Judge OKs Update to Feds’ Terror-Reporting Tool

SAN FRANCISCO (CN) – A federal judge on Monday sided with the government in a case involving local law enforcement agencies’ ability to collect information about individuals suspected of terrorism even in cases where the reasons for suspicion are thin.

U.S. District Judge Richard Seeborg awarded the U.S. Department of Justice summary judgment and simultaneously denied summary judgment to a group of men who claimed they were entered into a terrorism database primarily because they are Muslim.

Seeborg found for the government on largely technical grounds, saying the plaintiffs failed to make the case that certain provisions of the National Suspicious Activity Reporting Initiative (NSI) violated federal procedure.

The NSI is a federal program used to collect and share suspicious activity of individuals in the United States. The program represents a formal procedure for what law enforcement does – collect information regarding domestic activity that may have criminal intent – but without the same restrictions on reasonable suspicion or probable cause.

Predictably, the program picked up steam after the 9/11 terror attacks, when law enforcement agencies were encouraged to share more information across platforms so gaps in intelligence could be bridged.

The program operates at three levels.

On the so-called front lines, beat policeman, traffic patrolmen and other local law enforcement officials who regularly intermingle with the public are encouraged to capture and report suspicious activity that may potentially relate to terrorist acts.

The second level is a so-called “fusion center,” where trained analysts assimilate and sift through the information the front lines provide.

Lastly, with the information gleaned, national law enforcement agencies use the vetted information to guide surveillance and other police tactics related to terrorism prevention.

The current dispute dates back to July 2014, when the American Civil Liberties Union and the Asian Americans Advancing Justice-Asian Law Caucus sued the government in federal court. They claimed a recently revised rule violated the Administrative Procedures Act, which guides federal agencies and their implementation of various rules.

None of the parties were eager to go to trial, instead bringing the case to have a judge decide whether the implementation of the rule was in concert with federal policy.

Despite the atmospherics of the case – whether several men were targeted due to their religious affiliation – it involved no constitutional questions of civil rights. Instead, the ACLU attempted to focus on the technical aspects of rule implementation, a gambit that ultimately proved unsuccessful.

“Because defendants have shown that adoption of the Functional Standard did not violate the APA, their motion will be granted and plaintiffs’ motion will be denied,” Seeborg wrote in the 10-page order.

The ACLU argued that the implementation of the Functional Standard was done without the appropriate comment period, but Seeborg said the rule was only a revision and did not require comment.

Despite the technical aspects of the case, the ACLU brought numerous instances of Muslim men who were entered into the federal database for seemingly innocuous behavior.

Plaintiff James Prigoff, an 86-year-old internationally renowned photographer of public art, was in Boston in 2004 taking pictures of a famous piece of art called the “Rainbow Swash” when he was asked by private security guards to stop. FBI agents showed up at his home several months later to question him about his activities in Boston.

The lead plaintiff Wiley Gill, a custodian at a state university who converted to Islam while a student, had his name put in the database after being identified as a “suspicious male subject in possession of flight simulator game,” according to the lawsuit.

Tariq Razak, a U.S. citizen of Pakistani descent who works in the biotech industry, was identified in one of the reports as a “male of Middle Easter decent [sic] observed surveying entry/exit points” at the Santa Ana, California, train depot.

He is described as exiting the facility with “a female wearing a white burka head dress,” according to the initial complaint.

Razak was trying to find his way to the county employment resource center, inside the depot, for an appointment, according to the lawsuit. The woman with him was his mother.

 

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