A Review of the FBI's Investigations of Certain Domestic Advocacy Groups
Chapter Three: The Thomas Merton Center
II. The Anti-War Rally in Pittsburgh
In February 2006, the FBI publicly released an Electronic Communication (EC) dated November 29, 2002, that was written by Mark Berry, an FBI Special Agent based in Pittsburgh.46 Berry stated in the EC that he photographed leaflet distributors participating in an anti-war rally relating to Iraq at Pittsburgh's Market Square Pavilion, sponsored by the Thomas Merton Center. The synopsis line stated that the EC was written "Rio report results of investigation of Pittsburgh anti-war activity." The EC was released pursuant to a Freedom of Information Act (FOIA) request, and its disclosure led members of the public and Congress to question whether the FBI was spying on protestors because of their anti-war views.
A press response from the FBI shortly after the FOIA release stated that the agent took photographs of a participant at the Merton Center anti-war rally "as a direct result of information provided to the FBI, related to an ongoing investigation."
In a Senate hearing in May 2006, Senator Patrick Leahy questioned FBI Director Mueller about the FBI's surveillance of the Merton Center, and in particular the November 29, 2002, EC about the anti-war rally in Pittsburgh. Director Mueller responded by stating:
We were attempting to identify an individual. The agents were not concerned about the political dissent. They were attempting to identify an individual who happened to be, we believed, in attendance at the rally. I'd be happy to have the IG look into that and any of the other assertions or allegations that you've made in terms of our investigating persons who are exercising their First Amendment rights.
In addition, in response to follow-up Questions for the Record to the FBI from Senator Leahy, the FBI stated that "[t]he investigation of the individual whose presence at the rally was anticipated is still ongoing," and declined to provide further information.
As discussed below, we determined that for a variety of reasons the FBI's explanations were inaccurate and misleading.
A. Factual Chronology
1. FBI Surveillance of the Anti-War Rally
During his OIG interview, Berry described the circumstances leading to his surveillance activities at the Merton Center rally in Pittsburgh. Berry told us that he graduated from the FBI Academy in August 2002 and was assigned to the Pittsburgh Field Division's Joint Terrorism Task Force (JTTF) to work on international terrorism cases. At the time of the surveillance he was still in probationary status with the FBI, on a training rotation working on a variety of criminal investigations. His international terrorism caseload consisted of one case.
Berry told us that when work was slow he would ask his supervisor, Supervisory Special Agent Susan Crosetti, for a work assignment.47 Berry said November 29, 2002, the Friday after Thanksgiving, was one of those slow work days. Berry told us that he asked Crosetti for work, and she directed him to go to an anti-war rally in downtown Pittsburgh to identify Pittsburgh Field Division terrorism subjects "and to see what they are doing." Berry said he could not precisely recollect Crosetti's instructions but that "the gist of it was that [I] needed to go identify our subjects' involvement in the anti-war protest." Berry told us he could not recall whether Crosetti told him why she believed that any terrorism subjects would attend the event.
The Merton Center web site described the event as an anti-war leafleting event held on the Pavilion in Market Square, an open park-like space in downtown Pittsburgh. The web site stated that the participants would "Man out in teams to leaflet and engage people in the Square and downtown shopping spots" to "[flake the anti-war message to more people" on "the biggest shopping day of the year." Berry described the event as an anti-war protest or rally "with many people in attendance."
Berry told us that in response to Crosetti's instructions, before going to the rally he reviewed a binder containing color photographs of Pittsburgh's international terrorism subjects, which was maintained in Crosetti's office. The binder contained photographs of all international terrorism subjects of full field investigations or preliminary inquiries originating in Pittsburgh. Berry said he attempted to memorize the faces depicted in the binder of photographs but he was "totally unfamiliar" with the subjects' faces because he was a new agent.
During her OIG interviews, Crosetti told us that she did not have any present recollection of the circumstances leading up to the decision to conduct the surveillance of the event. She stated that she believed that Berry -not her -had initiated the surveillance in order to identify terrorism subjects. She also told us that she believed the Pittsburgh JTTF possessed information that its international terrorism subjects would be in attendance at events such as the Merton Center anti-war rally. We asked Crosetti if she knew the identity of the subjects the agent went to identify at the rally and could describe the link between these subjects and the Merton Center. She responded that the majority of Pittsburgh's international terrorism subjects congregated at the Islamic Center of Pittsburgh, and she said that the EC regarding the surveillance of the anti-war rally stated that the Merton Center had recently coordinated an event at the Islamic Center.
Apart from the November 29, 2002, EC, we found no FBI documents created in 2002 that described the purpose or any of the background for the FBI's surveillance of the anti-war rally. We also found no documents predating the event suggesting a basis for believing that any terrorism subjects were in fact associated with the Merton Center or were likely to be present at the event. Our review of FBI documents referencing the Islamic Center of Pittsburgh, which Crosetti had pointed to, confirmed that some international terrorism subjects in 2002 were members of the Islamic Center or attended its functions. However, as discussed below, we found no evidence the FBI knew of a link between the Islamic Center and the Merton Center before the anti-war rally occurred.
According to Berry, he went to the anti-war rally alone. When he arrived there, he saw a large crowd but he could not recall the faces he had attempted to memorize from the binder. He told us he did not bring any photographs of subjects with him to the event.
At some point, a man in the crowd handed Berry a leaflet.48 Berry said he noticed then that the leaflet was produced by the Merton Center. He told us that this was the first time that he had heard of the Merton Center.
Berry also told us that although he could not recall the faces of the subjects in the binder for whom he was supposed to be looking, he decided he would take a couple of photographs of a woman who was in attendance. He said he did so because he believed he needed to show his supervisor that he was "earning his pay" and was doing what he was told. Berry said he did not know whether the woman he photographed was a terrorism subject. He said some of the terrorism subjects in Pittsburgh for whom he was supposed to be looking were female, but at the time he took the photographs he did not remember what the female subjects looked like. He told us that he had a conversation at the rally with a female leaflet distributor he perceived to be of Middle Eastern descent. Berry told us that the woman was probably the person he photographed, although he qualified this by saying that he did not remember her.
Berry said he was at the event for a short time, not longer than 30 minutes and "probably a total of 10 minutes," because it was a "nonstarter" given that he could not "even remember what [the subjects] look[ed] like." He said that had he been able to identify individual subjects the assignment may have developed into something worthwhile. But he said that he was not prepared and did not have the knowledge he needed to have to do the job his supervisor asked him to do. Berry said this was the first surveillance activity he conducted in a terrorism matter. He said that this was the only time that he conducted surveillance activities at an anti-war protest.
Berry said he had a vague recollection of showing the photographs he took of the woman to others in the JTTF, but no one could identify her. He said that at that point he discarded the photographs.
2. The November 2002 EC
Berry told us he drafted the EC, including its synopsis line, when he returned to the office on November 29, 2002, the day he conducted the surveillance. According to Berry, after his return to the office he conducted Internet research, including visiting the Merton Center's website, to obtain some of the information that he provided in the EC.
Crosetti approved the EC and it was placed in the Pittsburgh Field Division's "zero" file, for the "199" classification, which is used for investigative matters related to international terrorism.49 Berry said he had no recollection of discussing the EC with Crosetti or any others in 2002. He told us he would have placed the EC in Crosetti's inbox and that would have been the last time he thought of it in 2002.
The 2-page EC was entitled "IT Matters." The synopsis stated: "To report results of Pittsburgh anti-war activity." The EC did not identify any individual who was a subject or person of interest in an FBI investigation. Nor did it state that the Merton Center or any other group was the target of an investigation.50 The EC began by providing the Merton Center's contact information and characterizing it as "a left-wing organization advocating, among many political causes, pacificism [sic]." Berry told us he came up with this characterization of the Merton Center, and that he believes he based this characterization on the leaflet's content. The EC stated that the Merton Center held daily leaflet distribution activities in downtown Pittsburgh and was then "currently focused on its opposition to the potential war with Iraq." It described the leaflets as stating that, "Iraq does not possess weapons of mass destruction and that, if the United States invades Iraq, Sadam Hussien [sic] will unleash bio-chemical weapons upon American soldiers."
The EC stated that the Merton Center advertises its activities on its webpage and that 5 days earlier the Merton Center "coordinated the 8th Annual An-Nass (Humanity) Day at the Islamic Center of Pittsburgh." The EC identified Farooq Hussaini as the contact person for the event at the Islamic Center. The EC stated that Hussaini was affiliated with the Islamic Center, and the EC provided his contact information. Berry told us that he obtained this information from the Internet research he conducted after he returned to the office on the day of the surveillance. He stated that he had never heard of Farooq Hussaini before doing the Internet research for the EC after the rally.
The EC identified the Merton Center's executive director by name and stated that he had told a local newspaper columnist that "there are more than a few Muslims and people of Middle Eastern descent among the regulars attending meetings" at the Merton Center. Berry told us that he also obtained this information from his Internet research after the surveillance.
The EC stated that Berry had photographed Merton Center leaflet distributors during the event, and that the "photographs are being reviewed by Pittsburgh IT (international terrorism) specialists." The EC concluded by stating that one female leaflet distributor, who appeared to be of Middle Eastern descent, inquired whether the Special Agent was an FBI agent and that no other Merton Center participants appeared to be of Middle Eastern descent.
