For Domestic FBI Operations § II.A.4.e, f, j (2008) (Mukasey Guidelines), http://www.justice.gov/ag/readingroom/guidelines.pdf (accessed June 24, 2014). Under previous guidelines, informants were only allowed in full investigations, and after 1983, in preliminary inquiries. FBI Domestic Security Guidelines, Oversight Hearings Before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 98th Cong. 67-85 (1983), § II.B.

[12] See Ashcroft Guidelines, § VI.A andB; see also, US Department of Justice, Federal Bureau of Investigations, Domestic Investigation and Operations Guide § 18.5.5.3.C (DIOG) (2011), http://vault.fbi.gov/FB%20Domestic%20Investigations%20and%20Operations%20Guide%20(DIOG)/fbi-domestic-investigations-and-operations-guide-diog-2011-version/ (accessed June 24,2014).

[13] For example, the 1976 Levi Guidelines, the high watermark of restrictions on the FBI’s powers, permitted a preliminary investigation only where there were “allegations or other information that an individual or group may be engaged in activities which involve or will involve the use of force or violence and which involve or will involve the violation of federal law.” Edward H. Levi, US Department of Justice, Domestic Security Investigation Guidelines § II.C. (1976). In contrast, the Ashcroft Guidelines permitted the initiation of preliminary investigations, which involve intrusive investigative methods, merely where “information is received of such a nature that some follow-up as to the possibility of criminal activity is warranted.” John Ashcroft, US Department of Justice, The Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations § II.A (2002) http://www.usdoj.gov/olp/generalcrimes2.pdf; Mukasey Guidelines, § II.B.3.b; see also DIOG, § 18.6.

[14] A growing number of state and local law enforcement are part of Joint Terrorism Task Forces with the FBI, which exist in 103 US cities. See US Department of Justice, Federal Bureau of Investigation, “Protecting America from Terrorist Attack: Our Joint Terrorism Task Forces,” http://www.fbi.gov/about-us/investigate/terrorism/terrorism_jttfs (accessed June 19, 2014).

[15] In its 2004-2009 Strategic Plan, the FBI noted: “The FBI’s greatest concern currently is the threat from Al-Qaeda attack cells” that “maintain strict operational and communications security” with “militant Islamic groups and mosques in the United States.” It warned of “an extensive militant Islamic presence in the United States” focused on “fund-raising, recruitment, and training.” US Department of Justice, Federal Bureau of Investigation, Office of Victim Assistance, “Federal Bureau of Investigation Strategic Plan: 2004 – 2009,” September 9, 2004, https://www.hsdl.org/?viewanddid=466149 (accessed June 19, 2004), pp. 26-27. NCJRS Abstracts Database (206803). See also, Donald Van Duyn, Deputy Assistant Director, Federal Bureau of Investigation Counterterrorism Division, testimony before the House Homeland Security Committee Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment, Washington, DC, September 20, 2006, transcript at http://www.fbi.gov/news/testimony/islamic-radicalization (accessed June 19, 2014) (“Al-Qaeda is also attempting to broaden its appeal to English-speaking Western Muslims”).

[16] In August 2011 President Obama stated, “[T]he most likely scenario that we have to guard against right now ends up being more of a lone wolf operation than a large, well-coordinated terrorist attack.” CNN Anchor Wolf Blitzer interview with Barack Obama, “Obama: Biggest terror fear is the lone wolf,” post to “CNN Security Clearance” (blog), CNN.com, August 16, 2011, http://security.blogs.cnn.com/2011/08/16/obama-biggest-terror-fear-is-the-lone-wolf/ (accessed June 19, 2014). This transition in focus was accelerated by the December 2008 Fort Hood shooting by US Army Major Nidal Malik Hasan, who had sought guidance from Al-Qaeda in the Arabian Peninsula figure Anwar Al Awlaki but ultimately acted alone. See William H. Webster Commission, “Final Report of the William H. Webster Commission on the Federal Bureau of Investigation, Counterterrorism Intelligence, and the Events at Fort Hood, Texas on November 5, 2009,” July 19, 2012, http://www.fbi.gov/news/pressrel/press-releases/final-report-of-the-william-h.-webster-commission (accessed June 19, 2014).

