See Something, Say Nothing

by Philip Haney

  The officer said he was passing on his write-up to Canadian officials “regarding possible inadmissibility grounds related to INA 212(a)(3) terrorism charges because of [his] potential inciting, endorsing, and associating with terrorists.”

  Badawi has “been looked at in the past, but hopefully this collection of twenty supporting open source articles will assist with making an informed admissibility determination,” the officer said.

  Citing immigration law, the officer said Badawi could also be barred from obtaining asylum in America because he may have participated in the persecution of Islamic women by describing circumstances in which they could be beaten by their husbands.4

  I’M PUZZLED

  A list of questions was prepared for Badawi to answer to determine if he was admissible to the United States.

  “Questions should be posed to Badawi,” the DHS officer wrote, “to determine the frequency, duration, severity, nature, purpose, and level of contact he had with Muslim Brotherhood officials and individuals associated with, or members of Hamas and organizations listed below and if Badawi knew, or should have known, that the groups and/or individuals were nefarious and/or involved in terrorist activity.”

  He concluded in a May 10, 2012, e-mail, however, “[It] looks like we won’t be able to do anything on Badawi tomorrow but we’re requesting the past lawsuits he filed against CBP to see if they were related to him being secondaried all the time, or if they were about his immigration status [admissibility/inadmissibility].”

  The officer said that if the lawsuits “were solely related to him being secondaried frequently, that has nothing to do with whether or not he is admissible.”

  “Once we get a determination on what the lawsuits were regarding, we’ll reevaluate if we can take future action against him,” he wrote.

  Later that day, in a follow-up e-mail, the DHS officer said the NTC watch commander advised that Badawi had sued CBP twice and is one of the several “hands-off” passengers nationwide.

  “I’m puzzled,” he wrote, “how someone could be a member of the Muslim Brotherhood and unindicted co-conspirator in the Holy Land Foundation trial, be an associate of Yusuf al-Qaradawi, say that the US is staging car bombings in Iraq and that [it] is ok for men to beat their wives, question who was behind the 9/11 attacks, and be afforded the luxury of a visitor visa and de-watchlisted.” He added, “It doesn’t appear that we’ll be successful with denying him entry tomorrow but maybe we could re-evaluate the matter in the future since the decision to de-watchlist him was made 17 months ago.”5

  KEPT IN THE DARK

  Nearly two years later, I provided copies of the e-mails to Sen. Charles Grassley, R-IA, chairman of the Senate Homeland Security and Government Operations Committee, and he immediately began seeking answers from DHS about the apparent “hands off” policy.

  On February 3, 2014, he wrote a letter to DHS Secretary Jeh Johnson, asking, among other things, why Badawi, who was not named in the letter, was removed from the watchlist in December 2010.6

  Pointedly, Grassley asked for details regarding the involvement of the then-DHS secretary, Janet Napolitano, in the removal of Badawi from the watchlist. He also asked what “qualifies someone to receive the ‘hands off’ designation” and whether or not “filing a lawsuit [would] result in being designated ‘hands off’ and thus avoiding secondary security screenings.”

  “Who makes the determination that an individual should be considered ‘hands off’?” the senator asked.7

  Grassley requested a response within one month.

  More than two months later, on April 10, 2014, the answer arrived, not from Johnson, but from Customs and Border Protection commissioner Gil Kerlikowske.

  Kerlikowske pleaded innocent, insisting the agency does not have the discretionary authority to admit an inadmissible alien. “Accordingly,” he wrote, “CBP does not have any list or other mechanism which would render an individual free of the grounds of inadmissibility or from any other inspection requirements, including secondary inspections.”8

  According to Kerlikowske, the “process is used only in situations where CBP has determined through a thorough inspection of the person that they are not the subject of the [watchlist] record.”9

  In a classic pass-the-buck maneuver, he also contended that the responsibility for watchlist records rests with the Justice Department: “The Terrorist Watchlist is maintained by the Terrorist Screening Center, which was created by the Attorney General and is administered by the Federal Bureau of Investigations,” the CBP chief wrote. “All questions related to the watchlist should therefore be referred to the Department of Justice for response.”10

  To his credit, Kerlikowske did offer to provide the senator with a “more detailed briefing on the particular case cited in your letter, in the appropriate setting.”11

  Clearly not satisfied with the response, Grassley made the e-mails public along with the text of his letter to Johnson.

