Documents show DHS improperly spied on Nation of Islam in 2007

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By Spencer S. Hsu and Carrie Johnson
Washington Post Staff Writers
Thursday, December 17, 2009; A09

The Department of Homeland Security improperly gathered intelligence on the Nation of Islam for eight months in 2007 when the leader of the black Muslim group, Louis Farrakhan, was in poor health and appeared to be yielding power, according to government documents released Wednesday.

The intelligence gathering violated domestic spying rules because analysts took longer than 180 days to determine whether the U.S-based group or its American members posed a terrorist threat. Analysts also disseminated their report too broadly, according to documents obtained under the Freedom of Information Act (FOIA) by the Electronic Frontier Foundation, a civil liberties group.

The disclosure was included in hundreds of heavily redacted pages released by the Justice Department as part of long-standing FOIA lawsuits about the government's policies on terrorist surveillance, detention and treatment since the Sept. 11, 2001, attacks. It marks the latest case of inappropriate domestic spying under rules that were expanded after the terror attacks to give intelligence agencies more latitude.

In a written statement, Homeland Security (DHS) spokesman Matthew Chandler said the agency has since implemented "a strong and rigorous system of safeguards and oversight to ensure similar products are neither created nor distributed."

The agency, he said, "is fully committed to securing the nation from terrorist attacks and other threats, and we take very seriously our responsibility to protect the civil rights and liberties of the American people." The 2007 study, titled "Nation of Islam: Uncertain Leadership Succession Poses Risks," was recalled by agency lawyers within hours. The lawyers said it was not reviewed by the department's intelligence chief before release.

Charles E. Allen, who was DHS undersecretary for intelligence and analysis at the time, said that although violations were unintentional and inadvertent -- only publicly available information was collected -- the report should never have been issued.

"The [Nation of Islam] organization -- despite its highly volatile and extreme rhetoric -- has neither advocated violence nor engaged in violence," Allen wrote in a March 2008 memo. "Moreover, we have no indications that it will change its goals and priorities, even if there is a near-term change in the organization's leadership."

DHS clarified its intelligence collection rules in April 2008, and last December, then-Attorney General Michael B. Mukasey issued new terrorism and other domestic investigation guidelines.

Telephone messages for Ishmael Muhammad, a spokesman for the Nation of Islam in Chicago, were not immediately returned.

Allen, now a consultant with the Chertoff Group, said it was important for U.S. authorities not to limit unnecessarily their ability to monitor people who are moving from extreme ideas toward ideologically motivated violence, noting that al-Qaeda in 2006 shifted its strategy to train North Americans to engage in attacks.

"It's a fine line," Allen said. "We should not make the rules absolutely rigid, and they should be reviewed from time to time."

Nathan Cardozo, a legal fellow for the Electronic Frontier Foundation, called the documents "extremely disturbing."

Newly released documents also indicate the Justice Department considered bringing treason charges against John Walker Lindh, the Californian who became known as "the American Taliban" after he was captured in Afghanistan in 2001. That was contained in a December 2001 memo by John Yoo, a deputy assistant attorney general, and was released as part of FOIA litigation by the American Civil Liberties Union. In the memo, Yoo wrote that "treason cases have been rare in the Nation's history," but that Lindh's conduct "may fit the elements."

Staff writer Peter Finn and researcher Julie Tate contributed to this report.

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