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This is intended to be a working-document to add additional information, links, and details as more surfaces.

The information below is intended to point readers of this dairy to some additional lines of review, investigation, and documents.

Twitter: White House Linked With NYPD-CIA Domestic Surveillance

Summary

NYPD-CIA domestic surveillance is connected to the White House through ODNI. There are doubts Congress has indepedently reviewed the operations in New York with an eye toward FISA compliance.

DOJ OLC memos have likely been drafted to formalize the information transfer from NYPD-CIA through ODNI to Congressional staffers and the President.  There are technical connections linking ODNI offices with the White House.  

There is a distinction between data and databases, with exceptions for ODNI transferring unlawfully collected information for "substantial" national security purposes.

Because of larger Geneva-legal compliance issues, it is unlikely Congress or the President will submit to public oversight of the US government's connection with the NYPD-CIA domestic surveillance.

Background

This diary springs from some review of the AP articles and other documents related to the NYPD-CIA domestic surveillance.  This diary is not intended to be complete with robust citations; but highlight some concerns.

The order of this information is not intended to highlight one issue over another; and because all the details of the NYPD-CIA domestic surveillance are emerging, this diary will likely raise more questions and uncertainties and provide some conclusive statements.

Details

It's difficult to pinpoint when it first became apparent -- albeit, not obvious -- that there was something larger going on with the NYPD surveillance. Namely, it appeared there were some roadblocks to getting some concrete connections between the President/White House and what was going on in not just NYC, but at the local law enforcement level across the country.

Late last year, when the AP first disclosed its reporting publicly, and released documents related to the NYPD-CIA surveillance, there were some indications that non-NYPD personnel, agencies, and units were involved and had an interest in the NYPD operations.

First, let's consider the NYPD Supervisory Memo, which documented some concerns management had with a detective conducting local surveillance.  

NYPD Memo

"Notification of duties or requests by other units or agencies are not correctly or promptly communicated to supervisors."

I'm going to do multiple parsings on the above quote to highlight some different ways of looking at that specific statement.

Let's consider the reference to the "other units or agencies":

NYPD Memo

"Notification of duties or requests by other units or agencies are not correctly or promptly communicated to supervisors."

It's not clear whether "other units" refers only to NYPD; or whether there are other "units" involved; but what is clear is that NYPD management was distinguishing between "agencies" and "units" which were not the same as the NYPD Demographics Unit.

Let's consider the types of interactions between the external (non-NYPD/DU units/personnel) and the Demographic Unit (DU) activity.

NYPD Memo

"Notification of duties or requests by other units or agencies are not correctly or promptly communicated to supervisors."

The memo distinguishes between duties -- an action -- and a request, which is an important distinction between direction (which have greater legal leverage as a requirement) and requests (which a less legally enforceable than direction).

The request could be something as a request for information; or could be a request for action; NYPD may or may not have the legal capacity, authority, or ability to fulfill either a duty or a request from a non-NYPD agency or unit.

This emphasis shows a timing issue, not a legal concern:

NYPD Memo

"Notification of duties or requests by other units or agencies are not correctly or promptly communicated to supervisors."

Notice in the above emphasis that the question is whether a request or action is or isn't "promptly" communicated to the supervisors.  It's not that a request or duty is or isn't improper; but that a duty or request that is from an outside agency was or wasn't coordinated with the supervisory before that duty or request was communicated directly to the detective.

That's not a legal concern; but a question of timing: Even after the outside agency ignored or by-passed the NYPD supervisor, did the NYPD detective back-brief the NYPD management about this activity, request, tasking, or duty.

The supervisors weren't concerned that there were outside agency requests for information or direction; but that they were not informed of the outside interaction, communication, request, or direction.

This implies that there were understandings between the detective, demographics unit, and outside agencies about what was or wasn't a proper or improper request; and that these generalized rules were known, agreed to, and guiding between the (a) individual detective; (b) NYPD management; and (c) the external agency.

That relationship should be formalized within a memo, memorandum of agreement, policy, or other document between NYPD and that/those external agencies.