  In May 2014, Grassley’s staff held a closed-door meeting with CBP officials, who refused to answer multiple questions about the “hands off” list, according to Grassley spokeswoman Beth Pellett Levine, the Washington Free Beacon reported at the time:

  CBP’s attempts to explain “the discrepancy” between the internal e-mails released by Grassley… and the official denials by CBP leaders were “unpersuasive,” according to Levine.

  CBP officials further refused to get “into details of the case,” making it virtually impossible for the senator’s staff to get concrete answers about the controversial list.12

  In July 2014, the Washington, DC–based government watchdog group Judicial Watch filed a Freedom of Information Act request with DHS for material related to what it called a “terrorist hands off” list. Specifically, Judicial Watch asked for a copy of a DHS inspector general investigation that supposedly addressed allegations about the existence of the list.

  After DHS refused to comply, Judicial Watch filed a lawsuit.

  Judicial Watch president Tom Fitton said in a statement that the Obama administration’s “unlawful secrecy on this ‘hands off’ list raises concerns about terrorists being allowed into the country. Even when it comes to protecting our borders from known terrorists, the Obama administration places secrecy and politics above national security. Our nation has reached a dangerous pass.”13

  More than a year after Badawi’s trip to Tampa, WZTV-TV in Nashville reported concerns raised about the Muslim leader’s appearance at the Islamic Center of Murfreesboro in Tennessee.

  On October 22, 2013, the station reported that the mosque was to host a November 3 forum called “God’s Books.” In response, an e-mail had been circulating within the local community warning that Badawi had “connections with radical Islam” and was an unindicted coconspirator in a federal terrorist funding case.

  The station said: “It’s a claim to date no member of law enforcement has publicly agreed with and we did some checking on Badawi with the U.S. Attorney’s Office. A spokesperson there tells FOX17 NEWS there are no alarms raised by any law enforcement agency concerning the Islamic speaker.”14

  Three years after the “hands off” list was revealed, in August 2015, Republican Sens. Jeff Sessions and Ted Cruz provided a long list of seventy-two foreigners who had been involved with or sentenced for terrorist activity who had been granted US entry. The lawmakers asked Attorney General Loretta Lynch and Secretary of State John Kerry to provide details on the immigration history of the individuals and their families that appear on the chart. The senators’ list “included terrorists with documented ties to ISIS and other radical Islamic groups … including individuals from Yemen, Saudi Arabia, Somalia, and Uzbekistan who have been criminally charged in recent years.”15

  “HARASSMENT”

  Back in Atlanta, on July 21, 2010, I was walking through secondary and noticed a well-known imam from Detroit, Ali Suleiman Ali, sitting among the other passengers in the waiting area. Since I already had background information on him,
I interviewed him and entered a report into TECS.

  By late September 2010, Ali and several other Michigan-area Muslims had filed a complaint of harassment, intimidation, and religious discrimination against the Border Patrol, FBI, DHS, and the Transportation Security Administration, as well as a number of “unidentified agents” from the same government agencies.

  The Michigan chapter of CAIR said it had dozens of reports from constituents claiming Customs and Border Protection agents had pointed guns at them and that they had been detained and handcuffed without charges and questioned about their worship habits.

  Since I had interviewed Ali, I was now involved in the case.

  On October 1, 2010, a senior adviser for DHS’s Office for Civil Rights and Civil Liberties wrote a legal memorandum to Margo Schlanger, an officer for CRCL, concerning the constitutionality of questioning subjects regarding religion.

