A few months before rioters stormed the US Capitol, the Department of Homeland Security restricted the flow of open-source intelligence reports about "election-related threats" to law enforcement, citing First Amendment concerns, according to documents reviewed by CNN.
The revelations not only add to a growing concerns about intelligence gathering, but they also raise questions about a key staffer on the committee investigating the insurrection and his previous role in determining how threat information that came from public sources, was shared with law enforcement prior to the Capitol attack.
Joseph Maher, who changed the protocols around disseminating open-source information as head of DHS' intelligence arm, is now on the staff of the House Select Committee on January 6.
That committee has a broad mandate that includes examining why authorities were caught so off-guard by the violence that unfolded at the Capitol -- especially considering law enforcement was aware but ultimately chose not to act on a significant number of warning signs on social media and elsewhere in the public sphere.
In a memo dated October 30, 2020, Maher informed DHS officials that all open-source intelligence reports on election-related threats must be approved by DHS leadership and legal counsel prior to release, according to the documents, which were provided to CNN by the Citizens for Responsibility and Ethics in Washington.
"Because of the very real concerns about apparent failures to disseminate and act on intelligence in the leadup to the January 6 insurrection, this memo raises important questions about the intent behind the change, the origins of it, and the effect this policy change had on intelligence dissemination," said Noah Bookbinder, president of CREW watchdog group. "The January 6 select committee should consider these questions."
Maher did not respond to a request for comment. The select committee has defended Maher in response to criticism about his handling of intelligence related to domestic extremists while at DHS. But when asked about the October memo, a spokesperson for the bipartisan panel, Tim Mulvey, told CNN that Maher is "recused from any Select Committee matters dealing with DHS" in light of his prior service at DHS and committee policy.
"All members of the Select Committee staff are required to identify areas where a potential personal or organizational conflict of interest may exist, and staff leadership is taking affirmative steps to screen for such conflicts. Any staff member deemed or determined to have an actual conflict or the appearance of a conflict will disclose and recuse themselves from such matters," he said in a statement.
Maher's October memo also reveals new details on how DHS balanced free speech and the increasingly violent rhetoric surrounding the presidential election last year.
Maher noted that there would likely be an increase in open-source intel reports on these issues, and that he was not imposing limits on collecting the intel. But he said such reports would need to go through a "pre-release review."
"We anticipate that the period leading up to, including, and immediately following the presidential election on 3 November may give rise to physical violence, civil unrest, and other threats related to the election," Maher wrote.
"At the same time, we recognize that this mission space carries sensitivities and complexities that are not always anticipated or that do not lend themselves to bright line advance guidance," he added. "Civil unrest and election- or voter-related issues often invoke U.S. Persons and First Amendment-protected activity."
As a result, Maher "created additional levels of review before intelligence reports about election-related civil unrest could be sent out to other parts of the government," according to Bookbinder.
Since his hiring was announced by the select committee earlier this year, critics have questioned how Maher can objectively help investigate failures around the dissemination of intelligence on election-related threats and domestic extremists considering they occurred under his leadership.
While the October memo provides one of the first concrete examples of how Maher changed department policy in his previous role at DHS, the specific impact of this shift remains unclear.
Intelligence sharing breakdowns
Law enforcement officials who have testified about the security failures around January 6 have pointed the finger at DHS, along with other agencies, as they described the intelligence sharing breakdowns that took place prior to the attack.
In February, former US Capitol Police Chief Steven Sund alleged that the FBI, US Secret Service, Department of Homeland Security and the DC Metropolitan Police Department failed to anticipate violence on that day, though he said it was reasonable to rely on that intelligence since earlier pro-Trump rallies had been similarly assessed and ended up not being violent.
"The entire intelligence community seems to have missed this," he wrote.
On January 3, an assessment of the upcoming protests indicated it was "expected to be similar to the previous Million MAGA March rallies in November and December 2020, which drew tens of thousands of participants," Sund wrote in his letter to House Speaker Nancy Pelosi. The assessment indicated that the far-right Proud Boys and far-left Antifa groups were expected at the Capitol on the January 6 and "may be inclined to become violent."