Analysis

There is evidence that NYPD personnel connected with the demographics unit and other NYPD units were interacting with external agencies.  For example, the document analyzing the Iranian intelligence operations discloses a "Liaison Unit":

Document: See page 4 of 10

"Liaison Unit"

It is unlikely that NYPD would solely coordinate with only foreign intelligence. Rather, this NYPD "Liaison" function would also likely include some of the same activities, functions, and operations of the targeted Iranian intelligence:
Open source research reveals that the [Iranian Intelligence Service] IIS is responsible for intelligence collection to support terrorist operations and liaison activities with supported terrorist groups.
Each of the underlined words would likely be something that NYPD-CIA would have developed: A program, activity, function to mirror, emulate, and incorporate within the domestic surveillance activity.

It makes no sense to believe NYPD-CIA recognized a foreign threat without NYPD-CIA and others developing a similar structure to perform and defend against that perceived threat.

Deleting the text specific to Iran and foreign terrorism:

Open source research reveals that the [Iranian Intelligence Service] IIS is responsible for intelligence collection to support terrorist operations and liaison activities with supported terrorist groups.
. . .discloses the types of NYPD operations which NYPD personnel -- working with the CIA -- would have been responsible for implementing:
Open source research . . .
is responsible for
intelligence collection to support . . .
operations and
liaison activities with
supported . . .
 groups.
Each of those functions, if taken as a composite, mirrors those functions of the federal government's ODNI, Office of Directorate of National Intelligence:
Open source research . . .
is responsible for
intelligence collection
to support . . .operations and
liaison activities with
supported . . . groups.
This analysis is not independent of other public information. What we can say publicly is that the Congress after 2002 worked with the President to assign direct tasking functions to ODNI.  That "direct" tasking function is one that mirrors the memo from the supervisor:

This emphasis shows

NYPD Memo

"Notification of duties or requests by other units or agencies are not correctly or promptly communicated to supervisors."

The disclosed information shows a connection between NYPD and external agencies (plural), that is routine, orderly, understandable, documented, and part of a regular, expected, and not surprising course of interactions. [See FRE 803 (6), "Records of a Regularly Conducted Activity"]

Federal Information in Acts of Congress, Congressional Record, Congressional Reports: Linking the President, ODNI, and NYPD-CIA Domestic Surveillance

ODNI was directed to be lead tasking agency to local law enforcement, something that is consistent with the disclosed information about the NYPD-CIA domestic surveillance.

ODNI was given the power to assign taskings:

These powers will allow the DNI to establish objectives and priorities for the intelligence community and manage and direct tasking of collection, analysis, production, and dissemination of national intelligence.

From: INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004--CONFERENCE REPORT, (Senate - December 08, 2004)

ODNI was tasked with coordinating inputs from local law enforcement
We have a new counterterrorism Center that will be the central focus for gathering information threats from law enforcement and intelligence agencies around the country.

From: INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004--CONFERENCE REPORT, (Senate - December 08, 2004)

ODNI was authorized exemptions to FOIA, expanded information sharing, and emphasized ODNI was part of the NCTC; and acknowledged that ODNI receives information:
The Act also facilitates information sharing with the National Counterterrorism Center (NCTC) by extending exemptions from Freedom of Information Act (FOIA) search requirements to operational files that have been provided to the ODNI, of which NCTC is a part.

See Page 11 of 60

One question is what happened to the civil liberties advocate within ODNI:
A Civil Liberties Protection Officer will ensure that the protection of civil liberties and privacy is appropriately incorporated into the policies and procedures
developed by the ODNI.

Report

Negroponte during his confirmation hearings as Director of National Intelligence, disclosed his conversations with local law enforcement, raising questions whether we can believe DOJ/FBI denials about what NYPD-CIA and ODNI were sharing:
I have made it a priority to meet with the Attorney General, the
Secretary of the Department of Homeland Security, the Director of the FBI, and law enforcement officials at the local level the make sure that we all as a team take advantage of the Intelligence Reform and Terrorism Prevention Act, using it to bolster our ability to protect ourselves and our national interests here in the United States I also have met with the Secretary of Defense, the National Security Advisor, the Director of the Central Intelligence Agency, and other senior officials responsible for United States security interests overseas.

