Intimidation and Waste: Surveillance of Tulsi Gabbard Triggered by Unspecified “Affiliation”
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Matt Taibbi taibbi@substack.com Unsubscribe
Wed, Aug 14, 4:02 PM (2 days ago)
Intimidation and Waste: Surveillance of Tulsi Gabbard Triggered by Unspecified “Affiliation”
When a former presidential candidate and Iraq War veteran was put under “Quiet Skies” surveillance, U.S. Air Marshals blew the whistle on an “out of control” program
MATT TAIBBI
AUG 14
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When U.S. Air Marshals were assigned weeks ago to follow former Hawaii congresswoman and presidential candidate Tulsi Gabbard under the Transportation Security Administration’s Quiet Skies program, they were given a sheet with a mysterious notation. A section marked “Derogatory” contained two six-number codes, followed by entries reading: “WLS affiliates rule inbound,” and “TSDB affiliate rule inbound.”
The entries were uncommon, and at least one Marshal had to call an internal mission operations hotline to learn Gabbard was accused of being an “affiliate” of someone on a terrorist watch list. (“WLS” stands for “Watch List Service,” while “TSDB” denotes the Terrorist Screening Database.) Gabbard’s readout also featured her congressional portrait, not a government-issued ID like a passport or a driver’s license, a departure from procedure that “didn’t pass the smell test” for some Marshals.
These are just some of the details in a letter sent last night to eight House and Senate Committees on behalf of “several” whistleblowing U.S. Marshals, congressional aides told Racket. The letter also said Gabbard remained under “Special Mission Coverage” surveillance for eight flights, longer than usual absent indications of suspicious behavior. “There’d normally have to be an after-action report describing something troubling to extend the surveillance,” said one former Marshal, adding that this would likely be “a bridge too far” for some in the service.
“This is outrageous and my lawyers are taking appropriate action,” Gabbard said in reaction to the news.
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The information about the “derogatory” entry was particularly strange, given TSA’s comment in response to our query last week. We were told:
TSA’s Quiet Skies program uses a risk-based approach to identify passengers and apply enhanced security measures on some domestic and outbound international flights… Simply matching to a risk-based rule does not constitute derogatory information about an individual.
In Gabbard’s case, however, “matching” to a rule was considered derogatory. The TSA has not commented in response to a follow-up question about the issue.
The letter to Congress was sent by the firm Empower Oversight, which now represents the whistleblowing Marshals. It asked Committees to schedule a briefing (classified if necessary) to determine both why Gabbard was selected for Quiet Skies surveillance, and why extra flights appear to have been added. “Unless Air Marshals observed something during one of the eight flights suggesting Ms. Gabbard posed some sort of risk, it is a gross waste of funds and an abuse of authority” on the part of the TSA, the firm wrote.
No sources contacted for this story had any idea of who might be the suspected “affiliation,” whether it was a new or old judgment, or what agency might have been the source of the referral.
Sonya LaBosco of the Air Marshals National Council, who consulted with some of the whistleblowing Marshals early on, expressed incredulity at Gabbard’s “affiliate” designation.
“If it’s true, and they think she has an affiliate connected to terrorism or somebody that supports or funds terrorism, why in the world was she not immediately called in for an interview?” Noting Gabbard’s ongoing service in the Army Reserves, LaBosco added, “She has a top secret clearance. She’s a Lieutenant Colonel in the military who has access to classified documents. She’d be considered an insider threat. Someone would have interviewed her.”
“If their ‘reason’ is supposedly serious enough that it’s worth assigning multiple Air Marshals to surveil her in an airport and on a plane, isn’t it serious enough that it’s worth notifying her Army Reserve unit?” tweeted Tristan Leavitt of Empower Oversight last night. “Someone with an issue could likely do a lot more harm with their responsibilities as a Lieutenant Colonel there than they are likely to be the next underwear bomber.”
Leavitt added: “It is 99.999% likely that whatever the reasoning, it is NOT worth notifying her unit—and it’s also not worth the waste of taxpayer dollars to monitor her as a potential ‘threat to aviation security.’”