The EC did not contain any description of the FBI's purpose in attending the event. It did not state that the FBI was attempting to identify any terrorism subjects or that Berry had been unsuccessful in doing so. Berry told us he did not know why he did not include this information in the EC. He said he believes his lack of experience explained why he wrote the EC as he did. He told us that knowing what he knows now, "there would be no point" in having written an EC documenting his activities. He said that it was a "poorly written EC" that did "not capture exactly what was going on." He also described the EC as "atrocious on many levels" and stated that "the EC was a horrible mistake" and that he could "understand why people would become inflamed about it." He stated that he wrote the EC as he did because he was a probationary agent at the time and needed to please his supervisor and to show her that whatever she told him to do he would do as thoroughly as he could. He said that he did not want to give his supervisor an EC that was just "three sentences long." Berry said that he realized the significance of the synopsis line - "To report results of Pittsburgh anti-war activity" - when he reread the EC in preparation for his interview with the OIG. He stated that when he read the synopsis line, his "jaw hit the table" and that it did not "accurately indicate what was going on."
Crosetti told us that the EC did not adequately describe Berry's activities. She said there is "a lot of stuff behind this that we didn't put in there and shame on me for approving it and you know I can't blame" the agent who wrote it. She said that the EC should have stated the reasons that Berry conducted the surveillance activities. She said the EC "could have less information on some things, more information on others." She stated that the synopsis line was a bad choice of words.
3. Pittsburgh Division Legal Staff Drafts Routing Slip Regarding FOIA Response (February 2006)
In May 2005, the American Civil Liberties Union (ACLU) filed a FOIA request for FBI documents referencing the Thomas Merton Center. Legal staff in the FBI Pittsburgh Field Division coordinated the FOIA response with the Records Management Division (RMD), the FBI Headquarters Division responsible for releasing nonexempt responsive documents pursuant to FOIA. Berry's November 2002 EC was one of the responsive documents. Stanley Kempler, a Pittsburgh Field Division attorney, became involved in coordinating the Pittsburgh Field Division's response.51
Just prior to the FBI's release of Merton Center related documents, Kempler sent the Records Management Division a memorandum, titled "routing slip," dated February 8, 2006. The routing slip recommended redactions to the RMD's proposed release of several Merton Center-related documents, including the November 2002 EC.52 The routing slip also provided information about the November 2002 EC that conflicted with what Berry and Crosetti told us.
Kempler's routing slip stated that "according to the agent" who wrote the November 2002 EC, "the investigative activity reflected in this EC was directed at Farooq Hussaini, not the Thomas Merton Center." Farooq Hussaini was the person identified in the November 2002 EC as the contact person at the Islamic Center of Pittsburgh for a recent event that was coordinated by the Merton Center. The November 2002 EC did not identify Farooq Hussaini or anyone else as the subject of the surveillance.
The routing slip continued, "[t]he agent stated that his supervisor directed him to attempt to photograph individuals who were in contact with FAROOQ HUSSAINI." The routing slip also stated that Hussaini first became of interest to the Pittsburgh Field Division on June 7, 2002, as a result of information developed in an international terrorism investigation being conducted by the FBI Dallas Field Division. Specifically, a June 7, 2002, EC from the Dallas file (Dallas EC), reported PARAGRAPH DELETED
The routing slip stated that Hussaini was also associated with (referred to as Person B in this report), who was the subject of a Pittsburgh full field investigation that "remains in a pending status."53 The routing slip did not identify any connection between Person B and the leafleting event or the Merton Center.54 The routing slip stated that the Pittsburgh Field Division had never opened an investigation of Farooq Hussaini, but recommended that his name be redacted from the document because publication of an FBI interest in him may negatively affect SENTENCE DELETED ."
In sum, the routing slip asserted that Farooq Hussaini was the target of the November 2002 surveillance of the Merton Center anti-war rally and stated that the FBI Pittsburgh Field Division became interested in Hussaini as a result of information developed in an FBI Dallas Field Division international terrorism investigation of a different subject. However, as described below, the evidence showed that these assertions were not true. We determined that these inaccurate assertions also became the basis of subsequent inaccurate statements made by the FBI to the public and by FBI Director Mueller to Congress.55
We interviewed Berry a second time after we received the routing slip from the FBI. When we asked Berry to review the routing slip he told us he was "certain" he was not sent to the rally to find Farooq Hussaini. He stated that he did not know who Hussaini was prior to going to the rally. When we showed Be the Dallas EC, he said he had never seen it. He said that the chance of SENTENCE DELETED was "almost non-existent." Berry said the routing slip was "utterly false" and "wholly, factually inaccurate." Berry said the routing slip "absolutely blows me out of the water" and that he had "no knowledge" of it. He told us he had no current memory of discussing the routing slip or Farooq Hussaini with Pittsburgh Field Division attorney Kempler or anyone else. He said that he gave Kempler the same account of the November 2002 surveillance that he gave to the OIG.
When we showed the routing slip to Crosetti, she told us Berry did not go to the anti-war rally to identify Farooq Hussaini because he was not a subject, and that Berry went to the event to see if Pittsburgh Field Division subjects might attend. When we asked Crosetti to review the Dallas EC she said she had never seen this document and to her knowledge it was never brow ht to the attention of the Pittsburgh Field Division. She pointed out that SENTENCE DELETED
Crosetti told us she had never seen the routing slip, was not contacted during its preparation, and was not a source of information contained in it. She disputed the routing slip's assertion that she directed Berry to photograph persons in contact with Farooq Hussaini. Crosetti told us she would never have given such an instruction as it would have been "improper" because the Pittsburgh Field Division did not have a case open on Hussaini.
In short, both Berry and Crosetti disputed the facts in the routing slip. The Dallas EC SENTENCE DELETED . We found no basis to conclude that there was any actual connection between Farooq Hussaini in Pittsburgh and the Dallas investigation or the Dallas EC.
Several news articles in Pittsburgh publications from 2001 to 2003 described a Farooq Hussaini who was associated with the Islamic Center of Pittsburgh. According to the news articles, he was active in fostering interfaith relations and understanding of Islam in Pittsburgh. In fact, following Hussaini's death in May 2008, the Pittsburgh City Council designated June 8, 2008, as "Syed Farooq Hussaini Day," in recognition of his contributions to the community.
We found no evidence suggesting that anyone in the Pittsburgh Field Division was even aware of the Dallas EC before the anti-war rally, much less that it triggered any interest by the Pittsburgh Field Division in Farooq Hussaini. As noted above, both Berry and Crosetti told us they never saw the Dallas EC. Indeed, no one in the Pittsburgh Field Division would have been alerted to the Dallas EC since it was not addressed to the Pittsburgh Field Division but rather was placed in the Dallas file and sent to the attention of an FBI office in Idaho.
The FBI Special Agent who wrote the Dallas EC told us she could not imagine any reason why she would have forwarded the EC to the Pittsburgh Field Division, and she did not believe she would have done so informally by telephone or e-mail. The FBI analyst in Pocatello, Idaho who received the Dallas EC and told us she would only contact an FBI field office in writing and that she found no FBI records indicating that she alerted the Pittsburgh Field Division to the Dallas EC.
We also obtained query logs showing FBI employee searches of the FBI databases routinely used in investigations. If Farooq Hussaini in fact had been a person of interest to the Pittsburgh Field Division, we would have expected to find documentation or database searches relating to him prior to the anti-war rally. We found that no one in the Pittsburgh Field Division had ever searched the databases using Farooq Hussaini's name as a search term prior to the rally.56 We found no Pittsburgh Field Division documents referencing Farooq Hussaini dated before the event.
In sum, we concluded that the routing slip falsely stated that the Pittsburgh Field Division had investigative interest in Farooq Hussaini at the time of the November 2002 rally and that Hussaini was the target of the FBI's surveillance at the event.
4. Source of the Routing Slip Information
As detailed in Section B below, we believe that the false version of events in the routing slip influenced subsequent FBI public statements about the November 2002 EC, including a press response distributed after the FOIA release and the congressional testimony from the FBI Director. We therefore attempted to determine who was responsible for the false information contained in the routing slip. In the next section, we describe the results of our investigation on this issue. After reviewing a draft of this report, the FBI submitted a detailed response on this issue, which we respond to in subpart b.
a. OIG Investigation
Pittsburgh Field Division attorney Stanley Kempler's name appears in the "from" line on the routing slip. Kempler and Carl Fritsch, a non-attorney member of the Pittsburgh Field Division legal staff, told us that the routing slip was primarily drafted by Fritsch and only edited by Kempler.57 Kempler and Fritsch both told us that they have no current recollection of discussing the contents of the routing slip with Berry, although they said they believed they had done so based on statements in the document, which identified the agent who wrote the November 2002 EC (Berry) as the source of the information. However, as noted above, Berry denied that Farooq Hussaini was the target of the surveillance and said he did not recall discussing Hussaini with Kempler, Fritsch, or anyone else.
In an effort to reconstruct the origins of the routing slip, we reviewed search logs from the FBI databases near the date of the routing slip. This review showed that on January 23, 2006, 16 days before the date of the routing slip, Fritsch and Crosetti both had separately searched a database using search terms based on Farooq Hussaini's name.58 Fritsch was the first to search the database on January 23, 2006, at 2:30 p.m. His search produced results that included the Dallas EC. Next, beginning at 4:05 p.m., Crosetti conducted a series of database searches related to Farooq Hussaini and the Dallas EC and case number. She printed 25 ECs that were generated from the Farooq Hussaini search, including the June 2002 Dallas EC and 4 ECs from the Pittsburgh investigation of Person B. At 5:10 p.m. Fritsch searched the database again, this time using the case number for the Person B investigation.59
During our interview of Fritsch, which took place before we had received the database search logs, he denied having spoken to Crosetti in connection with the preparation of the routing slip, and he denied having conducted any database searches himself in order to find information for the routing slip. He stated that if he had relied on a database search or on information from Crosetti in drafting the routing slip, he would have said so in the routing slip.
