Mystery Surrounds Leaked Draft DHS Document at Center of Controversial Travel Ban Decisions by Two Federal Judges
Both federal judges who issued separate decisions on March 15 revoking President Trump’s travel ban cited a draft Department Homeland Security document leaked to the Associated Press by an unknown person and included in a story published on February 24 as evidence central to their rulings.
The significance of the unofficial leaked draft DHS document upon which these two federal judges relied in making their controversial travel ban decisions is the false information it conveys about the level of risk posed to national security by refugees who commit terrorist acts.
The leaked draft DHS document also makes no mention at all of the significant public health risk, particularly from tuberculosis posed by refugees, a topic on which Breitbart News has reported extensively.
Neither Judge Chuang nor Judge Watson noted that two Somali refugees, Dahir Adan in St. Cloud, Minnesota, and Abul Razak Ali Artan in Columbus, Ohio, committed acts of terror during a two month period in 2016, the first in September 2016 and the second in November 2016, that injured a total of 21 Americans.
The data included in the leaked draft document “is dramatically different than the data reported in another list of terrorists compiled by former Senator, now Attorney General, Jeff Sessions,” Breitbart News reported last month.
According to a document published by the Senate Judiciary Committee’s Subcommittee on Immigration and the National Interest, “DOJ Public/Unsealed Terrorism and Terrorism-Related Convictions 9/11/01-12/31/14,” 74 people from the seven countries identified in the temporary travel ban in Executive Order 13679–Iran (3), Iraq (19), Libya (1), Somalia (21), Syria (7), Sudan (3), and Yemen (20)–were arrested and convicted of terrorist acts between 2001 and 2014.
The Senate document identified 580 terrorists arrested and convicted, 375 of whom were foreign-born whose country of origin was also included in the report.
In other words, of the known acts of terrorism during this 13- year period, more than 19 percent (74 out of 375) were perpetrated by citizens of the seven countries subject to the temporary travel ban in Executive Order 13769. Those same seven countries accounted for less than one percent of the immigrant visas granted to residents of foreign countries during those 13 years.
A second document, titled “Individuals Implicated in Terrorism Since March 2014,” was also published by that same subcommittee.
“[Senator] Cruz and [Senator] Sessions’ office have so far identified at least 131 additional individuals [identified in that document] who have been implicated in terrorism since early 2014 — these haven’t been convicted and are newer cases. At least 54 of these individuals are foreign-born and 16 of them were initially admitted to the United States as refugees. At least another 17 are the natural-born citizen children of immigrants,” the Daily Callerreported.
Judge Chuang and Judge Watson issued temporary restraining orders halting the implementation of much of President Trump’s second travel ban, Executive Order 13780, which temporarily banned travel from six nations also temporarily banned in Executive Order 13769–Iran, Libya, Somalia, Syria, Sudan, and Yemen–but removed the seventh nation temporarily banned in the first travel ban, Executive Order 13769–Iraq.
Neither Judge Chuang nor Judge Watson mentioned these two Senate reports – “DOJ Public/Unsealed Terrorism and Terrorism-Related Convictions 9/11/01-12/31/14,” and “Individuals Implicated in Terrorism Since March 2014,” in their decisions.
Instead, they relied upon the draft DHS document leaked to the Associated Press and published in the February 24 Associated Press article.
“Plaintiffs argue that the stated national security rationale is limited and flawed,” Judge Theodore Chuang of the U.S. District Court in Maryland wrote on page 34 of his March 15 decision,
Among other points, they note that the Second Executive Order does not identify examples of foreign nationals from Iran, Libya, Sudan, Syria, or Yemen who engaged in terrorist activity in the United States. They also note that a report from the Department of Homeland Security, Office of Intelligence and Analysis, concluded that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity” and that “few of the impacted countries have terrorist groups that threaten the West.” l.R. 158. Furthermore, they note that the 300 FBI investigations are dwarfed by the over 11,000 counterterrorism investigations at anyone time, only a fraction of which lead to actual evidence of illegal activity (emphasis added)
“In addition to these accounts, Plaintiffs describe a draft report from the DHS, which they contend undermines the purported national security rationale for the Executive Order,” Judge Derrick Watson of the U.S. District Court in Hawaii wrote on page 13 of his March 15 decision (emphasis added):
The February 24, 2017 draft report states that citizenship is an “unlikely indicator” of terrorism threats against the United States and that very few individuals from the seven countries included in Executive Order No. 13,769 had carried out or attempted to carry out terrorism activities in the United States. SAC ¶ 61 (citing SAC, Ex. 10, ECF No. 64-10).
