Surveillance of Dearborn man by feds raises questions over warrant
Detroit — The government is refusing to reveal why federal agents surveilled a Dearborn man after obtaining a secret order used to investigate foreign spies and thwart terror attacks.
Federal court records obtained by The Detroit News chronicle a rare public fight over some of the government's most closely guarded secrets — a battle between Attorney General William Barr and a self-described nerd — and reveal a previously unknown investigation by the FBI's counter-terrorism division.
At the center of the fight is a controversial surveillance tool that has drawn scrutiny after agents used it to investigate links between Russia and President Donald Trump's presidential campaign.
Lawyers for Nassif Sami Daher, 28, want federal prosecutors to divulge the roots of the domestic surveillance investigation and relinquish evidence gathered while surveilling Daher, a self-described gas station employee who also delivers newspapers.
The evidence could reconcile why federal agents obtained a Foreign Intelligence Surveillance Court order to launch a surveillance operation that culminated with Daher accused not of terrorism or espionage, but food stamp fraud.
"Sami is a nerd with a big ego and imagination, but he is not a terrorist or a national security threat,” defense lawyer Amir Makled wrote in a court filing. “Sami has never killed anyone, nor slept with Hollywood stars or the countless women on the cover of Penthouse. He never joined organized crime or terrorist groups.”
Prosecutors are fighting the request but have revealed they intend to use evidence from electronic surveillance collected after receiving permission from a surveillance court judge to monitor Daher's electronic communications.
Investigators wiretapped Daher's phone calls, Makled said.
Most details about the government's surveillance of Daher are classified and redacted from filings in federal court. This includes an application identifying the target of the investigation and probable cause to believe the target is an agent of a foreign power.
Under the 41-year-old Foreign Intelligence Surveillance Act, or FISA, federal judges consider applications to conduct electronic surveillance and physical searches in cases involving foreign intelligence information.
That includes information about an actual or potential terrorist attack, sabotage, proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power.
“I have never heard of a resident of Metropolitan Detroit being investigated through a FISA warrant,” said Dawud Walid, executive director of the Michigan chapter of the Council on American-Islamic Relations. “This case raises questions as to what triggered the government’s interest in this individual. The government should state the reason they got the warrant since they found no criminal activities related to any sort of terrorism or crime relating to a foreign government.
“This type of case echoes the concerns of the late federal court Judge Damon Keith, who said democracy dies behind closed doors,” Walid added.
Last year, FISA court judges received 1,318 applications to conduct surveillance operations, according to the Administrative Office of the U.S. Courts. They rejected 72 applications in part or in full.
Most of the court's work is conducted in secret to protect classified national security information.
Publicly disclosing the application and top secret documents that identify intelligence sources and methods in the Daher case "reasonably could be expected to cause exceptionally grave damage to the national security of the United States," Barr wrote to Detroit U.S. District Judge Nancy Edmunds on June 4.
Makled believes investigators targeted his client after Daher visited relatives in Lebanon. Federal agents questioned Daher after he returned to the United States, the lawyer said.
"They wanted to know if he had any affiliation or knowledge of Hezbollah," Makled said, referring to the designated foreign terrorist group.
Daher and colleague Kamel Mohammad Rammal worked at S&R Petro on Detroit's east side.
The alleged scheme involved paying people 50 cents on the dollar for their food stamp benefits and then obtaining full value from the U.S. Department of Agriculture's Supplemental Nutrition Assistance Program, prosecutors said.
"The SNAP beneficiaries were willing to accept cash for their benefits at a highly discounted rate because it allowed them to use the benefits for any purpose, rather than being restricted to the purchase of eligible food items," according to the indictment.
The scheme totaled $353,393 during a two-year period ending in 2017, prosecutors said.
In September, one month after the indictment, prosecutors revealed that they had gathered evidence through electronic surveillance and approved by the FISA court. The disclosure did not provide any details or justification for the surveillance.
Three months later, in December, Rammal pleaded guilty to one count of wire fraud and later was sentenced to one year and a day in federal prison.
Daher, meanwhile, is scheduled to stand trial Sept. 24 in federal court. He is free on $10,000 unsecured bond.
Daher, a U.S. citizen who holds dual citizenship in Lebanon, is being wrongly targeted because of his ethnicity and because he has traveled to Lebanon to visit relatives, his lawyer said.
It is racist "to conclude that Sami is a terrorist because he visited family in Lebanon," Makled wrote in a court filing. "FISA was used by the government for evidence gathering against Sami for domestic criminal investigation and prosecution beyond the scope of the statutory definition of 'foreign intelligence information.'"
Makled wants the documents to determine the legality of the surveillance.
Prosecutors argue the FISA order was obtained legally and want the judge to privately review the top-secret materials in her chambers. Edmunds should not suppress the evidence but should reject attempts by Daher's lawyer to obtain the documents, prosecutors wrote in a court filing.
The government is allowed to prosecute domestic crimes, like wire fraud, discovered while conducting foreign intelligence surveillance, Assistant U.S. Attorney Cathleen Corken wrote.
“FISA is an extraordinary tool the government has," Makled said. "For them to be using it in a rudimentary, low-level criminal case such as food stamps is just ridiculous."