We also determined that the search logs contradicted Crosetti's statement to the OIG that she had never seen the Dallas EC before. When we discussed the search logs with Crosetti, she told us they did not refresh her recollection about having any conversations with Kempler or Fritsch about Farooq Hussaini being the target at the anti-war rally or of having reviewed and considered the relevance of the Dallas EC. Crosetti said she believed she was prompted to conduct this database search activity by an inquiry from someone, most likely Kempler, but she said she did not recall the search activity or who prompted it.
Kempler told us he recalled having spoken to Crosetti in connection with the routing slip. Kempler said Crosetti provided a "stack of documents" that she had printed from a database search but that the documents did not provide any useful context for explaining the November 2002 EC. Kempler said he believes he told Crosetti that the documents were not helpful.
We concluded that the version of events contained in the routing slip about why the FBI had attended the anti-war rally - allegedly to determine if Farooq Hussaini was there - was an after-the-fact reconstruction that was not corroborated by any witnesses or contemporaneous documents. This version conflicted with statements from Berry, who attended the rally, and Crosetti, his supervisor, about why Berry went to the event. The timing, pattern, and similarity of the database searches in 2006 indicate that Crosetti and Fritsch coordinated research for the routing slip or otherwise communicated about Farooq Hussaini in the da s leadin u to the routin slip. Those database searches uncovered SENTENCE DELETED in the Dallas EC and therefore were likely the source of the inaccurate assertion in the EC that Pittsburgh Field Division became interested in Hussaini as a result of evidence developed in the Dallas investigation.
Fritsch acknowledged that he drafted the routing slip and that Kempler edited it. The routing slip identified Berry as the source of the information for the routing slip, although Berry told us he was not the source and denied he was sent to identify Farooq Hussaini. Based on the database logs, we believe that Crosetti also had a hand in generating the version of events contained in this document. The version of events given in the routing slip presented the surveillance in a manner that was different from, and more favorable to, the FBI Pittsburgh Field Division than what had actually occurred. However, we were unable to determine with certainty the original source of the false account contained in the routing slip, primarily because the witnesses told us they could not recall the underlying events.
b. FBI Interpretation of the Facts
After reviewing a draft of this report, the FBI acknowledged that the version of events stated in the routing slip was inaccurate, but the FBI argued that the inaccuracies were not intentional.
According to the FBI's suggested interpretation, when Kempler found the November 2002 EC in connection with the FOIA response, he asked SSA Crosetti to provide context for the EC. Crosetti responded by conducting a database search of Farooq Hussaini, believing the surveillance might have been related to him. Crosetti provided a stack of 25 ECs resulting from her database search to Fritsch, which according to the FBI "implied to any reasonable person that the basis of the surveillance could be found in them." According to the FBI, Crosetti did not tell Fritsch that she had no recollection of the underlying facts. Fritsch then created an erroneous reconstruction of the events surrounding the November 2002 surveillance based entirely on the stack of documents provided by Crosetti (which included the Dallas EC), but Fritsch never showed his reconstruction to Berry or Crosetti. The FBI asserts that although Fritsch's failure to show the routing slip to Berry or Crosetti was not a "best practice," the errors in the routing slip were accidental.
For a variety of reasons, we were not convinced by the FBI's explanation. First, the available evidence, while somewhat contradictory, does not support the FBI's characterization of the sequence of events. The routing slip itself identifies Berry as the sole source of the information (a claim that Berry vehemently denied to the OIG) but it makes no mention of a reconstruction of events from historical documents. Fritsch told us that if he had relied on the database search or on information from Crosetti in drafting the routing slip he would have said so in his draft, and the draft does not say that. In addition, Kempler specifically denied that the documents Crosetti provided as a result of her database search provided any useful context for explaining the November 2002 EC. Thus, both Fritsch and Kempler told the OIG that they were confident they got the information in the routing slip from Berry, not through a reconstruction from historical documents, as the FBI's explanation asserts.
Second, the routing slip contains several details that could not reasonably be inferred from the stack of historical documents alone. For example, the routing slip stated that "FAROOQ HUSSAINI became of interest to the Pittsburgh Office on 06/07/2002 . . . ." (Emphasis added.) Yet, nothing in the stack of documents generated as a result of the database searches of Farooq Hussaini's name suggests that Hussaini became of interest to the FBI Pittsburgh Field Division on that date or any other date before the surveillance. Similarly, the routing slip stated that "the agent [Berry] stated that his supervisor [Crosetti] directed him to attempt to photograph individuals who were in contact with FAROOQ HUSSAINI." This statement, which Berry vehemently denied to the OIG and which the FBI agrees was not true, also could not have been inferred from the documents resulting from the database search. This statement either was speculation that the author presented as fact in an official document, or it was deliberately misleading.
Third, even if Fritsch alone had made the inferences from the stack of documents to reach the statements made in the routing slip, we find it difficult to believe that he or Kempler would have sent out this reconstruction without taking any steps at all to verify its accuracy with Berry or Crosetti, the two people - both still working in the FBI Pittsburgh Field Division at the time -who had direct knowledge of the facts.
After reviewing a draft of this report, the FBI also asserted that because the OIG found that the original surveillance did not violate FBI policy, nobody had a motive to provide an intentionally misleading account of it. This argument ignores the fact that the original November 2002 EC did not state any justification for the surveillance and could be anticipated to generate significant adverse publicity upon its release. Tying the surveillance to a particular person of interest or terrorism suspect would be a better justification than what actually happened, which was that Berry was sent to the rally as a "make-work" assignment to see if any of the Pittsburgh terrorism subjects happened to show up without having any reason to think any of them would be there. Although we concluded that this assignment did not violate the Attorney General Guidelines, it did not reflect well on the Pittsburgh Field Division and could likely cause significant concern or embarrassment to the FBI if the true facts surrounding the surveillance were publicly presented.
At best, the person or persons who were responsible for the version of events contained in the routing slip were extraordinarily careless in characterizing their speculation about the basis of the surveillance as established fact without any attempt to confirm it. In light of the circumstances described above, however, we believe that it is more likely that the person or persons intentionally drafted a version of events in the routing slip that provided a stronger justification for the surveillance of the Merton Center anti-war rally than was in fact the case.
5. FBI Headquarters Issues Press Response (March 2006)
The release of the Merton Center documents to the ACLU in February 2006 generated significant media interest and resulted in questions to the FBI regarding the documents and the FBI's investigative interest in the Merton Center. On March 14, 2006, the FBI issued a "press response" that addressed the Special Agent's surveillance at the Merton Center anti-war rally and the November 2002 EC that resulted from this surveillance.60 The FBI press response stated, in relevant part:
Some FBI documents recently released to the ACLU under the Freedom of Information Act refer to an FBI Agent taking photographs at a public anti-war event in Pittsburgh in November 2002.
While the Agent was acting with all appropriate investigative authorities, it is important to emphasize some points not evident in the publicly released documents. First, the photos taken at the November 29, 2002, event were taken as a direct result of information provided to the FBI, related to an ongoing investigation. Specifically, the photos were compared with photographs of a person under FBI investigation. Once that comparison was made, and determined to be of no value to the ongoing investigation, the photos taken at the event were destroyed.
* * *
A related internal communication that was also released [the November 2002 EC] was written in a manner that suggests it is a report on the activities of an anti-war group. Such a characterization would be factually misleading. The Agent was not in attendance at the event for the purpose of monitoring this group's political activities. As noted above, he was present for the sole purpose of determining the validity of information he received from another source establishing a link between an on-going investigation and the group engaging in anti-war protests. Finding no such link, he terminated his surveillance.61
The press response also stated that since 2002 the FBI had issued additional directives that "reiterated and, where appropriate, clarified policy pertaining to investigations that in some way involve public demonstrations or protest activities."
We believe that the press response was drafted by the FBI's National Press Office based in substantial part on information provided by Pittsburgh Field Division attorney Kempler.62 Kempler told us he responded to questions from someone in the FBI's National Press Office sometime before the press response was released, but he said he could not remember who specifically it was. Kempler told us that he did not recall the telephone conversation in any detail but that he "just parroted what was in the routing slip." Kempler said that the Pittsburgh Field Division did not create the press response and that it originated from the National Press Office.
We were unable to determine specifically who in the National Press Office drafted the press response. A Public Affairs Specialist from the FBI's National Press Office told us he recalled a telephone conference that he and his Section Chief participated in with Kempler during which Kempler explained to them what had occurred with regard to the November 2002 EC and the anti-war rally. He said that what Kempler told them was consistent with what was contained in the press response. However, the Public Affairs Specialist said he did not write the contents of the press response and did not know who did.
We also interviewed the person who was the Section Chief of the National Press Office at the time. He said he did not remember who wrote the press response, how it was created, what was discussed, or the telephone conference with Kempler. He said he did not recognize the press response as something that he would have written.
Like the routing slip on which it was based, the press response contained important information that was false. The press response stated that an FBI agent was present at the rally in order the "determine the validity of information he received from another source establishing a link between an on-going investigation and the group engaging in anti-war protests." The "ongoing investigation" discussed in the press response is apparently a reference to the Dallas investigation discussed in the routin sli , and the "information" that the FBI suposedly received was SENTENCE DELETED . The "link between" the investigation and the Merton Center appears to be a reference to the fact that, as mentioned in the 2002 EC, Farooq Hussaini was identified as the contact person for an event sponsored by the Merton Center. As noted above, none of this information was known to the Pittsburgh Field Division before the rally, and it was not the reason for Berry's attendance at the rally. In fact, neither Berry nor Crosetti was aware of the Dallas investigation at the time, and Berry did not learn of Hussaini's connection to the Merton Center until after he returned to the office.63
We found several local and national newspaper articles published in the days after the release of the press response that quoted directly from the press response or the Pittsburgh Field Division's Media Coordinator, and, in one instance, from the Public Affairs Specialist.64
The contents of the press response were also included in an internal FBI newsletter, "The Horizon," which is used by the Assistant Director of the Office of Public Affairs to brief the FBI Director about media matters.