According to Plaintiffs, this and other evidence demonstrates the Administration’s pretextual justification for the Executive Order. (emphasis added)
Judge Chuang, who made a factual error in the very first sentence of his March 15 decision, as Breitbart News reported, makes another factual error in his description of the document as “a report from the Department of Homeland Security, Office of Intelligence and Analysis.” Judge Watson accurately describes it as a “draft report,” but inaccurately describes it as a “February 24, 2017 draft report.” (emphasis added).
The draft document, or “report” that someone had obtained from DHS and leaked to article authors Alice A. Caldwell and Vivian Salama was published on February 24 in an “Exclusive” Associated Press story. The leaked draft document was actually prepared some time prior to February 24.
As Breitbart News reported previously, several legal scholars have questioned Chuang’s impartiality in the case, since he served as deputy general counsel at the Department of Homeland Security from 2009 to 2014 in the Obama administration, where he defended policies diametrically opposed to President Trump. DHS is a defendant in the suit.
A timeline of the mysterious events surrounding the leaking of this draft DHS document that played such an influential role in the March 15 decisions of Judge Chuang and Judge Watson raises a number of questions about the document’s provenance:
January 27- President Trump signs Executive Order 13769.
January 27- Vivian Salama, the Associated Press White House reporter covering national security and foreign relations, writes an Associated Press story (co-authored with Julie Pace) that quotes “John Cohen, a former Department of Homeland Security counterterrorism official who worked under Democratic and Republican administrations, said the order didn’t address America’s “primary terrorism-related threat” — people already in the U.S. who become inspired by what they see on the internet.”
Cohen “served as Acting Under Secretary for Intelligence and Analysis, United States Department of Homeland Security,” during the Obama administration according to his Linked In account.
January 29 – Another Vivian Salama story (co-authored with Rachel Zoll) includes direct quotes from executives with HIAS (formerly known as Hebrew Immigrant Aid Society), one of the top nine federally funded refugee resettlement agencies, and the International Refugee Assistance Project (IRAP):
February 3 –Hawaii v Trump filed.
February 3 – Judge Robart issues a temporary restraining order that halts the 90 day travel ban and 120 day refugee ban included in Executive Order 13679, but leaves the 50,000 limit on refugees for FY 2017 intact.
February 3 – In an Associated Press article, published at Fortune, “John Cohen, a former DHS official who helped write the CVE [Countering Violent Extremism] strategy and led its implementation, said it specifically didn’t target extremists inspired by al-Qaeda and the Islamic State, because local law enforcement said white supremacist and other extremist groups were more problematic, and communities and police were targeted.”
“He criticized the program for focusing too much on Muslim and Arab communities since he left in 2014, and called on Trump to dump his campaign language from any reimagining of CVE or risk driving “an even greater wedge between those responsible for stopping violent attacks and those within the community who are critical partners in effectively doing that.”
February 7 – HIAS/IRAP files complaint. “On February 7, 2017, Plaintiffs filed a Complaint alleging that the First Executive Order violated the Establishment Clause of the First Amendment to the United States Constitution, U.S. Const. amend. I; the equal protection component of the Due Process Clause of the Fifth Amendment”
February 24 – An “Exclusive” Associated Press story written by Vivian Salama and Alice C. Caldwell is published which includes a leaked draft document that originated in the Department of Homeland Security’s Office of Intelligence and Analysis and was provided to them by unknown individuals.
March 6 – Trump signs second Executive Order 13780
March 8 – Ismail Elshikh, Ph.D., “the the imam of the Muslim Association of Hawaii,” is added as a second plaintiff, a second amended complaint is filed by plaintiffs in Hawaii v Trump “seek[ing] a nationwide temporary restraining order that would prohibit the Federal Defendants from ‘enforcing or implementing Sections 2 and 6 of the Executive Order’ before it takes effect. ” The complaint cites the leaked draft DHS document published in the February 24 AP story.
March 10 – HIAS/IRAP file an amended complaint, citing the leaked draft DHS document published in February 24 AP story.
March 15 – Judge Watson issues a ruling that halts the travel ban and refugee ban imposed by President Trump in Executive Order 13780, citing “The February 24, 2017 draft report states that citizenship is an ‘unlikely indicator’ of terrorism threats against the United States and that very few individuals from the seven countries included in Executive Order No. 13,769 had carried out or attempted to carry out terrorism activities in the United States.”
March 15 – Judge Chuang issues a ruling that halts the travel ban and refugee ban imposed by President Trump in Executive Order 13780, citing “a report from the Department of Homeland Security, Office of Intelligence and Analysis, [that] concluded that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity” and that “few of the impacted countries have terrorist groups that threaten the West.” Judge Chuang also extends hearing on refugee limitation to March 28.
