How A Controversial Provision Of The Patriot Act Was (Likely) Used In Charlotte

May 28, 2015

Undated photo of Samir Khan posted to Inspire magazine after Khan's death.
Credit Inspire Magazine

Arguably the most controversial provision in a controversial law is set to expire this Monday, unless the United States Senate acts. The law is the USA Patriot Act, the provision is known as Section 215.

It grants government agencies expanded powers of surveillance of American citizens, think the bulk phone data collection done by the NSA. But the NSA isn’t the only federal agency to take advantage of the provision. The FBI has used it as well, including, most likely, here in Charlotte. 

Samir Khan is one of Charlotte’s most infamous former residents. He was an American citizen, a gifted propagandist, a believer in violent jihad. Eventually a member of Al Qaeda. In 2007 Khan spoke to the New York Times about American troops fighting in Iraq."The American occupiers, they’re disbelievers, and every disbeliever will go to hellfire according to the book of Allah." If they die, Khan added, "I have no concern for them and if they moan and groan and cry that’s not going to change a thing."

At the time of that interview Khan was already on the FBI’s radar. And over the past year, the FBI has been releasing some details of their investigation into Khan’s activities. The files were originally due to be declassified in 2032. But a Freedom of Information Act request by Vice News has lead to hundreds and hundreds of documents being released to the public. The files are heavily redacted, some even have redactions inside larger redactions. Still says Chris Swecker, "It is a little surprising they released as much as they did."

Chris Swecker while serving with the FBI
Credit Chris Swecker

Swecker knows the FBI well. "During my 24 year career with the FBI, I was a street agent working organized crime. I ultimately became the special agent in charge in North Carolina."

And he served as the Director of both the FBI’s criminal and cyber divisions before retiring in 2006. Swecker did not work on the Samir Khan investigation. It started with what's known as a Field Intelligence Group or FIG says Swecker, "The FIGs were established after 9-11 to sort of bring the FBI into the realm of an intelligence agency."

This was in 2006. After a combination of the Patriot Act, and new guidelines issued by the attorney general changed what the FBI needed to start an investigation. With those guidelines says Swecker, if an agent got a phone call or a lead, "they can open up what we call an assessment. Which gives them greater leeway to conduct broader investigations, take a broader look and actually gather intelligence." Even if all that person was doing was talking. "And that’s what happened with Samir Khan, he was just talking."

In 2006 Khan was 18 years old. A student at Central Piedmont Community College and a blogger. Some of those posts are included in the FBI files. "It looks like his views were relatively moderate but he was in contact with some less moderate elements." That contact, the agents believed, was having an effect. "He was not in favor of violence in the beginning but you began to see from the documents how his ideology began to become more and more extreme."

The documents show Khan’s family tired to their best to intervene. At one point they took their son to a psychiatrist in Maryland for evaluation. They were told he would eventually outgrow his rebellious stage.  Charlotte’s Muslim community also tried to de-radicalize Samir Khan. But the efforts by both Samir Khan’s family and his fellow Muslims failed.

While Khan voiced his support of violent Jihad, he never directly called for it. Here’s how Khan described his actions to the New York Times:

"I’m not doing anything which I feel is illegal. In that sense, I’m not telling people to build bombs. I’m not telling people how to do this and that. I’m not telling people to meet such and such person."

FBI records show they had started a file to be used in the event Khan was brought before a grand jury. But no charges were ever filed. And the documents provide no insight as to whether agents even found probable cause to investigate a particular crime.

This is where Section 215, that controversial provision in the Patriot Act likely came into play. We have to say likely because Section 215 is not directly referenced in any of the non-redacted portions of the documents. But there’s a clear argument that can be made.

First, there’s the fact Khan was investigated at all.  The ACLU argues Section 215 is used by the FBI to "launch investigations of American citizens in part for exercising their freedom of speech.”

Second, the case files include details on calls Khan made. That’s normal protocol says Swecker. "Once you open up an international terrorism investigation, if it’s a person who uses a phone, some people don’t, then it’s pretty standard to get up on both their email and phone."

Section 215 allows agencies to gain access to third party records without a court subpoena or probable cause. This includes things like phone use and internet activity.

Copy of Samir Khan's drivers license photo
Credit FBI files

It also applies to things like employment history and drivers license information. The FBI files contain references to Khan’s drivers license information, including his photo. And they include his job history, beyond what would be easily be available to the IRS or through normal surveillance. Take one memo dated October 3, 2007. It states Khan had previously applied to be a baggage handler for US Airways. Adding, "it does not appear he got that job."

The overall use of Section 215 by the FBI was examined by the Justice Department's inspector general. That report was released to the public earlier this month.

It, too, is heavily redacted but it includes this finding:

The agents we interviewed did not identify any major case developments that resulted from the records obtained in response to Section 215. 

But it added that agents told them

The authority is valuable when it is the only means to obtain certain information.

Supporters of Section 215 say that alone is enough. Earlier this week, President Barack Obama urged the Senate to either extend the provision or pass a bill that would offer some reforms to Section 215.

"Make sure we don’t have on midnight Sunday night this task still undone. Because its necessary to keep the American people safe and secure."

As for Samir Khan, in 2009, despite being under FBI surveillance which included GPS tracking of his car, Khan flew to Yemen. It was there his gift as a propagandist took flight. Khan launched Inspire, Al Qaeda’s online magazine. It included how-to features like ‘Make a Bomb In The Kitchen Of Your Mom.’ But more importantly Inspire was written in English, to recruit and radicalize a Western audience.

In 2011, Khan was killed in an American drone strike. Though he was not the target. Khan was traveling with senior Al Qaeda leader Anwar al-Awlaki.