In sum, it appears that in response to the FOIA request for documents, Pittsburgh Field Division attorney Kempler discussed the matter with the FBI's National Press Office, which in turn drafted and released the press response. However, that response was not an accurate depiction of the reasons for the FBI's attendance at the Merton Center anti-war rally. The press response was subsequently quoted in news accounts and, as detailed below, was likely used to brief the Director for his congressional testimony.
6. Director Mueller Testifies About Merton Center Surveillance (May 2006)
On May 2, 2006, Director Mueller testified before the Senate Judiciary Committee in an FBI oversight hearing. At the hearing, Senator Leahy questioned Director Mueller about FBI documents released under FOIA that Senator Leahy stated suggested that the FBI was using its enhanced counterterrorism capabilities "to conduct domestic surveillance on law-abiding American citizens simply because they oppose the Government's war policy in Iraq."65 Senator Leahy asked in particular about the surveillance of the Merton Center anti-war rally discussed in the November 2002 EC. After quoting from the November 2002 EC, Senator Leahy asked: "What possible business does the FBI have spying on law-abiding American citizens simply because they may oppose the war in Iraq?"66 Director Mueller responded:
On that particular case, sir, it was an outgrowth on an investigation. We were attempting to identify an individual. The agents were not concerned about the political dissent. They were attempting to identify an individual who happened to be, we believed, in attendance at that rally.67
Senator Leahy pressed the FBI Director by quoting twice from the synopsis line of the November 2002 EC ("To report results of investigation of Pittsburgh anti-war activity"). Director Mueller responded by stating that he had given "the background of that report" and he would be "happy to have the IG followup on that."68
During our investigation, the FBI provided us with the written materials Director Mueller used in advance of his May 2006 testimony to the Senate Judiciary Committee relating to the allegations that the FBI was "spying" on domestic advocacy groups. Among these materials, we found only one document that referenced the Merton Center surveillance. This document, titled "ACLU Allegations of Spying," and dated March 22, 2006, was prepared by the FBI's Director's Research Group.69 The FBI's Office of Congressional Affairs used the document in the Director's "briefing book" for the May 2006 Senate hearing. The document contained the following one-paragraph reference to the Merton Center surveillance:
FBI agents have attended First Amendment protected activities when acting under all appropriate investigative authorities. For example, in November 2002, an agent took photographs of an individual at a peace rally, based on information directly related to an investigation. Upon further investigation, the individual in the photographs proved unconnected to the criminal matter under investigation, and the photographs were destroyed. No monitoring of First Amendment protected activities occurred.
Given the similarly of content and that it is dated a few days after the press response was issued, it appears that the press response was a source for the Director's Research Group document.70 FBI officials told us they were unable to identify any individual who briefed the Director specifically about the Merton Center matter in advance of the hearing. Director Mueller told us that he has testified to Congress many times since the May 2006 hearing and he did not have a current recollection of who briefed him on the Merton Center surveillance. He said he could not recall the materials he may have reviewed when preparing for his testimony.
Director Mueller's testimony was not accurate for the same reasons the press response on which it was based was not accurate, as discussed above. However, we found no evidence indicating that Director Mueller was aware of the inaccuracy of the information that was provided to him and that was the basis for his testimony.
7. FBI Responds to Follow-Up Question From Senator Leahy (May and June 2006)
Soon after the May 2, 2006, Senate Judiciary Committee hearing, Senators submitted written follow up "Questions for Record" to the FBI. Senator Leahy's questions included four related to the FBI's alleged domestic surveillance of peace groups. Three of the questions related to the Merton Center. One question asked:
You testified that the agents "were attempting to identify an individual who happened to be, we believed, in attendance at that rally." Please provide copies of earlier investigative memos that document the basis for the agents' belief that a person of interest in an International Terrorism Matter would be present during [Merton Center] leafleting activities on November 29, 2002.71
The second question pertained to a February 26, 2003, FBI Letterhead Memorandum that referred to the Merton Center. We discuss this memorandum in the next section of this chapter. The third question asked whether the Director had referred the Merton Center matter to the OIG for review.
The FBI's Office of Congressional Affairs was assigned to prepare responses to the questions about the anti-war rally and the Letterhead Memorandum, although the Department of Justice Office of Legislative Affairs submitted the final responses to Congress. The responses were based on information the Office of Congressional Affairs received from the FBI's Counterterrorism Division (CTD).72 As detailed below, the information provided by the CTD ultimately led to the submission of another inaccurate response to Congress.
8. The Counterterrorism Division Response
The CTD prepared a detailed 3-paragraph response to Senator Leahy's question about the Merton Center anti-war rally in a document that is dated June 5, 2006, and that was provided to the FBI's Office of Congressional Affairs. While the CTD's response was not provided to Congress, it influenced the final response that was submitted to Congress. The CTD response stated in relevant part:
One agent from the Pittsburgh Division JTTF was sent to the November 29, 2002 public rally in Market Square in Pittsburgh, Pennsylvania to identify and conduct surveillance of Pittsburgh Division International Terrorism (IT) subject [Person B], who was involved in anti-war activities. The supervisor at the time claims that no specific written or verbal tasking was given to the agent. The agent recalls that his purpose on 11/29/02 was to identify and conduct surveillance of Pittsburgh Division's IT subjects involved in the anti-war activities going on in Market Square, to include [Person B]. The Thomas Merton Center has never been the subject of an investigation; however, IT subjects are believed to be associated with the Thomas Merton Center.
Two photos of a single female were taken at the Market Street rally, and were subsequently destroyed after JTTF members were unable to identify an individual as a subject. The purpose of the [November 2002 EC] was to indicate that no further investigative activity was necessary as no Pittsburgh IT subjects were identified and no nexus to international terrorism was uncovered. The Merton Center was detailed in the communication to convey that the rally was a political event and not an activity that required further investigation.
However, the CTD response did not address the core request by Senator Leahy for investigative memorandums that predated the anti-war rally which documented the FBI's reasons for attending. As explained below, we believe that the response prepared by the CTD was inaccurate and misleading.
a. Person B
At the time of the Merton Center anti-war rally, Person B was the subject of an international terrorism preliminary investigation in the FBI's Pittsburgh Field Division. However, we found no evidence - either a witness or a document written before the rally - that suggested Person B was a particular focus of the Pittsburgh Field Division's surveillance at the anti-war rally.
Neither Berry nor Crosetti substantiated the assertion that Person B was the reason that Berry attended the event. As discussed above, Crosetti said she did not have a current memory of the instructions Berry was acting on when he attended the rally. After we received the CTD response from the FBI, we interviewed Berry again and asked him specifically if he went to the antiwar rally to see if Person B was attending. Berry told us he did not recall being sent to target anyone specifically, "let alone [Person B]." Although Berry added in his second interview that the possibility exists that those were the instructions he was given and no longer remembered, he said to the best of his recollection he was "not sent to target" Person B. He also said that he doubted he even knew who Person B was in 2002. In addition, Berry told us that he did not take a picture of Person B with him to the anti-war rally. He said:
Knowing how I operate, even as a probationary agent, if I was going out on one guy, I would have brought a photo with me. I remember distinctly looking at the [subject] book and trying to internalize all these different pictures and being overwhelmed.
Moreover, as noted above, Berry told us he took two pictures of a woman at the event. Person B was a male. We would not have expected that Berry would take pictures of the woman if he had been instructed to identify and conduct surveillance on a particular male subject.
Further, Berry did not report his activities at the anti-war rally in the Person B case file, as one would expect if he was asked to conduct surveillance on Person B. As a former CTD manager told us, one would expect the results of the surveillance activity, even if those results are negative, to appear in the file of the ongoing investigation relating to the target of the surveillance, and not in a zero file.
Daniel Sampson, the primary agent assigned to the Person B case, also told us he did not direct Berry to attend the Merton Center rally, did not know who did, and had no knowledge of why Berry attended the event.73 Sampson said he first became aware of the November 2002 EC during his OIG interview when we asked him to review it. He said that if Berry had been directed to identify a particular subject at the event or was sent to conduct surveillance related to a pending investigation he would have expected that the results would be reported in the case file.
In addition, Alfred Rogers, the co-case agent assigned to the Person B case, told us he did not direct Berry to attend the Merton Center rally, did not know who did, and had no knowledge of why Berry attended the event.74 Rogers said he first became aware of the November 2002 EC when he was contacted by the OIG for an interview. Rogers also told us that he served as Berry's training agent and if Berry had been directed to identify Person B at the event, Rogers would have expected Berry to report the results of the surveillance activities in the Person B file.
We were also unable to find any documents to support the key facts of the CTD response. We reviewed the entire Person B case file looking for precisely the document Senator Leahy requested - any investigative memorandum that predated the anti-war rally that would document the basis for the FBI believing that Person B or any other person of interest in an International Terrorism matter would be present during Merton Center leafleting activities. We found no such document.
We found an October 2002 EC memorializing of Person B that was conducted by the FBI agents assigned to his case. The EC did not describe any association between Person B and the Merton Center. Rogers told us that he does not recall if he learned during of Person B whether he was associated with the Merton Center. Rogers said that he would not view such an association as a significant fact.
We found a few documents that associated Person B with the Merton Center, but each of these was dated after the rally, and we found no evidence indicating that the association identified in the document was known to the FBI before the rally. The earliest such document was dated July 10, 2003, 8 months after the rally. Moreover, when we showed these documents to Berry and Crosetti they said it did not refresh their recollections of their having any pre-rally knowledge of a link between Person B and the Merton Center.