“Analysts at the Homeland Security Department’s intelligence arm found insufficient evidence that citizens of seven Muslim-majority countries included in President Donald Trump’s travel ban pose a terror threat to the United States,” Salama and Caldwell reported in their February 24 AP story.
But DHS spokesperson Gillan Christensen told both AP and Breitbart News the leaked document was in no way a final approved DHS work product.
“While DHS was asked to draft a comprehensive report on this issue, the document you’re referencing was commentary from a single intelligence source versus an official, robust document with thorough interagency sourcing . . . The report does not include data from other intelligence community sources. It is incomplete,” Homeland Security spokesperson Gillian Christensen told Salama and Caldwell.
Significant in Christensen’s comment was her use of the term “a single intelligence source” to describe the author of the leaked document.
In their February 24 AP story, Salama and Caldwell used the plural “analysts” to describe the authorship of the leaked document.
“The [leaked draft] report was incomplete and had not been subject to the extensive interagency review process required of finished intelligence products,” Christensen told Breitbart News on February 26.
The most significant aspect of the content of the leaked DHS document is the data its author consciously chose to exclude.
“DHS I & A [Intelligence and Analysis] assesses that country of citizenship is unlikely to be a reliable indicator of potential terrorist activity,” the three page unsigned document with no letterhead states in a section titled “Citizens of Countries Affected by E.O. 13769 Rarely Implicated in US-Based Terrorism”:
Since the beginning of the Syrian conflict in March 2011, at least 82 primarily US-based individuals, who died in pursuit of or were convicted of any terrorism-related federal offense inspired by a foreign terrorist organization, according to a DHS study of Department of Justice press releases on convictions of terrorist attack perpetrators killed in the act.
In an end note, the leaked draft document references “DHS I&A Terrorism-Related Activities Study; 16 FEB 17; DOI 01 MAR 11 – 31 JAN 17.”
A footnote makes it clear that the report intentionally excluded at least a dozen Somalis who were arrested after attempting to leave America to fight for ISIS: “For the purposes of this paper, we limited our data to individuals prosecuted under 8 USC Chapter 133B in support of or inspired by a Foreign Terrorist Organization (FTO). We excluded traveling or attempting to travel overseas to join a FTO and activities unrelated to FTOs, to include purely domestic terrorism.”
Given the obvious flaws in the draft document, it is unclear why both Judge Chuang and Judge Watson chose to rely upon it so heavily in their decisions.
It is also unclear who leaked the draft document from DHS, why these unknown persons leaked the draft document, how it came in to the possession of AP reporters Vivian Salama and Alice C. Caldwell, if any laws were violated by the leak, and whether or not there is a current investigation at DHS or within the Trump administration to determine the identity of the document leaker.
The original leaker was almost certainly a bureaucrat at the DHS Office of Intelligence and Analysis who either prepared the draft document or had access to the draft document.
Beyond that, there is no solid evidence as to the identity of the leaker.
There are, however, some curious connections between current and former officials in that office and the Democratic establishment and the press, in particular Associated Press.
John Cohen, the former Acting Under Secretary for Intelligence and Analysis at the Department of Homeland Security, is a known source of Vivian Salama, the AP reporter who co-authored the report that published the leaked document. (See January 27 article).
And, as Breitbart News has reported previously David Grannis, the Obama holdover bureaucrat who has served as Principal Deputy Under Secretary for Intelligence and Analysis at the Department of Homeland Security since 2015, the office in DHS where the draft document purportedly was created, is one of eight Obama holdovers at DHS who President Trump can “fire or remove.”
“As a civil servant, Grannis cannot be fired from his job,” Breitbart News reported.
Grannis’ background is of a highly political Democrat:
A lifelong Democrat, “[p]rior to joining DHS, Mr. Grannis served as the Staff Director of the U.S. Senate Select Committee on Intelligence (SSCI) from 2009 through 2014 and as the Minority Staff Director for 2015. During this time, he served as the principal intelligence advisor to SSCI Chairman Dianne Feinstein and SSCI Members and led the Committee’s efforts to produce and enact annual Intelligence Authorization Act from 2010 through 2016 and the Cybersecurity Act of 2015, according to the DHS website.
He has spent his career working for partisan Democratic members of Congress:
He previously served as a staff designee to Senator Feinstein on the SSCI from 2005 until 2009 with a varied portfolio of committee responsibilities. Mr. Grannis worked on the House Select Committee on Homeland Security with responsibilities for intelligence, aviation security, and science and technology from 2003 to 2005 and was Senior Policy Advisor to Representative Jane Harman on matters of national security from 2001 to 2003.
