Summary
This reviews an NYPD intelligence product; explores how the disclosures point to other jurisdictions providing inputs to federal databases; and concludes with recommendations for a multi-jurisdiction audit of data and databases which may have been improperly excluded from FOIA oversight by DOJ OLC.
Has possible multi-jurisdiction litigation (MDL) implications for the legal community.
Concerns there may be a potential conflict of interest in awarding and conducting audits of information systems subject to Federal government approval, review, and audit:
Code: The Director of the Bureau of Justice Assistance is authorized to make grants and enter into contracts with State, tribal, and local criminal justice agencies and nonprofit organizations for the purposes of identifying, targeting, and removing criminal conspiracies and activities and terrorist conspiracies and activities spanning jurisdictional boundaries.
The law enforcement community -- the very people having an interest in thwarting an investigation -- provide inputs to whether a grant to conduct this audit is or isn't properly awarded and completed.
Background
The NYPD, with assistance of CIA personnel and other federal-level agencies, reviews intelligence related to civilians.
Of public interest are the methods NYPD is using to gather information; and whether this intelligence collection and information use does or does not comply with federal, state, and local regulations.
One prong of analysis involves judicial review: Has the NYPD failed to fully comply with all court orders related to surveillance; or has it substantially met the judicial requirements? Part of the answer involves legal discovery, of which the NY Civil Liberties Union started litigation.
Note: NYPD Source document, dated November 22, 2006 via AP.
Summary
There is a noteworthy line of evidence emerging within the publicly disclosed NYPD intelligence documents. The errors could be simple grammatical errors, connected with information technology shortcomings; or they could be something suggesting how NYPD views their intelligence targets.
However, an emerging school of thought is that these grammatical and spelling errors within the documents point to multi-jurisdictional inputs to NYPD; suggesting that there are multiple (non-NYPD-controlled) data bases which NYPD is accessing, using, and updating to create, corroborate, and disseminate intelligence products.
It is incorrect to narrowly review the NYPD intelligence reports as a stove-pipe between the Federal and local levels; but should be viewed also horizontally, across multi-jurisdictions. This broader perspective has 1974 Privacy Act implications on data collection, retention, use, and transmission between local intelligence and law enforcement personnel; and up and down the chain between the local and federal levels.
A disclosure within the report suggests that NYPD has access to non-NYPD-sourced intelligence; suggesting that NYPD, working with other non-NYPD law enforcement personnel, are working to collect intelligence for users beyond the narrow NYC jurisdiction.
This has significance because if non-NYPD intelligence personnel are involved with collecting information, then the "NYC oversight issue of NYPD" is wider than NYC, but includes other non-NYPD personnel within other jurisdictions.
Details
The following information is from a report connected with the NYPD. The report was written in 2006.
Several lines within the report show some curious grammar errors. Let's review these "errors," then discuss whether the errors point to something noteworthy; and then review how this detailed analysis might provide others connected with the open media to review whether there are other indications that the NYPD is getting information from non-NYPD personnel in other jurisdictions.
This distinction is important because, for now, it appears NYPD would have us believe that NYPD relies on NYPD personnel who are stationed worldwide. If this analysis is correct, then it would suggest that the scope of the intelligence collection involves a method of collection, data aggregation, and direction that is outside NYPD; is not confined to NYPD; and would involved review procedures beyond NYPD.
Part I: Word Choices
IA: Amid v. Among:
Original
"The following Muslim Scholars are amid many Scholars who will anticipate:"
Source
At first glance, it appears the sentence
should read,
Possible Intention
"The following Muslim Scholars are amid among many Scholars who will anticipate participate:"
However, there is evidence within the document that the author might be more fluent in another language -- like Arabic -- than they are in English. It is possible that the author wrote the report with the objective of reporting how NYPD views the Muslim scholar community.
Let's consider the words:
Amid
Source
and
Anticipate
Source
"Amid," as it is commonly
used refers to something that is non-countable.Let's consider the distinction, from
this comparison:
Among
"Among is considered less formal of the two.