Information learned by the FBI after the anti-war rally was summarized in the CTD response in a manner that created the misimpression that such information was known before the event and was the basis for the surveillance at the Merton Center. For example, the only documents in the Person B file stating that he was involved in anti-war activities and had been observed at rallies protesting the war in Iraq and the U.S. Government's National Security Entry Exit Registration (NSEER) were dated after the rally. The only pre-leafleting information in the file that even touches on Person B's anti-war protest activities is a notation of his "strop ro-Palestinian sentiment" and a collection of local newspaper articles that SENTENCE DELETED
Moreover, we found no evidence to support the claim that international terrorism subjects "are believed to be associated with the Thomas Merton Center," except for the Person B link noted in post-rally documents. In response to our document request, the FBI did not supply us with any document identifying any association between the Merton Center and any other Pittsburgh subject of an international terrorism matter.
In sum, the CTD response to Senator Leahy's questions provided an entirely new version of the events surrounding the FBI's surveillance of the Merton Center rally. As with the prior versions, the witnesses and contemporaneous documents indicate this version of events was also false.
b. Source of Information for the CTD Response
We attempted to determine how the CTD response was created and sourced. We provide the results of our investigation in this subsection. Again, because the FBI provided a detailed response regarding this matter after reviewing a draft of this report, we also address the FBI's assertions about the CTD response in the next subsection.
The CTD response was prepared by the CTD's Executive Staff from a draft written by the CTD's International Terrorism Operation Section II (ITOS-II), Iraq Unit. The Unit Chief at the time was Clarence Parkman.75 On May 16, 2006, Parkman received an e-mail from CTD's Executive Staff requesting by May 22 a response to Senator Leahy's questions about the Merton Center. Parkman forwarded the e-mail to Dorothy Andrews, an ITOS-II Intelligence Analyst, and David Steele, her supervisor.76 Steele then forwarded the e-mail to Kempler in the Pittsburgh Field Division, requesting that Kempler provide anything he had on the matter by the next day. Steele copied Berry on the e¬mail to Kempler.
We interviewed Parkman before we received the e-mails described in this section. Although Parkman's name appeared on the CTD response, he told us he was not in any way involved in preparing it. However, the e-mail exchange and Andrews's testimony make it clear that the Unit Parkman supervised was in fact responsible for preparing a draft of the CTD response. Moreover, the database logs showed that minutes before Parkman received the first e-mail from the CTD executive staff he conducted one search using the search term "Thomas Merton Center."
We determined that after Kempler received the e-mail request from the CTD on May 16, he forwarded the e-mail to Crosetti, writing in the e-mail: "I cannot answer these questions. I just received the documents. Can you assist?"77 Less than 3 hours later on May 16, Crosetti responded by e-mail that she had found from a search of FBI databases 38 documents that referenced the Merton Center. She then noted for international terrorism cases, "the one case that is highlighted" regarding the Merton Center is the Person B case and provided case opening dates and its pending status. Crosetti also stated in the e-mail response that she would provide copies of each of the documents, including the most recent annual summary of the Person B case, contained in a Letterhead Memorandum dated December 7, 2005. Her e-mail also stated:
There was no investigation of the [Merton Center], only notations in various FBI program files re activities at the [Merton Center]. [Berry] had public access to the event at the Pavilion in Market Square, downtown Pittsburgh, PA. No specific written tasking was given re the event. To my knowledge, only one [Special Agent] was involved.
Crosetti copied Berry on this e-mail. When we showed Berry the e-mail chain, he said he did not recall it. Crosetti told us that she included the information in the e-mail because it was information she found from her search of the database that was potentially relevant to answering Senator Leahy's question. She said that she viewed the information she provided in her email as raw data and not as an analysis or a conclusion that Person B was the target. She said she only "highlighted" the Person B matter because her search revealed documents associating him with the Merton Center.
Kempler forwarded the Crosetti e-mail to ITOS-II Supervisor Steele, stating that Crosetti had provided him "a pile of documents" and asking Steele if he wanted them. Steele responded to Kempler that he should hold on to the documents for now and that Steele would have ITOS-II Intelligence Analyst Andrews pull up the documents at Headquarters herself and contact Crosetti directly.
Later in the day on May 16, Andrews e-mailed Crosetti asking a few questions, including "do we know who was being investigated at the rally? -[Person B] . . . ?" Andrews told us that her file (where she found the e-mail chain described above) did not contain any further or responsive e-mails on this matter. Andrews told us she was unable to recall whether Crosetti responded to this e-mail. Crosetti told us she did not recall whether or how she responded to Andrews's question.
However, Andrews stated to us that someone in the Pittsburgh Field Division, probably Berry or Crosetti, had provided the information identifying Person B as the person who Berry was sent to identify at the anti-war rally, as stated in the first sentence of the CTD response.78 Andrews said she was "fairly confident" the information came to her in an e-mail.79
Berry told us that he did not know the source of the statement in the CTD response that he was sent to identify Person B because he had no recollection of being sent for that specific purpose. He also said the first sentence in the CTD response - that he was sent to the rally to identify and conduct surveillance of Person B - was not "wholly accurate" because he was sent to conduct surveillance on Pittsburgh subjects in general, not Person B in particular. He also said that "in reality, I was sent, I think, to get me out of [Crosetti.]'s hair." Berry held open the possibility that the information he provided was used as the source of the first sentence in the CTD response because he would have said he was sent to identify multiple subjects, and Person B was one of the Pittsburgh subjects at that time. However, as noted above, Berry told us he did not take a picture of Person B with him to the anti-war rally and if he had been sent there to conduct surveillance on one individual he would have taken a photograph of the individual.
Crosetti told us that she did not remember receiving a telephone call from someone in FBI Headquarters regarding the Director's testimony, and if she had received such a phone call, she would remember it because she would have made certain to alert the Pittsburgh Special Agent in Charge.
We also showed Crosetti the May 16 e-mail chain containing the communications with FBI Headquarters regarding the Director's testimony. She told us she viewed her e-mail as simply responding to Kempler's request for basic information and she believed he was coordinating the Pittsburgh Division's response to the CTD. Crosetti told us the May 16 e-mail chain did not refresh her memory of any additional communications with Headquarters on the topic.
Kempler told us the only inquiry he recalled receiving from another FBI component was the one call from the National Press Office regarding the press response. When we showed Kempler the May 16 e-mail chain, he told us it did not refresh his recollection regarding any communications with the CTD on a response to Senator Leahy's questions.
As stated above, the e-mail that Crosetti sent on May 16 noted the Person B case, the one international terrorism matter which referenced the Merton Center. The December 2005 LHM that Crosetti referred to in the e-mail contains a sentence indicating Person B had been observed at rallies protesting the Iraq War and the National Security Entry Exit Registration. That sentence appears almost verbatim in the CTD response to Senator Leahy's question. Sampson, the primary agent on the Person B case, worked in the Pittsburgh Field Division until January 2007. He told us that he had no recollection of ever being contacted by anyone from the Pittsburgh Field Division or from FBI Headquarters regarding the November 29, 2002, surveillance activities conducted by Berry.80 We believe that Crosetti's May 16 e-mail was where the inaccurate suggestion that the Person B case was the target of the surveillance of the Merton event originated.
ITOS-II Intelligence Analyst Andrews wrote a draft of the CTD response, which she provided to us, that was substantially identical to the final version of the CTD response. Andrews said she showed the draft to her supervisor, Steele, and she then provided it to Parkman for review. Parkman said he had no recollection of this. Andrews said she does not believe the draft CTD response came back to her for further work after that point. She also said she does not recall whether the Pittsburgh Division ever reviewed any drafts of the CTD response.
In sum, we determined that the CTD response was another inaccurate description of the reason for Berry's surveillance at the Merton Center anti-war rally. The CTD response to Senator Leahy's question was based on documents dated several months after the event that were provided to the CTD by Pittsburgh Supervisory Special Agent Crosetti. In this version of the event, Person B was the target of the surveillance. Yet, although Crosetti highlighted the Person B case in an e-mail she sent to the CTD, her e-mail did not identify him as the target. Berry denied ever stating that Person B was the target of his surveillance, and Crosetti said she did not recall how she had answered Andrews's question about this. However, Andrews told us that she recalled that information confirming Person B's status as the target was provided by Pittsburgh, most likely in an e-mail.
c. FBI Interpretation
After reviewing a draft of this report, the FBI agreed that the CTD response contained inaccurate statements but argued again that these errors were accidental, based on the FBI's following interpretation of events.
According to the FBI, when the CTD sent the Congressional Questions for Record to Pittsburgh Field Division attorney Kempler, he asked Pittsburgh SSA Crosetti for help. Crosetti conducted another database search, this time turning up 38 documents that she sent to Kempler, highlighting documents relating to Person B. According to the FBI, Crosetti repeated the error she had committed in connection with the routing slip, by failing to tell Kempler that she had no specific recollection of whether Person B was the target of the surveillance.
Andrews, the CTD Intelligence Analyst assigned to the matter, asked in an e-mail to Crosetti whether Person B was the target of the rally surveillance. Andrews's file contained no written response. The FBI stated that lilt is reasonable to conclude that [Crosetti] did not respond" because Andrews would have saved any such response in her file. The FBI's argument suggests that Andrews must have simply inferred that Person B was the target when Crosetti failed to respond to her question, but that she failed to transmit the draft CTD response to Berry or Crosetti for review. The FBI asserts that this failure was not "best practice" but that Andrews had no motive to intentionally craft the CTD response to be misleading.