“A spokesperson for the Department of Homeland Security would neither confirm nor deny that Grannis was the author of, or had reviewed, the leaked draft document, though it did appear to be authored by someone associated with his area of responsibility within DHS,” Breitbart News reported on February 26.
How AP reporters Vivian Salama and Alice C. Caldwell came into possession of the leaked draft DHS document which they published in their Exclusive February 24 AP story is another unsolved mystery.
One thing that is no mystery is Salama’s sympathy for residents of Yemen.
Yemen, one of the seven Middle Eastern countries affected by the temporary travel ban in President Trump’s January 27 Executive Order 13769, and one of the six Middle Eastern countries affected by the travel ban in President Trump’s revised March 6 Executive Order 13780, “holds a special place in my heart,” Salama wrote in 2014.
“Anyone who knows me, knows Yemen holds a special place in my heart. Its diverse landscape is breathtaking and its rich history is virtually untouched after centuries. But what I love most about Yemen is, hands down, its people (its food comes in a distant second!) They smile from inside, even though they face a great deal of adversity, militants roam freely by land and foreign drones hover above them. This report, from my latest visit to Yemen, explores that latter phenomenon — U.S. drones — and argues that the their existence alone is causing profound psychological detriment to a nation,” Salama wrote on her blog in April 2014.
She linked to the Rolling Stone article she wrote on that same day, “Death From Above: How American Drone Strikes Are Devastating Yemen”:
The people of Yemen can hear destruction before it arrives. In cities, towns and villages across this country, which hangs off the southern end of the Arabian Peninsula, the air buzzes with the sound of American drones flying overhead. The sound is a constant and terrible reminder: a robot plane, acting on secret intelligence, may calculate that the man across from you at the coffee shop, or the acquaintance with whom you’ve shared a passing word on the street, is an Al Qaeda operative. This intelligence may be accurate or it may not, but it doesn’t matter. If you are in the wrong place at the wrong time, the chaotic buzzing above sharpens into the death-herald of an incoming missile.
Such quite literal existential uncertainty is coming at a deep psychological cost for the Yemeni people. For Americans, this military campaign is an abstraction. The drone strikes don’t require U.S. troops on the ground, and thus are easy to keep out of sight and out of mind. Over half of Yemen’s 24.8 million citizens – militants and civilians alike – are impacted every day. A war is happening, and one of the unforeseen casualties is the Yemeni mind.
Symptoms of post-traumatic stress disorder, trauma and anxiety are becoming rampant in the different corners of the country where drones are active. “Drones hover over an area for hours, sometimes days and weeks,” said Rooj Alwazir, a Yemeni-American anti-drone activist and cofounder of Support Yemen, a media collective raising awareness about issues afflicting the country. Yemenis widely describe suffering from constant sleeplessness, anxiety, short-tempers, an inability to concentrate and, unsurprisingly, paranoia.
After leaving Rolling Stone, Salama became AP’s correspondent on Baghdad, Iraq, and went on to become AP’s deputy political editor, and now serves as AP’s White House correspondent.
“I’m very pleased to let you know that Vivian Salama, AP’s current Baghdad bureau chief, will join us in early December as deputy political editor,” AP director of media relations Laura Easton announced in October 2015:
Vivian is from New City, New York. She is a graduate of Rutgers University in New Jersey and holds a master’s degree in Middle East and Islamic Studies from Columbia University.
After moving to the Middle East, she was a freelancer for AP Television from 2004 to 2006. She went on to report in Pakistan, and then opened the Bloomberg bureau in Abu Dhabi, United Arab Emirates. Vivian also has appeared as a commentator on BBC and NPR, among others, and has contributed to Newsweek, the Daily Beast, Rolling Stone and the Atlantic.
According to her Linked In account, Salama is currently enrolled at Georgetown University Law School, in addition to her duties covering the White House in national security and foreign affairs for AP.
The International Refugee Assistance Project, one of the plaintiffs in the lawsuit in which Judge Chuang ruled on March 15 to revoke President Trump’s Executive Order 13780 which contained the travel ban for citizens of Yemen and five other Middle Eastern countries, has a chapter at Georgetown University Law Center, as well as about thirty other law schools around the country.
Judge Chuang is expected to rule on a plaintiffs request set forward in the original complaint to more than double the number of refugees to enter the United States on Tuesday.
The Department of Justice is appealing Judge Chuang’s March 15 ruling revoking the travel ban to the 4th Circuit Court of Appeals.