Source
It would make sense for a non-native English speaker to choose a "formal" version, especially in a report to the NYPD Police Commissioner, choosing the formal word "Amid" rather than "Among."
That distinction appears more strongly related the the author's view of relationship between the author and the reader; the author's view of the object of the intelligence gathering; and less about their accuracy in choosing one word from a list of words in a word processing program.
"Among" would be the correct use of the word, until we consider the possibility that NYPD is viewing the group as something that is non-countable, amorphous, and beyond specific knowledge.
Insight into NYPD View of Intelligence Target
"Books on English usage maintain that the word among should be used when it is followed by plural countable nouns or by a word indicating a separable group of people or things, congregation, crowd, etc,
"• The priest walked among his congregation, shanking [stet, should be "shaking"] hands with a few.
Source
As used by English speaking writers, "Scholars" refers normally refers to a group of individuals, especially when we consider the original report refers to a meeting of countable, observable scholars, whose names, in part, are included within the report.
It it noteworthy that the intelligence report refers to individual scholars by name; but by choosing not to use the word "among" -- but choosing "amid" -- suggests the opposite interpretation: That the Scholars, in the view of NYPD, were not individuals or a non-countable group like a "congregation," but were something amorphous like "confusion".
In this case, "Scholars" is capitalized, emphasizing the formality of the group, as prepared for the report's reader; and how the author views the word: As a homogenous, non-countable group.
Using that possible perspective, it might make sense for someone to choose, as was in the report, the word "Amid":
Amid
"Amid on the other hand is mainly used with uncountable nouns. It suggests that you are surrounded by something that is usually inseparable.
"• The three rebbers [stet, should be "robbers"] escaped amid the confusion that followed the fire.
Source
It appears the author incorrectly believed they had to choose between "amid" and "among," and chose the word which highlights a decision-criteria based on interesting factors, of interest to outside researchers and legal discovery teams:
Important Criteria to NYPD
• relationship
• individual or group familiarity with the target
• fear, emotion
• other intelligence information
• language knowledge of author/interrogator
Interestingly, this criteria tends to mirror the types of interrogation approaches used by interrogators, as disclosed in the Teguba Report, and connected with the SecDef interrogation methods within the Army and Department of Defense:
Similarity of Emerging NYPD Decision Criteria With Disclosed DoD Interrogation Methods
Fear up, fear down
Shame, guilt
Formerly known as FM 34-52, now known as FM2-22.3
See 66 of 106 for a discussion of the approaches, as disclosed during interrogation abuse investigations.
The problem with the word choice is that "Amid" when
properly used, would be connected with neither a group nor individuals, but with something non-countable, like "confusion" or "weather".
We believe that the author views the Muslim "scholars" as something that is both non-countable; and part of a mysterious entity which requires active engagement to understand: Something that was/is beyond their immediate understanding, like a strange cloud moving in unpredictable ways.
Analysis
It appears the author of the report is making a grammatical distinction between using the formal over the informal; and is using one word to refer to a group as non-countable entity, rather than the individuals within the group.
This perspective, if it springs from a valid analysis, suggests that NYPD views (or did view) Muslims -- from the outside -- as an amorphous, non-countable entity to be confronted to solicit responses and information; not as individuals or a group to engage with as citizens.
Part IB: "Anticipate v. Participate"
The sentence of interest is:
"The following Muslim Scholars are amid many Scholars who will anticipate:"
Source, Adobe P. 2 of 4
The word choice is interesting because it gives an indication of the likely options an NYPD detective is offered because of historical use of that word within departmental reports.
Rather than using "participate," it appears the NYPD word processing program tends to provide a superior rating to tactical-related terminology. Notice the word "anticipate" tends to suggest warning, danger, risk, and preparation:
NYPD Interest in Planning
1. to realize beforehand; foretaste or foresee: to anticipate pleasure.
2. to expect; look forward to; be sure of: to anticipate a favorable decision.
3. to perform (an action) before another has had time to act.
4. to answer (a question), obey (a command), or satisfy (a request) before it is made: He anticipated each of my orders.
5. to nullify, prevent, or forestall by taking countermeasures in advance: to anticipate a military attack.