[17] The government defines “violent extremists” as individuals who support or commit ideologically motivated violence to further political, social, or religious goals. Although the government recognizes that right-wing and other ideology-based violence is of concern, it “prioritize[s] preventing violent extremism and terrorism that is inspired by al-Qaida and its affiliates….” Executive Office of the President of the United States, “Strategic Implementation Plan for Empowering Local Partners to Prevent Violent Extremism in the United States,” December 1, 2011, http://www.whitehouse.gov/sites/default/files/sip-final.pdf (accessed June 19, 2014), p.2.

[18] The government’s theories of radicalization are not uniform. The New York Police Department’s (NYPD) “conveyor belt” theory, described in a 2007 report, argues that predictable behaviors and patterns mark the journey of a terrorist, through various stages of extremist indoctrination and toward “jihadization,” i.e., planning for a terrorist attack. New York Police Department Intelligence Division, “Radicalization in the West: The Homegrown Threat,” May 2, 2007, http://www.nypdshield.org/public/SiteFiles/documents/NYPD_Report-Radicalization_in_the_West.pdf (accessed June 19, 2014). In 2009, the NYPD issued a revised version of the report that disavowed some aspects of the 2007 report, although Muslim and civil liberties groups criticized it as continuing to include “numerous errors and harmful stereotypes.” “NYPD Clarification of Radicalization Report a ‘Welcome First Step,’” Muslim Public Affairs Council, September 10, 2009, http://www.mpac.org/issues/national-security/nypd-clarification-of-radicalization-report-a-welcome-first-step.php (accessed June 19, 2014). The FBI’s radicalization theory likewise described stages: preradicalization, identification, indoctrination, and action. Carol Dyer et al., “Countering Violent Islamic Extremism,” FBI Law Enforcement Bulletin, vol. 76, no. 12 (December 2007), http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/2007-pdfs/dec07leb.pdf (accessed June 19, 2014), pp. 3-9.

[19] The FBI’s Behavioral Analysis Unit is involved in “operational threat assessment” and terrorism investigations, although we were only able to learn of its role as a consultant on the level of threat posed by an individual in one of our cases: Hosam Smadi (see section II). “Foiled: Inside the Smadi Case,” US Department of Justice, Federal Bureau of Investigation press release, November 5, 2010, http://www.fbi.gov/news/stories/2010/november/terror-plot-foiled/terror-plot-foiled (accessed June 19, 2010). For a general description of the unit, see US Department of Justice, Federal Bureau of Investigation, “Report to the National Commission on Terrorist Attacks upon the United States: The FBI’s Counterterrorism Program Since September 2001,” April 14, 2004, http://www.fbi.gov/stats-services/publications/fbi_ct_911com_0404.pdf (accessed June 28, 2014).

[20]For a discussion of divergent views of radicalization among US government agencies, see Faiza Patel, Rethinking Radicalization (New York: Brennan Center for Justice 2011), http://www.brennancenter.org/publication/rethinking-radicalization (accessed July 11, 2014), pp.13-18.

[21] “These individuals have no typical profile; their experiences and motives are often distinct,” Director of the FBI Robert S. Mueller told a US Senate committee in September 2012. “But they are increasingly savvy and willing to act alone, which makes them difficult to find and to stop.” Robert S. Mueller, Director, Federal Bureau of Investigation, statement before the Senate Committee on Homeland Security and Governmental Affairs, Washington, DC, September 19, 2012. “Supporters of these groups and their associated ideologies come from different socioeconomic backgrounds, ethnic and religious communities, and areas of the country, making it difficult to predict where violent extremist narratives will resonate.” Office of the President, “Empowering Local Partners to Prevent Violent Extremism in the United States,” August 2011, http://www.whitehouse.gov/sites/default/files/empowering_local_partners.pdf (accessed July 10, 2014), p. 1.

[22] See section VII.

[23] The Pew Forum on Religion and Public Life, “Little Support for Terrorism Among Muslim Americans,” December 19, 2009, http://www.pewforum.org/Politics-and-Elections/Little-Support-for-Terrorism-Among-Muslim-Americans.aspx (accessed July 10, 2014).

