FBI: Over A Thousand Violations On Comm Intercepts
A spot audit conducted by the FBI found more than a thousand violations of the laws and procedures governing the intercept of communications. These results point to a much bigger problem than initially reported last March, and the audit undermines the credibility of the nation's premiere law-enforcement agency at a time when national security remains the primary concern of many Americans:
An internal FBI audit has found that the bureau potentially violated the law or agency rules more than 1,000 times while collecting data about domestic phone calls, e-mails and financial transactions in recent years, far more than was documented in a Justice Department report in March that ignited bipartisan congressional criticism.The new audit covers just 10 percent of the bureau's national security investigations since 2002, and so the mistakes in the FBI's domestic surveillance efforts probably number several thousand, bureau officials said in interviews. The earlier report found 22 violations in a much smaller sampling.
The vast majority of the new violations were instances in which telephone companies and Internet providers gave agents phone and e-mail records the agents did not request and were not authorized to collect. The agents retained the information anyway in their files, which mostly concerned suspected terrorist or espionage activities.
But two dozen of the newly-discovered violations involved agents' requests for information that U.S. law did not allow them to have, according to the audit results provided to The Washington Post. Only two such examples were identified earlier in the smaller sample.
The violations came from the use of National Security Letters, the administrative search warrants that the FBI issues on its own behalf. The NSLs have been the center of almost constant debate ever since Congress first relaxed the rules that govern their use. The FBI and the Bush administration have insisted that they can work within the guidelines provided by Congress in order to protect both national security and civil rights. Opponents charge that the NSL program amounts to a Trojan horse for a Big Brother-style government apparatus that will attack the basic privacy rights of Americans.
The critics sound hysterical, but the FBI and the administration have not proven their suspicions unfounded. So far, the violations appear to mostly come from carelessness; most of them occurred when telecom providers included information that the FBI did not request, but kept anyway rather than returning or destroying. Fourteen appear to be more deliberate -- and since this was a 10% spot audit, one could extrapolate these figures into dozens more besides. In these cases, the FBI got full credit histories on targets, something forbidden by the rules governing counterterrorism investigations.
The audit did produce some good news. The FBI has improved its performance to complete compliance on Exigent Circumstance Letters. Earlier, the Justice Department had found hundreds of cases where the FBI abused this emergency process. They have advised the agents involved of their rights and are determining whether to bring charges against them for that abuse -- and this has had the salutary effect on the process that this audit confirms.
We need a strong FBI to help protect national security, but we also need them to follow the law and protect our civil rights. These audits show that the administration has the right idea, but the scale of the violations show that they need to do a lot more work before we can feel comfortable that they are fulfilling both missions. If they cannot keep from committing these violations, that performance will lead to Congress taking action that could hurt our ability to smoke out terrorists -- so they need to fix the rest of the problems in a hurry.
Posted by Ed Morrissey on June 14, 2007 11:22 AM | Comments (5) | TrackBacks (0)
Comments (5)
Posted by Adjoran | June 14, 2007 12:28 PM
Please do not confuse a spot audit with a scientific sample - it is not.
The number and type of errors committed in other offices could be more or less. There is absolutely no way to tell.
It is, however, probably safe to assume that the telecoms/ISPs routinely are providing more information than requested under the NSLs. That can't be stated with certainty, either, but it sure seems to be a pattern under the audit.
I am unsure why the FBI would be expected to return or destroy materials that weren't specifically requested anyway. If they received them in good faith, there is no reason to do either. Those which were requested in violation of their authority should be destroyed, naturally, and could not be used in prosecutions.
Posted by Al Maviva | June 14, 2007 1:04 PM
Here's the problem. Most of these errors may be attributable to sloppy recordkeeping or simple errors on the part of the telecoms or the FBI agents.
However, there's no guarantee that slop in the system wont be abused in the future by political leadership intent on taking advantage of the play in the joints, the loopholes, and ordinary administrative oversight.
Moreover, NSL's have gone from exceptional use tools, to really broadly used tools the DOJ likes to rely on in many cases where a warrant would have been sought, back in the old days. They are crafting the NSL - which was a voluntary compliance tool for the most part - into a de facto administrative warrant to use in cases the DOJ wants to put a high priority on - kiddie porn, terrorism, and any kind of crime occurring in part via internet service providers today, *everything else* tomorrow.
For the most part, I trust our lawmakers (even most of the dems) and executive branch in how they use discretionary power. That doesn't mean I'm willing to give them a blank check, and having seen what AG Gonzeles and Andy Card got up to in the FISA controversy, it makes me absolutely positive that we need to keep a very close eye on developments in this area. Even within an Administration I have a good amount of trust for, it's possible to find people like Gonzales who have no truck whatsoever with civil liberties principles.
Govt. is a dangerous servant and fearful master... don't forget it.
Posted by Rhymes With Right | June 14, 2007 1:08 PM
If you actually look at the figures, though, only about 2 dozen involve the FBI seeking more than allowed -- the rest involve the ISPs and phone companies giving more than requested, with the FBI then going back to amend paperwork to include all that was given -- a practice since banned, but not prohibited at the time.
And while we will no doubt here criticism of the administration over this, let me pose the question from the other side -- what would be the response of the critics and the American people if the FBI DID NOT keep and use the extra information, only to later have some of it turn out to be indicative of a successful terrorist attack? It would be considered a sign of ineptitude.
As a result, I'd rather see the FBI accuse of overreaching than of being inept.
Posted by Adjoran | June 14, 2007 1:18 PM
Please do not confuse a spot audit with a scientific sample - it is not.
The number and type of errors committed in other offices could be more or less. There is absolutely no way to tell.
It is, however, probably safe to assume that the telecoms/ISPs routinely are providing more information than requested under the NSLs. That can't be stated with certainty, either, but it sure seems to be a pattern under the audit.
I am unsure why the FBI would be expected to return or destroy materials that weren't specifically requested anyway. If they received them in good faith, there is no reason to do either. Those which were requested in violation of their authority should be destroyed, naturally, and could not be used in prosecutions.
Posted by Tim | June 14, 2007 1:41 PM
How is this any different than immigration enforcement?