Source
"Anticipate" appears to be something that has received greater weighting within the NYPD word processing software because NYPD, in part, takes action to gather information
before there is a
formal request from Federal Agencies.
This suggests informal information channels, outside the established procedures between providing direct taskings by the Intelligence Community to Senior NYPD management.
Rather, it would not be unusual to discover that external, federal intelligence agencies had two (2) sets of procedures: One for the formal, lawful requests; and a second, for questionable requests, that go directly to personnel, with or without direct NYPD management involvement.
There would be a down-the-chain request for information; an NYPD response to that request; and then a lessons-learned discussion to better "anticipate" that requirement, regardless whether the US Attorney General did or did not approve that proposed NYPD-generated plan to breach FISA.
DOJ OLC "Missing Memo" Related to Anticipatory Data Sharing
It appears NYPD senior management, even if they had received a DOJ AG denial for an NYPD-request to breach FISA, might justify a creative collection method on the chance that they were "anticipating" a terrorist attack.
The opposite information-flow-direction -- that of NYPD providing up-the-chain-inputs -- would be anticipatory, involve officer "discretion", and fall outside a specific tasking, but could be provided as "information sharing", regardless the specific intent to forward information that should not have been collected.
Information databases would not, in the (likely) DOJ OLC view, be "sharing" with a "non" approved agency, if that information was contained within a "protected" database, without the specific intent to provide that information to a non-lawful user.
Under this approach, the emphasis shifts from whether the data was or wasn't collected unlawfully; to whether it was specifically a breach of any law to access a database that "just happened" to contain information that should never have been collected. The former focuses on data; the second on databases.
DOJ OLC likely has argued that a physical database -- because it "substantially" supports terror-related investigations-- is itself protected as a national security asset, and cannot be subject to public review, nor comply with either the Privacy Act disclosures/compliance reviews or FOIA requests.
The above analysis tends to support the contention that there is a DOJ OLC "missing memo" related to the transfer of information from local law enforcement to federal agencies; and how the President may lawfully direct local law enforcement to support federal interests by providing "advisory" information within a protected database.
Part II: Indications of Multi-Jurisdicational Inputs
This section focuses on another phrase, which, as written, suggests the author -- supposedly working for NYPD in New York -- was using information from a source, report, or intelligence colleague within another jurisdiction.
A Local Report
"A converted Muslim, born in Washington and raised in Northern California"
Source
We believe someone living in NYC would "properly" use the lower case,
A Local Report
"A converted Muslim, born in Washington and raised in Northern northern California"
Source
"California" has no special meaning to a
New Yorker; and there is no reason to distinguish between "northern" or "southern"
California with a capitalization, unless the person who wrote the original report had within them a special meaning to distinguish between "Northern [capitalized] California" and "southern [not capitalized] California".
Someone living in NYC would not view "northern" California as special, nor worthy of capitalization, unless they were speaking with someone -- and using their written inputs -- from northern California.
This distinction is noteworthy because the correct use is: People who live within the region would capitalize "Northern California," while those living outside the region, would use lower case, "northern California."
Analysis
A "local report" could be a media report, or law enforcement/intelligence. Let's reconsider the timelines associated with the two factors -- reviewing the information in the databases, Factor 2; and writing the NYPD report, Factor 2.
Let's suppose for the sake of conversation, that the source of the report -- using the capitalized word Northern California -- was not an intelligence file, record, or information within an intelligence database.
The data, as written using Northern California, might have come from an open media source, like Wikipedia:
Comparing (a) Open Source With (b) NYPD Report
After striking some text from one version, notice the curious similarity between the two versions of the information, both capitalize "Northern", and the NYPD-report-text is essentially a cut and past from open source:
WikiPedia: Hamza Yusuf was born to two academics[7] in Washington State and raised in Northern California.
NYPD Report: "A converted Muslim, born in Washington and raised in Northern California"
Analysis
The capitalization of "Northern" California is significant, timely, and has relevance to open source information available before the November 2006 NYPD report was written.