A day later, the US Capitol Police's daily intelligence report assessed the risk of violence at these events as either "remote" or "improbable," according to Sund's letter. That day's report noted "the Secretary of Homeland Security has not issued an elevated or imminent alert at this time."
CNN previously reported that the DHS intelligence division did not issue a specific warning about the possibility of violence on January 6, according to two DHS officials, but did author and disseminate several assessments highlighting potential threats surrounding election season.
A bipartisan Senate report examining security failures around January 6 also stated that DHS Office of Intelligence and Analysis, which Maher led in the months leading up to the attack, "never produced an intelligence product, bulletin, or warning specific to the January 6 Joint Session of Congress."
"One I&A official informed the Committees that he was 'not aware of any known direct threat to the Capitol before January 6,' despite many online posts mentioning violence," the report adds. "In briefings with the committees, I&A officials highlighted the difficulty in discerning credible threats from online bravado and constitutionally protected speech, which limits its collection capabilities."
In March, Maher's successor, DHS acting intelligence chief Melissa Smislova acknowledged that "more should have been done" to understand the threat of violence ahead of the US Capitol attack, pointing to "concerning information" that was evaluated in the weeks prior.
Maher's role on the committee
That breakdown is well within the scope of the select committee's investigation.
Earlier this month, the committee demanded that DHS hand over "all documents and communications pertaining to rules, regulations, procedures, or policies that restrict monitoring or reporting related to First Amendment protected activities."
It also requested "all documents and communications pertaining to agency review, collection, or dissemination of social media evidence in the 6 months prior to January 6, 2021, relating to events that could or ultimately did transpire on January 6, 2021."
While it remains unclear if the October memo was included in the initial batch of documents DHS says it delivered to the committee last week, its relevance to the probe has fueled questions about Maher's role on the panel's staff considering he was in charge of DHS' intelligence arm for several months until late January.
"Maher was in charge. So how can he be a staffer on the Committee investigating whether I&A failed in its job?" asked Mark Zaid, an attorney representing DHS whistleblower Brian Murphy, who served in the same role at DHS until summer 2020. Separately, Murphy has alleged Maher was among the officials who retaliated against him, leading to his demotion.
A source close to the select committee probe also told CNN that Maher's hiring created "bad optics," and that his previous role at DHS could result in questions about conflicts of interest as the investigation progresses.
DHS intelligence office under scrutiny
Maher, who at the time was DHS' principal deputy general counsel, was installed last summer to lead the intelligence office amid a First Amendment controversy and management shakeup.
As the department surged personnel to Portland, Oregon, to assist with the sometimes-violent protests for racial justice and police accountability, a report was published detailing how the Office of Intelligence and Analysis had compiled intelligence reports about the work of two US journalists covering the protests.
The revelation prompted public backlash and Murphy's dismissal. After that report, acting Homeland Security Secretary Chad Wolf also directed the intelligence branch to cease collecting information on US members of the media and ordered a review of the incident. Wolf later told lawmakers that there were three instances of information being distributed as part of the DHS "Open Source Reporting Program" that identified members of the press.
Murphy would later file a whistleblower complaint alleging top political appointees in the Department of Homeland Security repeatedly instructed career officials to modify intelligence assessments to suit President Donald Trump's agenda by downplaying the threat posed by White supremacists, as CNN first reported last year.
The select committee has defended Maher in response to criticism about his handling of intelligence related to domestic extremists while at DHS but declined to comment on the whistleblower retaliation allegations levied by Murphy, noting an inspector general investigation in that case is still ongoing.
"The Select Committee has no reason to believe that Mr. Maher is the focus of this probe and it would be inappropriate for the Select Committee to comment on an ongoing IG review," the committee spokesperson told CNN. "Mr. Maher believes that any allegations implicating him are entirely baseless, that he did not retaliate in any way against anyone."
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