We do not agree that it is likely that Andrews, who was a new FBI analyst who had only recently completed graduate school, would have made the inference on her own that the target of the surveillance was Person B, without seeking confirmation. Indeed, the May 16 e-mail chain shows that Andrews specifically asked Crosetti for confirmation of this important detail. We do not agree with the FBI that the absence of a written response in Andrews's file indicates that she received no such response. Andrews specifically asked the question, "was Person B the target of the surveillance" and later drafted the CTD to indicate that he was. We believe that the more reasonable inference from this sequence is that someone from the Pittsburgh Field Division answered Andrews's question, "yes." This answer could have been provided orally, by telephone, or by an e-mail that Andrews did not save in her file.
Moreover, contrary to the FBI's assertion, Andrews specifically told us she received the answer she put in the draft response from someone in the Pittsburgh Field Division, although she said she could not recall whom. As the FBI recognizes, that answer - whoever provided it - was misleading because Berry was not in fact specifically targeting Person B for surveillance.
We were not persuaded by the FBI's interpretation attributing this inaccuracy to accident. First, by highlighting Person B's name in the documents she provided to CTD, Crosetti conveyed the clear impression that Person B was the actual target of the surveillance. If the problem was that Crosetti could not remember, and that the Person B version of events was her best reconstruction from the documents she found, she should have made this clear to Andrews, and the CTD response could have acknowledged this uncertainty. Moreover, if this had been the scenario, a simple check of this matter with Berry would have shown that this was not true. Again, the FBI contends that the error could have been the result of extraordinary carelessness on the part of the FBI employees involved in providing information in response to Senator Leahy's Question for the Record. However, we believe that a more realistic explanation is that someone in the Pittsburgh Field Division provided this version of events to Andrews because it provided a stronger justification for the FBI's surveillance than the actual facts. At the time the FBI was being criticized for this surveillance, and the true reason - that Berry was monitoring the Merton Center anti-war rally in response to a "make work" assignment - was not helpful.
Moreover, there is another reason indicating that the errors in the CTD response were not accidental. The Question for Record that the CTD Response was addressing specifically requested information from before the Merton Center rally to show that the FBI expected a person of interest to be there. As explained above, the CTD response contained out-of-sequence information about Person B that the FBI did not learn until after the time of the surveillance. Citing these facts without acknowledging when they were learned created the impression that this information was developed prior to the rally and was part of the basis for expecting Person B to be present at the rally. The dates on which the FBI learned those facts would be apparent to anyone reviewing the documents that Crosetti assembled. We believe that this presentation of later-learned information about Person B also provides evidence of an effort to mislead.
The FBI also asserts that the fact that the Farooq Hussaini version and the Person B version were inconsistent indicates that the inaccuracies were unintentional. We agree that it is strange that the first time Crosetti was asked about the surveillance in January 2006 she provided a stack of documents pointing Fritsch and Kempler toward Hussaini, but that when she was asked again about the matter in May 2006 she provided a different stack of documents pointing Kempler and Andrews toward Person B. However, we do not believe that the inconsistency between the versions indicates that the inaccuracies were unintentional.
The CTD response contains language lifted nearly verbatim from the routing slip regarding other matters.81 This shows that someone involved in developing the CTD response was aware of the routing slip version of events, which focused on Farooq Hussaini. There are several reasons that someone involved in preparing the CTD response could have realized the routing slip version could not be corroborated. For example, it is clear that someone involved in preparing the CTD response spoke to Berry. Based on our interview of Berry, we believe he would have rejected the suggestion that Farooq Hussaini was the target of his surveillance. Further, the persons involved in preparing the routing slip could have realized that there was no actual connection between Farooq Hussaini and the Dallas investigation. These factors would logically cause someone who was interested in providing a more favorable justification for the Merton Center rally surveillance to abandon the "Farooq Hussaini" version in favor of the "Person B" version, which had the advantage of being partly accurate, in that Person B was in fact the subject of a Pittsburgh Field Division terrorism investigation. Therefore, we were not persuaded that the fact that the two versions were different was compelling evidence of an innocent error.
We acknowledge that the passage of time and the inconsistency and incompleteness of witness accounts made it difficult to determine with certainty whether the inaccuracies in the routing slip and the CTD response were intentional or accidental. We acknowledge that it is conceivable that these inaccurate reconstructions of events could have been the product of chain of events indicating extraordinary carelessness by several FBI employees involved in creating the inaccuracies. However, we believe the evidence suggests that it was more likely an effort to present a version of events that would provide stronger justification for the FBI Pittsburgh Field Division's surveillance of the rally than could be found in the true reasons for the surveillance.
d. Final Response Sent to Congress
The CTD response was an internal document that was not released to Congress or the public. However, this response was used by an attorney in the FBI's Office of Congressional Affairs as the basis for the public response that went to the DOJ's Office of Legislative Affairs and that was ultimately sent to Congress in response to Senator Leahy's question.
As noted above, the central request from Senator Leahy was: "Please provide copies of earlier investigative memos that document the basis for the agents' belief that a person of interest in an International Terrorism Matter would be present during Merton Center leafleting activities on November 29, 2002." The final FBI response to this question stated:
The investigation of the individual whose presence at the rally was anticipated is still ongoing. Consequently, we are not able to discuss this investigation further.
Because the final response was based on the CTD response, it was also misleading. The final response refers to "the individual whose presence at the rally was anticipated." Because Person B is apparently the "person of interest" referred to in the final response, the final response is inaccurate. As detailed above, the FBI did not have any evidence to suggest that any person of interest in an international terrorism matter would attend the Merton Center anti-war rally. Moreover, the evidence demonstrates that the Berry was not sent to the Merton Center rally specifically to look for Person B. Rather, this claim was an after-the-fact justification, based on a search of documents in 2006, not based on anything that occurred before the rally. Senator Leahy requested copies of "earlier investigative memos" documenting the basis for the agents' belief that the person of interest would be present. An accurate response would have stated that "no such earlier memos exist."82
B. OIG Analysis
In this section, we first analyze the FBI's conduct in attending the anti-war rally and creating and retaining the November 2002 EC. We then analyze the FBI's inaccurate and misleading descriptions of the matter in statements to the public and in response to Congressional questions.
1. Issues Raised by the FBI's Attendance at the Anti-War Rally
The FBI's conduct in sending an agent to conduct surveillance at the Merton Center anti-war rally, and the agent's recording of information in an EC, raised several issues: (1) whether the FBI was monitoring the Merton Center or its members because of the Merton Center's anti-war advocacy; (2) whether the FBI's attendance at the event was authorized under the Attorney General Guidelines; (3) whether the agent's follow-up Internet research regarding the Merton Center and associated persons and organizations was authorized under the Attorney General Guidelines; and (4) whether the retention of information about the First Amendment activities of the Merton Center in the EC complied with the Attorney General Guidelines. We address each of these issues in turn.
a. Monitoring of First Amendment Activities
The synopsis line of the November 2002 EC prepared by Special Agent Berry following his attendance at the Merton Center anti-war rally stated: "To report results of investigation of Pittsburgh anti-war activity." This synopsis, together with other facts set forth in the EC, raised questions regarding whether the FBI was monitoring the First Amendment activities of the Merton Center or other protesters because of their opposition to the Iraq war.
We found the November 2002 EC extremely troubling on its face. It described no legitimate purpose for the FBI to attend the event. It created the strong impression that the FBI's reason for being there was to monitor the First Amendment activities of persons with anti-war views. It supplied no evidence or even suspicion that any criminal or terrorist element was associated with the Merton Center or likely to be present at the event.
Berry told the OIG that the EC was poorly written and did not accurately portray the nature of his assignment that day. He stated that he was not busy that day and when he asked Crosetti (his supervisor) for work she instructed him to attend the event to identify any Pittsburgh Field Division terrorism subjects, and that in advance of this event he reviewed photographs of those subjects maintained in a binder in the office. He stated that after arriving at the event he realized he was unable to recall any of the faces he had reviewed with sufficient certainty to make any identifications. He photographed one woman who appeared to him to be of Middle Eastern descent handing out leaflets, and then returned to the FBI offices.
In assessing Berry's explanation for the surveillance, we attempted to determine whether the FBI had a basis to believe that any terrorism subjects would be present at the rally. We found no documents, witnesses, or other evidence suggesting that the FBI had identified any particularized reason at the time the anti-war rally took place to expect that any terrorism subjects would be attending the event.
Berry told us that although Crosetti might have explained the basis for her assignment to him, he could not recall what it was. Crosetti told us she had no current recollection of the reasons for the surveillance. After reviewing Berry's EC during her interview, Crosetti pointed to the discussion in the EC about a Merton Center-coordinated event at the Islamic Center of Pittsburgh, and stated that the link between the Merton Center and the Islamic Center of Pittsburgh might have been the basis for concluding that terrorism subjects would be present at the anti-war rally. However, we did not find any documents in FBI files suggesting that the FBI was aware of a link between the Islamic Center and the Merton Center or the rally before the event. In fact, Berry told us he learned that the Merton Center had coordinated the Islamic Center event after he returned from the rally, when he visited the Merton Center website. We found no pre-event FBI documents corroborating Crosetti's suggestion that the FBI's interest in the Islamic Center was any factor in the decision to send Berry to the anti-war rally.83
Although we found no corroboration for the notion that terrorism subjects would be present at the event, we also found no evidence that Berry was sent to the event to monitor the First Amendment activities of the Merton Center or anyone else because of their anti-war activities. We found no evidence that the FBI ever opened any kind of investigation in which the Merton Center was a named subject. We also found no evidence that the FBI's attendance was part of any unofficial investigation of anti-war activity in Pittsburgh or that the FBI was focusing on the Merton Center or others because of their anti-war views. Additionally, we determined that no FBI employees searched the FBI's investigative databases for key terms such as "Thomas Merton Center" or the name of the Merton Center executive director in the month prior to or after the anti-war rally. We found no evidence that prior to the assignment the FBI had any investigative interest in the Merton Center at all; indeed, the very first reference to the Merton Center in any official FBI document provided to us was in the EC itself.