The wiki-references to the Northern California pre-date the 2006 NYPD Report. Specifically, the text "Northern California" appeared in May 2005. The information on the wikipedia page was visible to the ODNI OSC Analysts before the NYPD detective wrote his report, one year later.
Word Choice Argument
When distinguishing between (a) the nation's capital and (b) the state on the west coast, people in New York refer to the District of Columbia, not as "Washington" but as "DC"; and there would be no reason to say -- in an NYPD report, using OSC information from wikipedia -- to be "redundant" and say "born in Washington State"; rather, they'd say, "DC" or "the district" and remove "State" from the report.
Rather, OSC Analysts under ODNI would likely have removed "State" because they knew the audience reading the intelligence read file would know DC would refer to "the capital," and "Washington" would refer to the State.
The issue is that the NYPD detective claimed within the NYPD report that he was reviewing:
Report: "As a daily routine the undersigned visited the following Muslim Student Association websites, blogs and Forums and found the following"
However, a wikipedia page is neither (a) an association website, (b) a blog, nor (c) a forum. It is open source, something the NYPD detective should not have the
time to review, unless he was reviewing information from a center that specializes in open source information, OSC under ODNI; or he was looking at information
outside what he said he was reviewing.
The NYPD detective was doing something larger than what he claimed in writing, and likely had direct access to the OSC products from ODNI. That establishes a possible connection between the NYPD and the President, NSC, and the federal-level data mining efforts.
We need more information about what the NYPD detectives were really doing, which federal-level databases and data they were accessing, and the relationship between the NYPD staff and the direct taskings that appear to be coming through the National Security Council, through ODNI, and into NYPD.
The issues are not just information sharing; but they are taskings from a federal agency to a local law enforcement unit; and whether that subsequent information sharing -- up, down, or horizontally -- fully complies with what the judicial offers, courts, and special masters have understood to be the restraints both on the federal government (CIA, FBI, ODNI, White House) but also the local law enforcement, not just NYPD but nationwide.
If you reject the above analysis -- and say that the analyst was not looking at the language on a non-disclosed wikipedia page -- then the most likely other option is for the NYPD analyst/detective to have access directly to an OSC-sourced database, including the LEGAT information provided to DOJ, and other locally-sourced intelligence from non-NYPD sources.
That NYPD (and other local level law enforcement) have access to OSC-sourced data is of interest to the public. Federal laws put restrictions on the FBI; but local law enforcement can bypass those restrictions, change the focus from "data" to "database".
The workaround likely includes agreements between local law enforcement (LE) agencies; and between the local and federal intelligence personnel for LE to act as local intelligence collector for the President, outside what the Congress, public, and local law enforcement oversight have been led to believe is or isn't permissible within FOIA and the Privacy Act restrictions to both data and databases.
We do not have enough information to know how the above questions do or do not relate to the likely DOJ OLC memorandum on the issue.
Either way, there's an apparent problem between what the public is led to believe about the nature of the information sharing as data; and what is really being sent (information, taskings) up and down the intelligence pipeline in the databases.
Support for Questions About Language Familiarity
As a side discussion, this is a sample of an interesting word-choice, raising questions about the English fluency, primary language, language specialty of the report author, and the timing between original intelligence collection and final report submission to the NYPD Commissioner, a two (2) month cycle.
The report was written in November 2006. This sentence raises a question of tense,
"In September 2006, a US consular offer has denied Dr. Tariq Ramadan's visa appliction"
A report published two months later indicates the author originally collected the information when it was first published -- in September 2006 -- but then failed to modify the language for final publication two months later, November.
If there was a proper reconciliation between the data the analyst originally collected, and the report dated two months later, the proper word choice would have been,
"In September 2006, a US consular officer has denied Dr. Tariq Ramadan's visa application"
Analysis
There are two factors to consider when examining the sentence:
Factor 1. Original Intelligence File
The time between when the information was formally disclosed, and the time that the analysts/detective reviewed this information; and
Factor 2. The NYPD Report
The time it takes to (a) examine an original report containing the information about the Consular offer, (b) write a summary report, then (c) forward that information to the NYPD Commissioner.
Factor 1 is a report timeline; Factor 2 is the timeline to access the database containing the original information.