  The senior adviser’s memorandum is summarized in the first paragraph:

  You asked me to examine case law regarding the permissible bounds of law-enforcement questioning of individuals regarding their religion, both at the border and within the United States. The query would encompass border inspections as well as consensual and custodial police interrogation, and law on religious profiling would also be relevant. But there is much less law in this area than one would expect. So, notwithstanding the fact that religious questioning and religious profiling implicate First Amendment considerations that questioning or profiling on ethnicity or race do not, there is relatively little to say, other than that courts presume the same limitations on religion-based police activity as on race-cognizant policing.16

  In an obvious move to create a test case on the “limitations on religion-based police activity as on race-cognizant policing,” on March 24, 2011, CAIR’s Michigan branch filed a formal complaint with DHS Civil Rights and Civil Liberties on behalf of Muslim Americans who reported similar treatment and questioning related to their religion and religious practices.

  In a May 3, 2011, response to the CAIR complaint, Schlanger stated, “Under 6 U.S.C. § 345 and 42 U.S.C. § 2000 ee-1, our complaint process does not provide individuals with legal or procedural rights or remedies. Accordingly, this Office is not able to obtain any legal remedies or damages on your behalf or that of the above complainants.”17

  Despite the fact that the Office of Civil Rights and Civil Liberties could not technically provide any “legal remedies or damages,” CRCL still opened an investigation on CAIR’s behalf, which was immediately posted on CAIR’s website:

  The Michigan chapter of the Council on American-Islamic Relations (CAIR-MI) today welcomed a decision by the U.S. Department of Homeland Security (DHS) Office for Civil Rights and Civil Liberties (CRCL) to launch an investigation into potential civil rights violations and profiling of Muslims by U.S. Customs and Border Protection (CBP) personnel at the United States–Canada border.

  On March 24, CAIR-MI filed complaints with both DHS and the Department of Justice (DOJ) seeking civil and potentially criminal investigations into dozens of reports from constituents who reported that CBP agents pointed firearms at them, detained and handcuffed them without predication of crimes or charges, and questioned them about their worship habits.18

  At the same time – as we discovered later through FOIA – the American Civil Liberties Union was also cooperating closely with DHS CRCL in the CAIR case, again through Schlanger:

  Margo,

  I wanted to let you know that retention letters relating to the CBP Religious Questioning Investigation were mailed this afternoon, with CAIR-MI also receiving a copy via e-mail (CAIR letter attached).

  The retention memo, which you and Audrey reached agreement on last week, has been put into final along with the request for information.19

  On the same day, May 4, 2011, Kareem Shora, another DHS CRCL official, sent an internal e-mail advising staff that CAIR was now publicly advertising the March 24, 2011, complaint, along with the May 4, 2011, decision by CRCL to launch an investigation into potential civil rights violations and profiling of Muslims by CBP personnel.

  Shora advised:

  Team FYI, I know this topic has come up in several of our roundtables relatively recently and not just in Michigan so wanted to make sure you all saw this since we may be asked about it in upcoming roundtables given that CAIR has publicized our open investigations into the issue. Of course we can confirm, per below, that we have an ongoing investigation and that it is not limited to Michigan but obviously cannot comment beyond that fact.

  Someone on the staff then asked:

  Kareem – So just be reactive, or can we pro-actively say we are investigating, but keeping to same level of detail?

  Shora responded:

  Might be a good idea to be proactive in events where it’s just CRCL, but I would not think it’s a good idea to be proactive at events where CBP is present.20

  In other words, don’t tell anyone outside the DHS Civil Rights and Civil Liberties circle what we are actually doing on behalf of CAIR, a known Muslim Brotherhood front group founded by individuals with confirmed links to Hamas and one of the leading Holy Land Foundation unindicted coconspirators.