Taking all of the evidence together, we concluded that Berry was sent to the event pursuant to a casual, spur-of-the-moment assignment given in substantial part because Berry was a probationary agent with nothing to do on a slow work day - the day after Thanksgiving. We believe that Berry was told to look for terrorism subjects at the event, but we could not find any particularized basis for the FBI to believe that any terrorism subject would be in attendance. We believe that the surveillance was an ill-conceived "make work" assignment.
b. Attendance at the Event
Part VI of the 2002 Attorney General Guidelines provided that "for the purpose of detecting or preventing terrorist activities, the FBI is authorized to visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally." The leafleting rally was open to the public and any member of the public could have done what Berry did: observe and speak with participants, and take photographs.
As discussed above, we found no evidence to suggest that the FBI had, at the time of the event, any basis to believe that any Pittsburgh terrorist subject was connected with the Merton Center or likely to be in attendance. Although subsequent FBI documents and testimony claimed that the assignment was an outgrowth of, or related to, a particular anti-terrorism investigation, the evidence we found contradicted these claims.
However, the "purpose" test for attending public events under Part VI of the 2002 Attorney General Guidelines did not require any demonstration of an articulable suspicion to attend the event. It simply required that the agent ordering the activity have an antiterrorism purpose in mind.
We concluded that this assignment fulfilled this undemanding requirement, since the assignment was designed at least in part to check whether any Pittsburgh Field Division terrorism subjects attended the public event. Although the possibility that any useful information was likely to result from this make work assignment was remote, the "purpose test" in Part VI of the 2002 Attorney General Guidelines was not violated. Therefore, we believe that attendance at the event was not prohibited by the Attorney General Guidelines in effect at the time.
c. Online Research
Berry stated that after returning from the event he conducted online research and reported the results in several paragraphs of the EC. The results included information about the Merton Center, its executive director, and its activities. The EC also reported information about an interfaith event that it stated was coordinated by the Merton Center at the Islamic Center of Pittsburgh.
Part VI of the Attorney General Guidelines, which addressed Internet research, permitted such activity "for the purpose of detecting and preventing terrorism or other criminal activities." We concluded that Berry's Internet research regarding the Merton Center and the Islamic Center was not authorized under this provision. If Berry had identified any Pittsburgh Field Division terrorism subjects at the event or if he had any other information at the time linking such subjects to the Merton Center - which he did not - his research might have been authorized as the collection of another piece of information for the purpose of detecting or preventing terrorism. But Berry could not identify any authorized purpose for conducting this research, and no such purpose is suggested in any contemporaneous documents. To the contrary, Berry told us that he collected the information after the event in order to have something to give his supervisor despite having failed to identify any terrorism subjects at the event.
d. Retention of Information
The November 2002 EC contains information about the First Amendment activities of the Merton Center, including the contents of the Merton Center leaflets and information from the Merton Center website.
Part VI of the Attorney General Guidelines prohibited the FBI from retaining information obtained from visits to public events unless it related to "potential criminal or terrorist activity." When Berry returned from the event, he had no basis for suspecting that the photographs he took of a woman who appeared to him to be of Middle Eastern descent would help identify any terrorism subject who was present at the event.
In the end, Berry did not identify any terrorism subjects at the event and he collected no other information linking the Merton Center to terrorism. Therefore, the information he collected at the event (in the form of the Merton Center leaflet and descriptions of Merton Center leaflet distributors) did not relate to potential criminal or terrorist activity and should not have been retained. Similarly, the information from the Merton Center website (which was collected during the agent's online research, discussed in the prior section), including the agent's characterization of the Merton Center as a "left-wing organization," should not have been recorded in the EC and retained in FBI records.
As described above, Berry's EC contained information about the Merton Center, including some First Amendment material. Berry (who was a probationary agent at the time) told us that he included this information because he had not identified any subjects, it was information he collected at the rally, and because he was trying to fill out his EC so that it would not be "just three sentences long." Reviewing the EC during his interview, Berry said it was "atrocious on many levels," "a horrible mistake," and "a terrible EC." We agree, and we believe that when the agent returned from what appeared to be a fruitless endeavor he went too far in seeking to show productive work. Berry did precisely what the synopsis line states - he reported on results of investigation of Pittsburgh anti-war activity. But there was no law enforcement basis for retaining such information. Crosetti also admitted to us that she should not have approved the EC or permitted it to become an FBI record.
Berry did comply with the prohibition on retention of information in Part VI when he discarded the photographs he took during the event after determining that nobody in the Pittsburgh Field Division could identify the person depicted.
Finally, it is important to note that there are not any applicable policies or guidelines that would prohibit the retention of the information in the EC or the photographs if they were collected today pursuant to an "assessment" under the 2008 Attorney General Guidelines.
2. Issues Raised by the FBI's Statements to the Public
In response to the controversy sparked by the FOIA release of the November 2002 EC about the Merton Center anti-war leafleting, the FBI made several statements to the public and to Congress that were inaccurate and misleading. The substance of these statements was that the FBI's purpose in attending the rally was to identify a particular subject or person of interest in an international terrorism investigation, on the basis of information that the FBI had received indicating that the person would be present at the event.
As discussed above, this was not true. The FBI's two different versions of why it had sent an agent to the Merton Center rally were the basis of inaccurate statements the FBI provided to Congress and to the public. These versions were inconsistent, were contradicted by Berry's statements, and were also contradicted by contemporaneous documents. In the first version, which was contained in a routing slip that was created in response to a FOIA request in February 2006, the alleged target of the FBI surveillance at the anti-war rally was Farooq Hussaini, who was supposedly a "person of interest" but not the subject of any investigation. In the second version, which was generated by the CTD in response to congressional questions after FBI Director Mueller's testimony at a Senate oversight hearing, the alleged target was a different individual we have referred to a Person B, who was the subject of a Pittsburgh Division international terrorism investigation.
In the first version, the FBI Pittsburgh Field Division allegedly was targeting Farooq Hussaini at the Merton Center rally because of information developed in a terrorism investigation by the FBI's Dallas Field Division. We concluded this version was false. Berry told us he had never heard of Hussaini at the time of the rally. Berry and Crosetti both expressed doubt that Farooq Hussaini SENTENCE DELETED . Moreover, there was no evidence that Berry or Crosetti even became aware of the Dallas case until years after the Merton Center anti-war rally.
This version of events was originally contained in the Pittsburgh FBI's February 2006 routing slip, prepared in connection with the FOIA request. Although the routing slip was prepared by the Pittsburgh Field Division legal staff, we were unable to determine with certainty the original source of the false account it contains, primarily because several witnesses told us they could not recall the underlying events. While it is conceivable, as the FBI now asserts, that the version of events contained in the routing slip reflected carelessness by several FBI employees, we believe the evidence indicates it more likely was an effort to reconstruct the events in a manner that would provide a stronger justification for the FBI's surveillance of the Merton Center rally than was in fact the case.
The Farooq Hussaini version of events was also the basis of a press response issued by the FBI in March 2006 after the Merton documents had been publicly released pursuant to the FOIA request. Pittsburgh Field Division attorney Stanley Kempler said he used the routing slip to brief the FBI's National Press Office about the incident after the Merton Center documents were released and the FBI's surveillance activities at the Merton Center rally had become controversial. In the subsequent press response prepared by the National Press Office, the FBI stated that the surveillance at the rally related to an "on-going investigation" (referring, we believe, to the Dallas investigation discussed in the routing slip) and that the FBI had received source information that there was a "link" between the investigation and the Merton Center. However, this was false and misleading for the same reasons as the routing slip on which is was based. Neither Berry nor his supervisor, Crosetti, was aware of the Dallas investigation at the time of the surveillance, and there was no suspected "link" between the Dallas investigation and the Merton Center rally in Pittsburgh. To the extent that the press response was referring to the "link" between Farooq Hussaini and the Merton Center, that connection was not known to the FBI until after the surveillance. However, we could not determine with certainty who was responsible for the false account that the FBI provided to the public in the press response.
The false account of events given in the press response was used to prepare FBI Director Mueller for his testimony to Congress in May 2006. In response to a question from Senator Leahy, Director Mueller stated that the FBI's surveillance at the Merton Center event was "an outgrowth of an investigation," and that the FBI was "attempting to identify an individual, who happened to be, we believe, at the rally." This statement can be traced back to the press response (which was used to brief Director Mueller) and from there back to the routing slip (which was used to brief the National Press Office). As a result, the "individual" mentioned in the Director's testimony was most likely Farooq Hussaini, and the "investigation" that the Director referred to was most likely the Dallas antiterrorism investigation discussed in the routing slip.
For the same reasons the press response was inaccurate, the Director's testimony was inaccurate. Neither Berry (who conducted the surveillance) nor Crosetti (his supervisor) was aware of the Dallas investigation when the Merton Center rally took place. Moreover, we found no evidence that Farooq Hussaini was in any sense a person of interest to the Pittsburgh Field Division at the time, much less the subject of an investigation. Nor could we find any basis for the suggestion that the FBI expected Hussaini (or any subject or other "person of interest" in a terrorism case) to be present at the rally.
We do not believe that the Director intentionally misled Congress. We found no evidence that he received information that should have given him reason to doubt the accuracy of the briefing materials he relied on in preparing to testify. Yet, it is clear that FBI personnel took insufficient care to ensure that Director Mueller was given accurate information. In this case, the Director was poorly served by those responsible for the contents of the routing slip and press response.
