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Terror or Entrapment?

Five recent Bay Area terrorism cases by the FBI raise questions as to whether the bureau has enticed young, troubled Muslim men to attempt acts they wouldn't have otherwise committed.

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But the JTTF's activities have caused alarm in Muslim and Arab communities. Christina Sinha, an attorney with the Asian Law Caucus in San Francisco, said one of the biggest problems pertains to assessments.

"An assessment involves a range of information gathering about a person," explained Sinha. "It can include surveillance, interviews, and reviews of public information that's online." But Sinha said assessments, unlike criminal investigations, don't require a reasonable suspicion standard. Anyone can become a target of a JTTF assessment based on a random tip. And local cops have frequently helped the FBI conduct assessments, even though local police in California aren't supposed to pursue investigations unless they have, at minimum, a reasonable suspicion that a crime took place.

Sinha's legal practice involves counseling people who are the subject of a JTTF assessment. "We've tried to figure out how many people they're contacting and how many assessments are conducted annually," said Sinha, who worries that the JTTF opens many cases on baseless grounds that might result in violations of people's privacy, or worse.

"The majority start when people call on their neighbors who they're annoyed with or about a Muslim tourist who is taking a picture of a bridge," she said.

FBI officials acknowledged that most of the tips they receive don't lead to the opening of a formal investigation. Fair said the FBI's San Francisco field office got between 1,300 and 1,400 terror-related leads last year. In an average year, the field office conducts about 1,000 assessments. These can range from a single interview with a witness to a lengthy program of surveillance and information gathering before the agency opens a formal case.

The FBI defends the use of assessments as a discrete way of weeding out bad tips without having to open a resource-consuming and potentially disruptive investigation that involves DOJ attorneys. "We have a principle of least intrusive means," said Fair.

Mayo added that assessments aren't conducted for every tip. It's usually when a person expresses a willingness to commit violence. "We would conduct an assessment if somebody said, 'I want to blow up an abortion clinic,'" she explained.

And the FBI is adamant that race and religion play no part in guiding its assessments. "Our focus is solely on behavior," said Fair. "We are not looking at the Muslim community."

But Billoo of the Council on American-Islamic Relations, who also counsels people who are contacted by local police and FBI agents working through the JTTF, said some of her clients — she's had well over 100 in the past seven years — didn't appear to have made statements that could be construed as a criminal threat before the JTTF requested an interview. Instead, some simply made a business trip or took a vacation.

"I had a client who went to Islamic school in Mauritania and told [customs officers] at the airport when they returned," said Billoo. "They were visited by the FBI a few months later." She advised several other people who did nothing more than travel to some of the countries that were roiled by the Arab Spring protests of 2010 to 2012 and were later contacted by JTTF agents.

"They'd say, 'You're not in trouble. We're not investigating you. But we want to know if you can help us understand what is happening over there,'" said Billoo.

And when an FBI agent knocks on your door, many people aren't aware of their right to not consent to an interview. People may also be unaware that what they say goes in a file and is considered national security intel and might be used later in a criminal case.

The JTTF's files can be accessed by the FBI and other law enforcement agencies in the task force, including the Immigration and Customs Enforcement Agency (ICE). It's unclear how long the FBI retains the information or whether, if any of it is inaccurate, a person can get it changed. Billoo said it's difficult not to notice that the FBI is paying special attention to Muslim communities and that other religious, racial, or ethnic groups rarely report being the subject of bureau assessments. "As far as I have seen, if a case gets filed against a white supremacist, it's because they actually carried out what they say they're going to do," said Sinha. "It's as though it's not possible for a non-Muslim to be a terrorist."

Fair and Mayo said that domestic terrorism investigations are carried out by a different team of agents than those who are focused on terror suspects with links to foreign organizations. They denied that domestic terrorists, which they said can include anarchists, sovereign citizens, and animal rights groups, are subjected to less scrutiny by the FBI. "The domestic terrorism squad is working on skinheads — things on the left and right," said Fair. "We're constantly inundated with the latest intel."

But the perception that Muslims are subjected to heightened scrutiny was underscored in 2012 when the ACLU of Northern California, Asian Law Caucus, and San Francisco Bay Guardian obtained FBI records revealing that JTTF agents visited mosques under the premise of "community outreach" but ended up entering the information they gathered into assessment files.

Fair characterized the revelation as a misunderstanding that's done lasting damage to the bureau's ability to work alongside Arab and Muslim communities. He said JTTF agents who made the visits used a default option from a computer program's dropdown menu to categorize the outreach efforts. They picked "positive intel disseminated" because, according to Fair, they didn't have another option like "community outreach." But "positive intel disseminated" meant the FBI considered the information intelligence for national security and law enforcement purposes shared with members of the JTTF.

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