2005 Confirmation hearing

This is a sample of the audit standards which applied to DHS and ODNI, and is connected with the President:
The Office of Intelligence and Analysis will continue to work closely with both the Department’s Program Assessment and Evaluation Office as well as the equivalent office in the Office of the Director of National Intelligence (ODNI) to ensure its approach, as well as that of the entire DHS Intelligence Enterprise, to performance management is consistent with the Government Performance Results Act, the President’s Management Agenda, Departmental and Intelligence Community guidelines, and the best practices both in the government and the private sector.

See 52 of 54

Indeed, the information sharing with local law enforcement was emphasized:
In order to have real information sharing, we must have a Department that not only can move information up the chain to the wider Intelligence Community but also down from the federal level to our state, local, and tribal partners.

DHS Objectives

Oversight Requirements: Governance Within A Legal Compliance Program

What is not well understood is the relationship the President, office of the Presidency, the White House, and National Security Council had through ODNI with local law enforcement, not just NYPD.

But what is not unclear are the technical and legal connections between Congress, the Executive Branch, and ODNI to perform this tasking function to, with, in concert with, and cooperation with local law enforcement.

Once the President and Congress agreed in public law to use ODNI as the lead tasking agency to local law enforcement for intelligence, Congress as the President/Executive Branch cooperated with a plan to use NYPD and the CIA to gather information for the federal government.

Doubts About Congressional Oversight

Congress has no new information from the AP because starting in 2004, when the appropriations bill was passed, Congress and the President were on the same page with respect to working through ODNI to mobilize, energize, and touch local law enforcement for federal-level intelligence operations.

Once ODNI started this tasking function with not just NYPD but all local law enforcement, there would have been operational guidelines, audit standards, and other legal oversight requirements.

We also know that NYPD personnel met with Congressional staffers after this ODNI tasking function was assigned. Congress, when it passed the authorization into law would have attached to the House and Senate Select Permanent Committees on Intelligence the oversight responsibilities to monitor how ODNI was interacting with local law enforcement to meet this federal mandate.

The same Congressional staffers involved through the House and Senate select committees on intelligence were also involved with FISA oversight, rendition, POW interrogation standards oversight/compliance.

Those Congressional reviews did not adequately occur until there were public reports of abuses.

What makes ODNI interesting is that its personnel are from the intelligence community, law enforcement, military, and legal. The same DOJ OLC memos written to explain away prisoner abuses were likely written to justify domestic use of local law enforcement not just for intelligence gathering but for direct operational support of operational requirements including planning, support, and field activity.

It's unclear why ODNI personnel have not raised legal concerns with the apparent conflict of using local law enforcement to collect information to be used by operational personnel in the Department of Defense.

Some have asked where to start, or how to connect the dots, or what was the CIA doing. Some of the answers lie in wikileaks.

If you look at the Diplomatic Cables near when Arar was transported to Syria, you'll discover an unfortunate disclosure: Jordanian intelligence personnel used a network of informants to learn the possible identity of who assassinated an American diplomat in Jordan.

NYPD Surveillance Similar to Jordanian Model

It appears the Jordanian system of networking and informant-development was useful because it was established, not something that had to be developed after the event.

Indeed, it appears one objective of the NYPD-CIA domestic intelligence model was to act as a mechanism to -- after an event -- gather information about possible suspects.  One question is whether there are explicit documents showing a relationship between what the CIA was learning about the Jordanians overseas, and what the CIA was guiding the NYPD to do domestically.

One possible connection are the key personnel assigned to the US government which have been publicly linked with Saudi Arabia and the US State of New Jersey.  Research will show the US FBI Director Freeh is from NJ; and that a highly placed US officer assigned to Saudi Arabia is also from NJ. We do not know how this connection with NJ may have factored into the NYPD-CIA decision to expand operations from NYC into NJ.