The second inconsistent and inaccurate version of events that the FBI advanced for the surveillance at the Merton anti-war rally was advanced in the aftermath of the Director's May 2006 testimony. After the FBI received a follow-up question for the record from Senator Leahy, the CTD prepared an internal response that identified Person B, rather than Farooq Hussaini, as the FBI's target when it conducted surveillance at the Merton Center rally. Person B was the subject of a preliminary inquiry in Pittsburgh at the time, and it is therefore plausible that his picture would have been among those in the binder that Berry reviewed before attending the anti-war rally. However, Berry denied that Person B or anyone subject was the particular focus of his surveillance, noting that he did not carry a photograph of Person B to the event. In addition, we did not locate any contemporaneous document suggesting that the FBI had any reason at the time of the event to believe that Person B would be in attendance or that he had any connection to the Merton Center. Moreover, the CTD response included several facts about Person B that were not documented by the FBI in the Person B file until after the anti-war event, but the CTD response implied that these facts were part of the basis for the surveillance. This was not true.
We determined that the Person B version of the explanation for the FBI's surveillance of the Merton Center leafleting originated with an e-mail exchange on May 16, 2006, between the Pittsburgh Field Division and the CTD unit that had been assigned to draft a response to Senator Leahy's question. After the CTD's inquiries about the matter were forwarded to Pittsburgh Field Division SSA Crosetti, she conducted a database search for documents referencing the Merton Center. She then highlighted Person B in an e-mail that was forwarded to the CTD, which we believe was the basis for the CTD response.
The Person B version of events was reconstructed after the fact and provided a version of events from available information that was consistent with the Director's testimony. Yet, this account was inconsistent with the Farooq Hussaini version of events, which was the original basis for the Director's testimony. Unlike the Farooq Hussaini version, the Person B version may have had a strand of accuracy in it, since Person B (unlike Hussaini) was in fact the subject of an FBI investigation at the time. However, we found no evidence that this investigation was the reason Berry went to the Merton Center rally. Moreover, this account was misleading in that it cited information that was not documented in the Person B file at the time of the anti-war rally and suggested Person B was the singular focus when in fact that was not the case.
The CTD sent its response to the FBI's Office of Congressional Affairs, which prepared a formal response to Senator Leahy declining to provide the requested information because "the investigation of the individual whose presence was anticipated is still ongoing." This response was also misleading. The "individual" referenced in the Office of Congressional Affairs response was Person B. But as discussed above, there is no evidence that Person B's presence at the anti-war rally was "anticipated" by the FBI.
In short, we found that the FBI made a series of misleading and inaccurate statements to Congress and the public about the circumstances surrounding the Pittsburgh Field Division's surveillance of the Merton Center anti-war rally.
In fact, the true reason for the FBI's surveillance of the Merton Center's anti-war rally was that a probationary agent was sent to the event on an ill-conceived, spur-of-the-moment assignment given to him on a slow work day, and was told to look for terrorism subjects. Finding none, he attempted to document his efforts by writing an EC that resulted in the improper retention of information that was not relevant to any criminal or terrorist investigation. The FBI's subsequent public statements about the incident were based on inaccurate after-the-fact reconstructions of events, and claimed stronger justification for the surveillance than was in fact the case.
46 Mark Berry is a pseudonym.
47 Susan Crosetti is a pseudonym.
48 Berry said he did not recall what he did with the leaflet, and the FBI did not provide us any leaflet from the event in response to our requests for information.
49 A zero file is a type of file used by the FBI to retain information relating to a classification that does not require investigation at the time it is collected. See MAOP, Part 2, s. 2-4.1.2. The 199 classification was, at the time of the EC, used for the National Foreign Intelligence Program (NFIP) -International Terrorism matters.
50 The EC was classified at the Secret level when it was created in 2002. It was declassified during the FOIA process in 2006. A copy of the declassified version released to the public is contained in Appendix B of this report.
51 Stanley Kempler is a pseudonym.
52 We discuss some of the other Merton Center related documents addressed in the routing slip separately, in Part III of this chapter.
53 We use "Person B" to refer to this individual in order to limit redactions in the public version of this report.
54 As detailed in Section 8 below, the FBI later stated that it was Person B, not Farooq Hussaini, who was the target of the surveillance.
55 The Legal Administrative Specialist in the RMD who processed the Merton Center FOIA request told us he believed Hussaini's name was not redacted from the November 2002 EC because he was listed as a contact person in public information.
56 Employees from other FBI field offices searched the databases for the name "Farooq Hussaini" during this time period. We interviewed those who from the circumstances of their searches might plausibly have alerted the Pittsburgh Field Division to Hussaini in the time before the leafleting event. Based on these interviews, we found no evidence that anyone did.
57 Carl Fritsch is a pseudonym.
58 The logical reason for anyone to search for Farooq Hussaini's name in the database in 2006 as a step in finding an explanation for the November 2002 EC was that Hussaini was identified in the November 2002 EC as being the contact person for an event jointly coordinated by the Merton Center and the Islamic Center, as detailed above, although the EC did not identify him as a target of that surveillance.
59 The only other Pittsburgh employee who searched the databases during this time period using search terms based on Farooq Hussaini's name was a different Pittsburgh Special Agent who conducted such a search on February 7, 2006, the day before the routing slip was sent to the Records Management Division. This agent was also supervised by Crosetti. The agent told us he did not recall why he searched for information related to Hussaini. He told us he had no knowledge of the routing slip or its creation. Crosetti told us she did not ask this agent to conduct the database searches related to Hussaini.
60 Appendix C contains a copy of the press response. According to the FBI's Assistant Director for the Office of Public Affairs, a "press response" is usually distributed to a reporter who initiates an inquiry about the matter addressed in the response, in contrast to a press statement that the FBI proactively releases to many media outlets.
61 The press response also described a February 26, 2003, FBI Letterhead Memorandum that was also released under FOIA. We discuss the Letterhead Memorandum in the next section of this report.
62 A portion of the press response that is not at issue here was likely drafted by an attorney in the FBI's Office of General Counsel.
63 As detailed below, subsequent FBI documents later claimed that another individual, Person B, was the target of the surveillance and that the Pittsburgh Field Division investigation of Person B was the "on-going investigation." We found no evidence that this version of events had been articulated by anyone at the time the press response was created.
64 See, e.g., Paula Reed Ward, "Peace Group Claims FBI Spied on Activities; Feds Say their Interest was in an Individual, Not Merton Center," Pittsburgh Post-Gazette, Mar. 15, 2006, at B1; Nicholas Riccardi, "FBI Keeps Watch on Activists," Los Angeles Times, Mar. 27, 2006, at 1.
65 FBI Oversight: Hearing Before the S. Comm. on Jud., 109th Cong. 13 (2006). The FBI's Office of Congressional Affairs prepared a "note" to the Director in advance of the May 2006 hearing reporting on the anticipated questions from Senators. The note stated that Senator Leahy would want "assurances that the FBI is not spying on anti-war groups because of their beliefs."
66 Id. at 15.
68 Id. Senator Leahy also referred to allegations of FBI surveillance of other groups and individuals, including the Quakers and Glen Milner, which we discuss later in this report. Director Mueller stated that to his knowledge the FBI has not surveilled the Quakers. As discussed in Chapter Eight, we found no evidence that the FBI surveilled the Quakers during the time period of our review.
69 The functions of the Director's Research Group include preparing briefing materials for the FBI Director, including materials used to prepare the director for congressional testimony.
70 The Director's Research Group document does not identify the Merton Center as the protesting group or Pittsburgh as the site of the investigative activity described in the paragraph.
71 FBI Oversight: Hearing Before the S. Comm. on Jud., 109th Cong. 125 (2006).
72 Typically, when the Office of Congressional Affairs receives questions for the record it distributes the questions to the appropriate FBI divisions best able to provide a response to the substance of the question. In this case, the Office of Congressional Affairs sent Senator Leahy's questions regarding the Merton Center surveillance and the Letterhead Memorandum to the CTD for a response.
73 Daniel Sampson is a pseudonym.
74 Alfred Rogers is a pseudonym.
75 Clarence Parkman is a pseudonym.
76 Dorothy Andrews and David Steele are pseudonyms. Andrews had just been hired by the FBI a few months before the e-mail and was previously a graduate student.
77 We found no indication that Kempler referred to the routing slip discussed above, which was dated February 8, 2006 (just a few months earlier), and which suggested that the reason Berry had attended the rally was because of Farooq Hussaini.
78 Andrews said she recalled contacting Berry by e-mail and said that she thought Berry did not provide a lot of information because he had been "advised by [Kempler]" in some fashion. She also said she did not know what the nature of the advice was or whether it affected his ability to provide information.
When we showed Andrews the routing slip, she said she had not seen it before and she did not believe she ever heard during her work Farooq Hussaini's name mentioned as a person of interest at the anti-war rally. When we showed Andrews the press response she said she may have seen it and it may have been e-mailed to her.
79 We requested all e-mails from the Pittsburgh employees connected with this matter for the relevant dates. However, the FBI provided none that pertained to this matter.
80 Rogers, the Person B co-case agent, retired from the FBI in December 2004. He told us he first became aware of Merton Center anti-war rally that Berry attended and the November 2002 EC when the OIG called him to request an interview.
81 The first paragraph of page 3 of the routing slip, relating to the Letterhead Memorandum discussed in Section III.A of this chapter, is reproduced almost verbatim in the last paragraph of the CTD response.
82 However, the Office of Congressional Affairs attorney who prepared the response to Congress told us that she would not have confirmed or denied the existence of an earlier investigative memorandum because whether such a document exists is an aspect of a pending investigation that the FBI does not publicly reveal.
83 Berry's EC did not indicate that his purpose in attending the event was to identify terrorism subjects and that it did not report his failure to do so. Berry said he did not know why he omitted this information except that he was inexperienced at the time and that it was a "poorly written EC" that "does not capture exactly what was going on." Nevertheless, we found that Berry gave a credible account of the circumstances of his presence at the event.
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