Going back to the language, "has denied" is present-tense, written in September 2006; but the report, written after reading that information, was not updated, even two months later.
That original source language appears to be something that is a diplomatic message, possibly something a Legal Attache [LEGAT] at the consulate would have provided directly to DOJ; DOJ staff likely forwarded/posted that information to the intelligence database read file which NYPD had access.
Let's re-read the sentence, and add some notation to show the significance of the time-differences, along the two different factor-timelines:
• "In September 2006 [past tense, written by the NYPD detective after reviewing the data posted by DOJ to the intelligence file],
• "a US consular officer" [not named, because they may have been the source of the message to DOJ, or have been associated with LEGAT]
• "has denied" [present tense, written by LEGAT; but then reposted to the NYPD intelligence report, but unchanged by the NYPD detective]
• "Dr. Tariq Ramadan's visa application"
The inconsistent use of tense is noteworthy. Timeline 1 (the data posting timeline between the consulate, DOJ, and read by the NYPD analyst) suggests there is a speedy access of the intelligence information, soon after the event occurred.
Timeline 2 (the NYPD report generation timeline) suggests there is a longer-report generation cycle, one that is longer after the original access in September, and despite multiple attempts to gather additional information, there was no final review of the text originally read from the DOJ intelligence read file.
A speedy NYPD analyst access to information suggests there are loose data audits, little day to day reviews by the general counsel of that information access, and a routine operation to regularly access information.
A slower report-generation timeline, without updates to correctly review the correctness of that information, suggests the NYPD detective has little direct supervision, operates independently, and there's little legal review of that detective's access to the information.
Both scenarios point to likely NYPD documents that show easy access to questionably-collected information; and little legal supervision to review whether the review of that information is or isn't proper within either (a) the data access guidance; or (b) the database access, viewing, and inclusion within subsequent reports.
This suggests that even if NYPD detectives improperly accessed, collected, or used protected information, there would be little legal review of that access unless there was an external audit of (a) the data, it's access and use; (b) the database; and (c) the personnel who used and accessed both the data and the database.
Conclusion
NYPD views intelligence targets as an amorphous cloud to be confronted and probed, not as individuals to be respected.
The NYPD report was written using media inputs and intelligence sources outside NYPD. NYPD relies on information from intelligence databases from non-NYPD jurisdictions.
This use of non-NYPD sourced information raises questions about the use, transmission, and storage of information collected at the local level.
We believe US government officials have, using DOJ OLC memos, improperly made a distinction between (a) the data collected; and (b) the database used to retain, transmit, and archive information related to non-criminal activity.
The information may have been illegally collected and used; and DOJ OLC has likely argued that the database information system falls within an exception; and has likely (improperly) excluded the data within that database system from FOIA information audits by the Intelligence Oversight Board (IOB).
There is no public reporting of whether an FOIA-excluded database (per DOJ OLC) has properly or improperly retained, transmitted or stored data that has been improperly collected by local law enforcement per direction of the President, NSC, or ODNI.
Recommendations
1. NYPD Report Analysis
Readers should view the NYPD reports as a keyhole into other domestic intelligence activities by non-NYPD personnel outside the NYPD area of interest. Other non-NYPD personnel provide information to federal databases which other non-local personnel access, review, and analyze.
Review other NYPD-sourced documents for other indications that NYPD detective curious grammar, spelling, and word-choice may point to factors related to interrogation methods, federal oversight, database sharing, and improper retention of non-criminal information.
2. Audit
Conduct an audit of the database compliance procedures to understand when DOJ OLC memos were used to distinguish between data falling under FOIA; and databases falling within an (authorized/non-authorized) exception to FOIA.
3. DOJ OLC Missing Memos
Seek a DOJ OLC memo which distinguishes between data and databases. The anticipated DOJ OLC memo would review the lawfulness of the President or others in the federal-level Intelligence Community to task/request from a local law enforcement officer to (a) gather information on a protected target; then (b) provide that information to a database, rather than directly providing that protected, personal data to a (government, contractor, intelligence, law enforcement) person who is not specifically authored to access that private citizen information.