Of interest are the ODNI personnel connections with the Guantanamo abuse investigations.  It's one thing for the US government to "investigate" using "outside" personnel from "non" DoD agencies; it's quite another for the US government to use ODNI personnel -- responsible for the taskings to local law enforcement -- to appear in Guantanamo as if they were independent.

ODNI personnel have been linked to the Office of Vice President through specific meetings, and the personnel are not limited to the White House Council's office and General Counsel's office at the CIA.

NYPD At Guantanamo

Guantanamo is of interest because NYPD personnel were assigned to Guantanamo, along with Arizona law enforcement personnel to conduct interrogations.  [Details] This establishes that there was a federal-local connection to the prisoners and the detention center; and that the NYPD had a larger interest in collecting information than just in civilian sources near NYC. They were actively integrated within the national intelligence collection system, as a conduit of information to and from the federal levels.

It's unclear whether NYPD personnel were aware of methods used at Guantanamo; and how their access to Guantanamo squared with their claims re Arar and his transfer through Jordan to Syria.  They didn't want to retain him; but allowed him to be sent to a country which DOJ OLC pesonnel has previously raised legal concerns?

Interestingly, while DOJ OLC was discussing Arar, they were also claiming that DOJ could offer legal counsel at The Hague some legal expertise, albeit political pressure raising questions of independence during a Geneva Investigation. Unfortunately, the Spanish and Italians investigated much to the concern of the State Department, which has a NYC connection through the UN HQ.

Indeed, the above is a mish-mash of information, but this is how things appear to be unfolding:

1. Congress and the Office of the Presidency after 2004 knew full well that ODNI would directly task NYPD detectives to conduct operations of interest to the Joint Staff, CIA, and other federal level intelligence operations.

2. NYPD officers collected phone numbers to request FISA surveillance; when some of those requests were denied, NYPD officers conducted breaches of FISA, despite the DOJ AG knowing of those denials.

3. ODNI personnel had the experience, legal background, and knowledge to know that there were questionable requests going to local law enforcement; and those requirements were of a federal-level interest.

4. Congressional staffers, with knowledge of rendition, POW abuses, and FISA violations, were assigned "oversight" of the ODNI taskings to local law enforcement.

5. The White House, Office of the Presidency, and the President have received direct technical support to move, transfer, and provide data, technical support, and information from NYPD through ODNI to the National Command Authority, Joint Staff, and Office of Legal Counsel (DOJ OLC).

6. Domestic and foreign private contractors, consultants, agents, and their assignees have worked with current and formerly assigned intelligence, military, legal, and criminal justice personnel to make them available to support the Presidential-Congressional domestic intelligence collection and tasking mandate.

7. Congress has conflicts related to FISA violations, prisoner abuses, and rendition. Its unclear who or what has conducted oversight at the federal level of the disclosed connection between the US government, the White House, Congress, and the NYPD-CIA domestic surveillance operations.

8. All federal and state officials, including prosecutors have a legal duty under the Constitution to defend the established order, even when those domestic enemies are within NYPD, CIA, ODNI, Congress, or the White House.  Where impeachment proceedings were refused or scuttled, that inaction became a subject of war crimes jurisdiction:  Court officials, responsible for enforcing the laws of war but who refused, were implicated for alleged breaches of the laws of war when they failed to enforce the laws of war through prosecution, investigation, or evidence preservation.

Issues

Which ODNI personnel were assigned to conduct audits of the Guantanamo abuses; and how were their findings independently reviewed by ODNI IG?

What assistance, taskings, duties, or assignments did other federal agencies provide, direct, or task to NYPD; have those agencies been adequately included within the public calls for audits of their connection to the local law enforcement intelligence oeprations?

When did Congressional staffers assigned to the House and Senate Permanent Select Committees on Intelligence [SPSCI, HPSCI] first meet with NYPD personnel related to the ODNI taskings to NYPD; were notes from these meetings forwarded to Congressional legal counsel or other Congressional staffs or committees via email, memo, or other memorialization [See FRE 803, contemporaneous records as an exception to hearsay, Recorded recollections]?