LaBosco posited a hypothetical: Gabbard met with someone on a watchlist, even inadvertently, during the trip she took to Rome just before she was added to the Quiet Skies program. “Where is the unknown agency that said this took place? Our TSA is not over in a meeting in Rome,” she said. “There needs to be a thorough investigation as to where this began. Is it the FBI? The Department of Defense?”
Congress could quickly clarify what happened in the Gabbard case, likely by gathering officials in a secure room (or SCIF, for “Sensitive Compartment Information Facility”) and working out which agency or agencies made the initial request. Unfortunately, the inaction of Congress with respect to serious problems inside the Air Marshal Service dating back decades is itself a significant subtext to the Gabbard story.
So is a culture of information suppression. In a comical example provided by a former DHS employee, the department gave out an “innovation award” for a FOIA bootcamp (for training workers in FOIA-proof communication?), and an “Excellence Award” for a “take-back the watchlist litigation team”, whatever that is. (“Take back from what?” the source asked.)
Many in the Federal Air Marshal Service (FAMS) are hesitant to come forward about issues ranging from Quiet Skies to cabin safety to a rash of suicides brought about by overwork. High-profile punishments of those who have come forward before loom large. Since 9/11, Marshals have been detailed to work that’s demeaning, wasteful, at times pointless, and in its recent incarnation, ethically questionable. However, the TSA has successfully clamped down on complaints from within by defining virtually all disclosures as releases of “sensitive security information,” a go-to technique that popped up again in the Gabbard case.
Empower’s letter noted it has a meeting scheduled with Department of Homeland Security Inspector General Joseph Cuffari “in coming days,” and asked the IG for help in making sure Marshals aren’t subject to retaliation. Leavitt wrote to Cuffari’s office last week after hearing TSA had “initiated an investigation into what it considers a ‘leak’ of Sensitive Security Information (SSI) regarding the surveillance of Ms. Gabbard.”
Ironically, Leavitt wrote an amicus brief in a September 2014 Supreme Court case, saying “The TSA itself has misused its SSI designation to withhold embarrassing information.” This is exactly the problem worrying the whistleblowers he currently represents. The TSA also reportedly sidesteps FOIA requests by declaring issues to be “SSI.”
Tension over the identification of legitimate whistleblower disclosures as security leaks has hung over the agency since the Bush years. The first blow came when an Air Marshal named Robert MacLean was removed after being a source for a 2003 MSNBC story, about the TSA reportedly canceling missions despite a hijacking threat. The TSA argued MacLean had revealed sensitive security information, and the case went all the way to the Supreme Court.
MacLean prevailed in a landmark whistleblower case and was reinstated. However, he was later fired again, after testifying about other security gaps that rendered the Air Marshals’ missions difficult to impossible. One problem was a lack of secondary locks in cockpits. Especially in planes with cabin doors that open inward toward the pilots, tests showed these doors are so easily charged that even a fully alert Marshal won’t be able to act.
“I complained that Air Marshals can’t stop a 9/11-style cockpit attack,” says MacLean today. “Because when that door opens, there’s really nothing we could do.”
Congress just this year made installing secondary barriers mandatory, although the rule may take up to five years to implement, proof of sorts that the problem was real and MacLean was right. But MacLean’s firing, as well as retaliation against other whistleblowers, has made Marshals hesitant to complain.
“They don’t want to end up like me,” MacLean says.
The Air Marshal dilemma sounds like those of police in shows like The Wire: a huge team of trained officers put on expensive details chasing unthreatening or political targets while producing literally zero results (Quiet Skies has never led to an arrest), when they could be used to do higher-level investigations. This raises the question of whether the program needs scrapping, as the Empower letter to Congress points out.
“If Ms. Gabbard—and others like her selected for SMC surveillance—pose no threat whatsoever to aviation security,” they write, “Congress should consider whether to discontinue the Quiet Skies program.
The question is, will even one committee investigate? Some former Marshals are hopeful the high-profile nature of the Gabbard incident will finally spur action by legislators who’ve been historically reluctant to cross the DHS and deal with the mess inside the TSA. LaBosco rattles off a long list of oversight committees that have heard Quiet Skies complaints for years and done nothing.
“Here we are,” she says. “If they would’ve put a stop to this before, this would’ve never happened.”