[24] In 2003, Newsweek reported that top FBI officials had ordered each of the Bureau’s 56 field offices to develop “demographic” profiles of their localities that included tallies of the number of mosques, “to help set investigative goals.” Michael Isikoff, “Investigators: The FBI Says, Count the Mosques,” Newsweek, February 2, 2003, http://www.thedailybeast.com/newsweek/2003/02/02/investigators-the-fbi-says-count-the-mosques.html (accessed June 19, 2014). In October 2006, the New York Times reported the FBI’s adoption of a new program called Domain Management, a data-mining system used to “identify threats.” A high-level FBI officer reportedly put on a demonstration of Domain Management for other FBI agents, displaying a map of San Francisco “pocked with data showing where Iranian immigrants were clustered,” where, he said, “an F.B.I. squad was ‘hunting.’” Scott Shane and Lowell Bergman, “F.B.I. Struggling to Reinvent Itself to Fight Terror,” New York Times, October 10, 2006, http://www.nytimes.com/2006/10/10/us/10fbi.html?pagewanted=printand_r=0 (accessed June 19, 2014). Documents that the American Civil Liberties Union (ACLU) obtained through FOIA corroborate these reports. American Civil Liberties Union, “ACLU EYE on the FBI: The FBI is Engaged in Unconstitutional Racial Profiling and Racial ‘Mapping,’” October 20, 2011, https://www.aclu.org/files/assets/aclu_eye_on_the_fbi_alert_-_fbi_engaged_in_unconstitutional_racial_profiling_and_racial_mapping_0.pdf (accessed June 19, 2014). For an analysis of this and related practices, see Akbar, “Policing ‘Radicalization,’” UC Irvine Law Review.

[25] For example, in February 2012, FBI informant Arvinder Singh alleged that the FBI asked him to infiltrate mosques throughout Iowa and particularly in Des Moines, giving him pictures of persons of interest and asking him to report on their conversations. Kiran Khalid, “Iowa Muslim Leader: Law enforcement betrayed us,” post to “In America” (blog), CNN.com, January 3, 2012, http://inamerica.blogs.cnn.com/2012/02/03/iowa-muslim-leader-law-enforcement-betrayed-us/ (accessed June 19, 2014). In another case, paid informant Craig Monteilh alleged that the FBI directed him to “gather as much information on as many people in the Muslim community as possible” at an Irvine, California mosque in July 2006—only two months after reportedly assuring the local community that they were not under surveillance. See First Amended Complaint Class Action ¶¶ 86-146, Fazaga v. FBI, 844 F.Supp.2d 1022 (C.D. Cal. 2012) (No. 8:11-cv-00301-CJC(VBKx)); “This American Life: The Convert,” Chicago Public Radio, August 10, 2012; see also generally, Trevor Aaronson, “The Informants,” Mother Jones magazine, September/October 2011, http://www.motherjones.com/politics/2011/08/fbi-terrorist-informants?page=2 (accessed June 19, 2014); Petra Bartosiewicz, “To Catch a Terrorist: The FBI hunts for the enemy within,” Harper’s magazine, August 2011, http://harpers.org/archive/2011/08/to-catch-a-terrorist/ (accessed June 19, 2014).

[26] Department of Justice, Federal Bureau of Investigation, “FY 2008 Authorization and Budget Request to Congress,” http://www.fas.org/irp/agency/doj/fbi/2008just.pdf (accessed June 19, 2014), pp. 4-24.

[27] “The FBI does not investigate individuals, groups, or communities based on ethnicity or race.” “FBI Response to ACLU Report,” US Department of Justice, Federal Bureau of Investigation press release, October 20, 2011, http://www.fbi.gov/news/pressrel/press-releases/fbi-response-to-aclu-report (accessed June 19, 2014).

[28] Matt Apuzzo and Adam Goldman, “With CIA help, NYPD moves covertly in Muslim areas,” Associated Press, August 23, 2011, http://www.ap.org/Content/AP-in-the-News/2011/With-CIA-help-NYPD-moves-covertly-in-Muslim-areas (accessed June 19, 2014) (quoting then-FBI General Counsel Valerie Caproni: "If you're sending an informant into a mosque when there is no evidence of wrongdoing, that's a very high risk thing to do. You're running right up against core constitutional rights. You're talking about freedom of religion.”).

[29] “FBI Response to ACLU Report,” US Department of Justice, Federal Bureau of Investigation press release, October 20, 2011, http://www.fbi.gov/news/pressrel/press-releases/fbi-response-to-aclu-report (accessed June 29, 2014).