  While the case in Detroit was still in progress, CAIR doubled down in a version of “biting the hand that feeds it” by attacking the DHS’s “If You See Something, Say Something” campaign. In an October 2011, letter directed to Schlanger, which we discussed in chapter 7, CAIR, along with other Islamic groups, claimed the campaign elicited “racial and religious profiling” and demanded to know “what policies the DHS uses, to collect, retain, and purge data obtained through the campaign.”21

  The letter indicates that nearly three years after the Holy Land Foundation trial, CAIR was still participating in the Civil Rights and Civil Liberties meetings and had direct involvement in the inner proceedings of a major branch of DHS.

  The terms “civil rights,” “civil liberties,” and “privacy protections” would be heard more and more in the next few years, culminating in the shutdown of major cases, limitations on investigations of individuals with potential links to terrorism, and restrictions on the ability of federal officials to evaluate the social media activities of foreign nationals seeking entry into America.

  It took an extraordinary amount of audacity for groups such as CAIR to participate in the US government’s counterterrorism efforts at the highest possible levels and then turn around and file lawsuits alleging discrimination, harassment, and intimidation against the very same government agencies.

  As preposterous as it seems, it was happening on a regular basis in virtually every agency with a nexus to counterterrorism.

  By 2012, it seemed as if the entire federal, state, and local law enforcement community was spending more time meeting with the leaders of American Muslim groups than it was investigating these individuals and their organizations for potential links to terrorism.

  It wasn’t a big mystery. There were numerous examples of probable cause for such investigations, but virtually nothing was being done. We knew groups such as CAIR, ISNA, and NAIT were linked not only to Hamas, but also to al-Qaeda and many other jihadist groups, as well as to financial crime, visa fraud, money laundering, and trafficking in illegal cargo.

  We repeatedly saw images of top officials meeting with the leaders of these organizations, while they reassured Americans they were being kept safe through “engagement and dialogue” and that we were all working together to “counter violent extremism.”

  For example, on February 8, 2012, FBI director Robert S. Mueller met with the leaders of several American Islamic organizations to discuss the results of a review of “inaccurate and offensive training materials” by subject matter experts chosen from the Army’s Combating Terrorism Center at West Point. Among the invited guests were members of ISNA, MPAC, the American-Arab Anti-Discrimination Committee, the Arab American Institute, and the Interfaith Alliance.

  A glimpse into the FBI’s emerging civil rights and civil
liberties–based view of counterterrorism policy can be seen in the March 22, 2012, Guiding Principles Touchstone Document on Training, which includes the following directives:

  FBI training must emphasize the protection of civil rights and civil liberties. Training must clearly distinguish between constitutionally protected statements and activities designed to achieve political, social, or other objectives, and violent extremism, which is characterized by the use, threatened use, or advocacy of use of force or violence (when directed at and likely to incite imminent lawless activity) in violation of federal law to further a movement’s social or political ideologies. This distinction includes recognition of the corresponding principle that mere association with organizations that demonstrate both legitimate (advocacy) and illicit (violent extremism) objectives should not automatically result in a determination that the associated individual is acting in furtherance of the organization’s illicit objective(s). [emphasis added]

  Training must emphasize that no investigative or intelligence collection activity may be based solely on race, ethnicity, national origin, or religious affiliation. Specifically, training must focus on behavioral indicators that have a potential nexus to terrorist or criminal activity, while making clear that religious expression, protest activity, and the espousing of political or ideological beliefs are constitutionally protected activities that must not be equated with terrorism or criminality absent other indicia of such offenses.22

  From the perspective of a law enforcement officer, one of the problems with official guidelines is that we’re never told what we can base a case on.

  Returning now to the CAIR lawsuit against CBP, in a follow-up to the original March 24, 2011, complaint and CRCL’s subsequent May 4, 2011, investigation into CAIR’s allegations, on April 13, 2012, Ali and several other plaintiffs filed a court injunction against CBP, the FBI, and TSA, alleging: