Picture 141Mark Ambinder and I had a productive disagreement on Twitter today about what the appropriate focus of the investigation into Nidal Hasan should be. My overall point is that, at least given what we know now, our focus ought not to be on the treatment of the intercepts of Hasan’s attempts to contact radical cleric Anwar al-Awlaki so much as they should be on other signals Hasan gave of real struggles over his role as a Muslim in an army fighting two Islamic countries. It’s only within that context that the intercepts are at all meaningful. And unless we want to criminalize all discussion with extremist clerics (including people like Fred Phelps and Jerry Boykin, not to mention Jeremiah Wright), and unless we want to sanction the criminalization of any communication with people with alleged ties to Islamic extremists, then we should hesitate before we conclude that Hasan’s emails to Awlaki (at least as they’ve been reported) should have been the primary trigger for an investigation of Hasan.

Here are, best as I can piece together, the warning signs that the military and the FBI got on Hasan leading up to the killings.

Complaints about anti-Muslim Harassment (2004 to present)

As early as 2004, Hasan complained to relatives about anti-Muslim harassment and consulted a lawyer about getting out of the military. Harassment against him for being Muslim continued after he moved to Ft. Hood earlier this year.

In mid-August, another tenant, a soldier who had served in Iraq, was angered by a bumper sticker on Major Hasan’s car proclaiming “Allah is Love” and ran his key the length of Major Hasan’s car. Ms. Thompson learned of it and told Major Hasan about it that night, and though he called the police, Major Hasan did not appear to be angered by it.

He complained to others at his mosque in Killeen (so in other words, in the last several months) about the treatment of Muslims in the Army.

He was described as gentle and kindly by many neighbors, quick with a smile or a hello, yet he complained bitterly to people at his mosque about the oppression of Muslims in the Army.

Lecture on Muslims in the Army (June 2007)

In 2007, Hasan gave a lecture on Muslims in the army in which he predicted “adverse events” arising because Muslims were fighting Muslims. The presentation weighed support in the Koran for peace against armed jihad and included comments–”We love death more then you love life!”–that may either be Hasan quoting the views of extremists and/or may be his own warning. The doctors attending are reported to have appeared to be upset at Hasan’s presentation, but it is not known whether anyone reported the content of the presentation itself.

“It was really strange,” said one staff member who attended the presentation and spoke on the condition of anonymity because of the investigation of Hasan. “The senior doctors looked really upset” at the end.

[snip]

It is unclear whether anyone in attendance reported the briefing to counterintelligence or law enforcement authorities whose job it is to identify threats from within the military ranks.

Also note, it appears that this presentation, the conclusion of which reads, “Department of Defense should allow Muslims Soldiers the option of being released as ‘Conscientious objectors’ to increase troop morale and decrease adverse events,” post-dated Hasan’s attempt to get out of the service, perhaps by a few years.

Complaints from Co-Workers and Fellow Students (unknown dates, 2008)

In addition, some of Hasan’s co-workers report they complained about comments Hasan made about his Muslim faith.

A fellow Army doctor who studied with Hasan, Val Finell, told ABC News, “He would frequently say he was a Muslim first and an American second. And that came out in just about everything he did at the University.”

Finell said he and other Army doctors complained to superiors about Hasan’s statements.

“And we questioned how somebody could take an oath of office&be an officer in the military and swear allegiance to the constitution and to defend America against all enemies, foreign and domestic and have that type of conflict,” Finell told ABC News.

At least one of these complaints appears to be tied to another presentation Hasan did last year, describing US wars as wars against Muslims.

A former classmate in the master’s degree program said Major Hasan gave a PowerPoint presentation about a year ago in an environmental health seminar titled “Why the War on Terror Is a War on Islam.” He did not socialize with his classmates, other than to argue in the hallways on why the wars were wrong.

The former classmate, who spoke on the condition of anonymity because of working for the military and not being authorized to speak publicly, said that some students complained to their professors about Major Hasan, but that no action had been taken.

In other words, while the content of the 2007 presentation may not have been reported to counter-intelligence authorities, some other potentially troublesome comments were reported to superiors at Walter Reed.

Email Communications with Anwar al-Awlaki (Late 2008 to 2009)

Finally, starting late last year (so presumably after the two presentations described above), Hasan started contacting radical cleric Anwar al-Awlaki via email. He ultimately sent 10 to 20 emails, and Awlaki responded twice.

Even Crazy Pete Hoekstra, who is the source of much of the reporting on the emails, admits the content of the emails (at least Awlaki’s responses) themselves were not incriminating. And FBI investigators who took a look at the emails suggest the content was consistent with Hasan’s object of study.

“I believe that the responses from Aulaqi were maybe pretty innocent,” Hoekstra continued. “But the very fact that he’s sent e-mail . . . to this guy and got responses would be quite a concern to me.”

The FBI determined that the e-mails did not warrant an investigation, according to the law enforcement official. Investigators said Hasan’s e-mails were consistent with the topic of his academic research and involved some social chatter and religious discourse.

That view seems to be shared by everyone leaking about these emails–and note this includes military investigators.

Counterterrorism and military officials said Monday night that the communications, first intercepted last December as part of an unrelated investigation, were consistent with a research project the psychiatrist was then conducting at Walter Reed Army Medical Center in Washington on post-traumatic stress disorder.

“There was no indication that Major Hasan was planning an imminent attack at all, or that he was directed to do anything,” one senior investigator said.

Now, aside from the exact content of these emails, there are a few other factors here. For example, we know that Hasan worshiped at the mosque in Virginia Awlaki served at in 2001; but we don’t know whether Hasan framed his context with him in those terms or not.

Also, it appears that those who assessed these emails looked closely enough at Hasan to know about his studies of Muslim’s in the Army. Presumably that should have gotten them close enough to those earlier complaints and presentations–if anyone tracked those issues closely enough to record.

Ultimately, though, these emails appear to be speech about religion–protected under the First Amendment–between a US person overseas and a US person in the United States; by all appearances, Awlaki was the target of the intercepts, not Hasan. Awlaki has clearly been reported to be an extremist, but he has not been charged in the US with any crime, nor were his earlier links to 9/11 hijackers determinatively shown to have assisted their plot.

A Comment Left by NidalHasan Advocating Death for a Purpose (May 20, 2009)

Although investigators have not publicly confirmed that Nidal left this comment, it draws parallels between someone throwing himself on a grenade, a suicide bomber, and Kamikaze pilots.

There was a grenade thrown amongs a group of American soldiers. One of the soldiers, feeling that it was to late for everyone to flee jumped on the grave with the intention of saving his comrades. Indeed he saved them. He inentionally took his life (suicide) for a noble cause i.e. saving the lives of his soldier. To say that this soldier committed suicide is inappropriate. Its more appropriate to say he is a brave hero that sacrificed his life for a more noble cause. Scholars have paralled this to suicide bombers whose intention, by sacrificing their lives, is to help save Muslims by killing enemy soldiers. If one suicide bomber can kill 100 enemy soldiers because they were caught off guard that would be considered a strategic victory. Their intention is not to die because of some despair. The same can be said for the Kamikazees in Japan. They died (via crashing their planes into ships) to kill the enemies for the homeland. You can call them crazy i you want but their act was not one of suicide that is despised by Islam. So the scholars main point is that “IT SEEMS AS THOUGH YOUR INTENTION IS THE MAIN ISSUE” and Allah (SWT) knows best.

One question I have is whether the contacts to Awlaki extended to this period–May 2009, and whether the investigators who dismissed the emails were aware of this comment.

Visits to Radical Islamic Websites (unknown dates)

Searches of Hasan’s computer since the killing show he has visited radical Islamic websites. But thus far, there is no evidence of email communication to any known extremists aside from Awlaki.

CBS News correspondent Bob Orr reports that an examination of the computer has revealed Hasan visited Web sites promoting radical Islamic views, but investigators have not found any e-mail communications with outside facilitators or known terrorists.

The Purchase of a Cop-Killer Gun (August 1, 2009)

Finally, there was Hasan’s purchase of a gun. By itself, it would not be suspicious. But he selected a “cop-killer” gun and purchasedseveral high-capacity 20 round magazines” at the same time, which raises questions of purpose.

This is one issue that will probably attract much closer focus, as the FBI is complaining that they can’t cross-reference this information.

As to Hasan’s weapons purchase, the investigators stressed that under existing federal law, there are tight restrictions imposed by Congress about sharing any such information even within the FBI. The FBI is required to assist states in conducting a background check of any gun purchaser to determine if they fall into any of a number of prohibited categories—including whether they have been convicted of a crime or have a history of mental illness. Hasan, who purchased the $1,100 pistol under his own name, was approved for the purchase he made at the Guns Galore gunshop in Killeen, Texas.

But after the check is conducted, and an individual is cleared to buy his gun, the FBI cannot retain the data or share any information about the gun purchase—even with other bureau officials charged with preventing terror attacks.

The FBI has chafed under these restrictions in the past but has failed to have them eased due to fierce resistance from the gun lobby and its supporters in Congress (as well as, in the past, in the Bush administration.)

Now, the jist of my disagreement with Ambinder is on whether minimization prevented counter-intelligence investigators from knowing of the contact with Awlaki. We may learn, over the course of this investigation, what they do with US person data collected in the course of their FISA programs. There is no reason to believe they got rid of these intercepts. And we know that they got fairly individualized attention.

But the big point I was trying to make is that if there are data-sharing issues, they’re the reverse, the fact that any counter-intelligence information on Hasan arising from his comments and presentations in DC do not have appeared to heightened the concern about the emails to Awlaki. The only things we knew that took place after the intercepts are the comment and the gun purchase–the latter of which is not known to have been tracked in any case; we not only don’t know if counter-terrorist or counter-intelligence investigators knew of the surfing of extremist websites, but we don’t know when it took place.

Ultimately, of the dots we currently know of, the ones that might have been connected were some details of his 2007 presentation, the comment defending suicide missions, and the purchase of the gun. Now perhaps Crazy Pete Hoekstra knows of something more, or perhaps he would advocate that everyone with known contacts with one extremist should have their IP address permanently tracked (in which case I assume he’s willing to undergo such scrutiny, given his ties to Manucher Ghorbanifar). But otherwise the data that didn’t get shared appears to be from the brick and mortar world, not the telecom world.

Update: At a very concrete level, this story supports Ambinder’s point–that info sharing rules meant the Army didn’t get info on Hasan’s contacts with Awlaki. (h/t MD)

A person familiar with the matter said a Pentagon worker on a terrorism task force overseen by the Federal Bureau of Investigation was told about the intercepted emails several months ago. But members of terror task forces aren’t allowed to share such information with their agencies, unless they get permission from the FBI, which leads the task forces.

In this case, the Pentagon worker, an employee from the Defense Criminal Investigative Service, helped make the assessment that Maj. Hasan wasn’t a threat, and the FBI’s “procedures for sharing the information were never used,” said the person familiar with the matter.

But that’s not because FBI refused permission. It’s because the people who had access to both his record and the intercepts didn’t ask for it. And there’s still the question why non-suspicious intercepts would alarm the Army when a whole lot of more suspicious stuff hadn’t.