Once DOJ AG learned that NYPD FISA requests were denied, what independent review did DOJ AG or the FBI do of NYPD or othe4r local law enforcement to determine whether those denials blocked NYPD; or was there no DOJ effort to ensure local law enforcement, contractors, or other agencies aware of -- or should have been aware of -- that FISA denial were, in fact, not conducting surveillance outside what FISA permitted?

What legal consequences were there for American citizens for refusing to cooperate with what could be violations of FISA, Geneva, or other federal statute?

When did legal counsel connected with ODNI first become aware of legal compliance concerns with using NYPD-CIA-sourced information for the federal government; and how were minority views considered and incorporated within the documents provided to the House and Senate oversight committees?

Conclusion

The disclosed NYPD demographics unit information points to Presidential connections with the NYPD-CIA domestic surveillance. This connection is not isolated to the Executive Branch.

The Office of Director of National Intelligence (ODNI) was directed by Congress and the President in 2004 to act as the lead agency to task local law enforcement. The language of the NYPD documents mirror this federal connection, tasking, and interest in NYPD operations.

NYPD-CIA domestic surveillance structure is similar to that of the Jordanian intelligence, and developed not only to gather information to prevent criminal activity, but to respond should there be an incident.  The system was not designed to not only prevent terrorism to to respond to the foreseeable chance that a terrorist event could occur.

DOJ OLC memos were written to formalize the legal authority of the President, Congressional Staffers, and others outside NYPD to access NYPD intelligence information. There was a distinction between the data collected and the database used to contain that information.

There are memorandums of agreement outlining how ODNI will receive, use, and transfer NYPD-CIA sourced information; and these handling, storage, and transfer rules create exceptions to the 1974 Privacy Act.

ODNI does not have an absolute requirements to comply with all provisions of the 1974 Privacy Act.  DOJ OLC memos have likely been written to permit the retention of data collected by NYPD, even when that information collection, retention, and transfer breaches the public perception of the intent of federal statute.

The President and Congress, including staffers assigned to the select permanent intelligence committees have larger problems than whether NYPD-CIA domestic operations did or did not comply with FISA or other federal statute. A larger issue is when US government officials were aware that information collected through ODNI was used to support grave breaches of Geneva at Guantanamo, Abu Ghraib, Eastern Europe, the CIA black sites, or the floating/sea-based vessels.

There is no statute of limitations for enforcing Geneva. It remains unclear what promise the US government gave to the telecoms via the 2008 FISA Immunity Act to thwart public knowledge of how ODNI personnel, the White House legal counsel, and Congressional staffers knew or should have known about the ODNI-NYPD-CIA role in gathering information used to abuse, mistreat, or otherwise commit grave breaches of Geneva.

Although the Supreme Court has denied Bivens to enforce abuses against prisoners, it remains unclear what remedy would be required to disclose information related to the White House connection with the NYPD-CIA domestic surveillance and alleged prisoner abuses in violation of Geneva.  

Where there are rights, there should be remedies. Without remedies under Geneva within US courts, foreign jurisdictions are authorized under the laws of war to conduct independent war crimes investigations of NYPD-connected personnel now assigned to ODNI and other federal agencies.  

Without a statute of limitations under the laws of war, NYPD-connected operations remain subject to perpetual domestic and foreign review and adjudication.  It remains unclear whether federal or state prosecutors would be disbarred for their failure to safeguard, retain, store, and protect evidence connected with these alleged war crimes.

The above is something DOJ OLC legal memos should have discussed, and should have been reviewed by Congressional legal counsel and outside contractors.

NYPD-CIA domestic surveillance is something bigger than the White House. They know it.  Thank you, AP.

Originally posted to Norlynda on Sun Mar 18, 2012 at 02:47 PM PDT.

Also republished by Occupy Wall Street, Progressive Hippie, and ClassWarfare Newsletter: WallStreet VS Working Class Global Occupy movement.

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