a citizen’s journal by Thomas Nephew

“It happens every day”: DHS supplied e-mails to MD State Police

Posted by Thomas Nephew on February 20th, 2009

I guess I thought this would get a little more attention than it has.  On Tuesday, the Washington Post’s Lisa Rein reported:

The U.S. Department of Homeland Security tracked the protest plans of a peaceful Washington area antiwar group and passed the information to the Maryland State Police, which had previously labeled the activists as terrorists in an intelligence file. The federal agency obtained two e-mails containing plans for upcoming demonstrations at a military recruiting center in Silver Spring in 2005, the first indication that DHS might have worked with the police to monitor advocacy groups.

While a DHS spokesman claimed the communications were “taken off the Internet,” that is disputed by Pat Elder, a leader of the group involved (the now dissolved DC Anti-War Network, or DAWN):

“They would have had to join our group as a member,” said Pat Elder of Bethesda, the leader of a national network that opposes military recruitment in high schools. He said he was in contact in 2005 with an activist in Atlanta about how to build the cardboard coffins frequently used by protesters against the Iraq war as a symbol of what activists have called needless military deaths.

The e-mails were forwarded to the Maryland State Police from a DHS office in Atlanta.

Nice database work!
It’s interesting how well coordinated the passage of information was.  It’s as if… as if… why, it’s as if there was some kind of federal database that would enable far-flung agencies to be aware of a mutual interest in a given “terrorist” like Mr. Elder once he was entered in the system.

Enter (perhaps) “CASE Explorer,” a brainchild of ONDCP’s High Intensity Drug Trafficking Area (HIDTA) program I’ve described before.  According to Maryland State Police Chief Richard Sheridan (uninvolved in the illegitimate Maryland surveillance) “CASE Explorer” was a mere electronic file cabinet into which harried Maryland State Police spies stuffed their hard days and evenings of work.  (When I think of all those meetings, I almost feel sorry for them.  Almost.)  In the same January report (“More Groups Than Thought Monitored in Police Spying“) by Ms. Rein, a Washington-Baltimore HIDTA official was at pains to soft-pedal the database:

HIDTA Director Tom Carr said his organization’s database became a dead end for the information because law enforcement agencies cannot access the data directly. The database instead acts as a “pointer”: Investigators enter case information and the database indicates whether another agency has related material and instructs investigators to contact that agency.

It hardly matters whether you can access all the data of a match directly — the main issue is to find out there’s anything out there in the first place.  If there is, you’ll get the rest soon enough if you need it, and if all you have is a couple of emails you’ve snagged somehow, well, you’ll know who to forward them to.  So while Mr. Carr reportedly claimed that “the activists were not a match with any other data,” that seems open to question after Tuesday’s news.

Nice email work!
Someone may be between a rock and a hard place about the e-mails as well.  When a DHS spokesman said about this matter, It happens every day,” I’m sure most of us would prefer to believe he didn’t mean “private emails about peacefully exercising First Amendment rights are obtained by an federal agency infiltrator on a daily basis, and supplied to state agencies busily engaged in unconstitutional, abusive, unwarranted surveillance of their own.”

But these days, who knows — maybe those emails were obtained by a federal agency known for its prowess and growing unscrupulousness in intercepting electronic communications.  It’s still not clear what exactly the “March rebellion” in 2004 at the Justice Department was all about (the one culminating in the hospital bed confrontation between Comey and Ashcroft versus Gonzales and Card).  And it’s not clear which legal niceties were re-established and which were not in the wake of Goldsmith et al’s little uprising.  Regardless, the word “terrorist” on Mr. Elder’s file might have sufficed to authorize electronic surveillance, no matter which agency was involved.

That all might seem somewhere between unlikely and fantastic, of course.  But so does spying on environmentalists, death penalty activists, peaceniks, and nuns.  The Tuesday report says Senators Cardin, Mikulski, and Feingold are asking questions, including:

  • How did DHS obtain the e-mails from a DAWN affiliate, and under what authority was this evidence collected? Does DHS have a record of this collection?
  • Were these e-mails obtained by an undercover agent or informant that had infiltrated the group, or through the use of a covert e-mail address?
  • If so, under what authority was this investigative activity taking place?
  • Under what authority were the e-mails disseminated to the MSP?
  • Does DHS have a record of this dissemination?
  • Was there a reasonable suspicion of criminality to justify collecting the e-mails?
  • What was the specified criminal activity? […]
  • How did the DHS official in Atlanta transmit the e-mails to the MSP? […] How did this official know to distribute the e-mails to MSP, and what was the intended result except to have MSP investigate the matter?

All good questions, and there are more. Pass the popcorn.

UPDATE, 2/20: Via the Maryland ACLU “No Spying” Info Page, the Mikulski-Feingold letter plus the 26 page attachment showing at least one of the e-mails involved, as well as the kind of “intelligence” gathered by the MSP. See also the Mikulski-Feingold letter to the FBI and Department of Justice.

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