Washington
Post (Oct. 24, 2005).
FBI Papers Indicate
Intelligence Violations.
Secret
Surveillance Lacked Oversight.
By Dan Eggen
The FBI has conducted clandestine
surveillance on some U.S. residents for as long as 18 months at a time without
proper paperwork or oversight, according to previously classified documents to
be released today.
Records turned over as part of a Freedom
of Information Act lawsuit also indicate that the FBI has investigated hundreds
of potential violations related to its use of secret surveillance operations,
which have been stepped up dramatically since the Sept. 11, 2001, attacks but
are largely hidden from public view.
In one case, FBI agents kept an
unidentified target under surveillance for at least five years -- including
more than 15 months without notifying Justice Department lawyers after the
subject had moved from New York to Detroit. An FBI investigation concluded that
the delay was a violation of Justice guidelines and prevented the department
"from exercising its responsibility for oversight and approval of an
ongoing foreign counterintelligence investigation of a U.S. person."
In other cases, agents obtained e-mails
after a warrant expired, seized bank records without proper authority and
conducted an improper "unconsented physical search," according to the
documents.
Although heavily censored, the documents
provide a rare glimpse into the world of domestic spying, which is
governed by a secret court and overseen by a presidential board that does
not publicize its deliberations. The records are also emerging as the House
and Senate battle over whether to put new restrictions on the controversial
USA Patriot Act, which made it easier for the government to conduct secret
searches and surveillance but has come under attack from civil liberties groups.
The records were provided to The
Washington Post by the Electronic Privacy Information Center, an
advocacy group that has sued the Justice Department for records relating to the
Patriot Act.
David Sobel, EPIC's general counsel, said the new documents raise questions
about the extent of possible misconduct in counterintelligence investigations
and underscore the need for greater congressional oversight of clandestine
surveillance within the United States.
"We're seeing what might be the tip
of the iceberg at the FBI and across the intelligence community," Sobel
said. "It indicates that the existing mechanisms do not appear adequate to
prevent abuses or to ensure the public that abuses that are identified are
treated seriously and remedied."
FBI officials disagreed, saying that none
of the cases have involved major violations and most amount to administrative
errors. The officials also said that any information obtained from improper
searches or eavesdropping is quarantined and eventually destroyed.
"Every investigator wants to make
sure that their investigation is handled appropriately, because they're not
going to be allowed to keep information that they didn't have the proper
authority to obtain," said one senior FBI official, who declined to be
identified by name because of the ongoing litigation. "But that is a
relatively uncommon occurrence. The vast majority of the potential [violations]
reported have to do with administrative timelines and time frames for renewing
orders."
The documents provided to EPIC focus on
13 cases from 2002 to 2004 that were referred to the Intelligence Oversight
Board, an arm of the President's Foreign Intelligence Advisory Board
that is charged with examining violations of the laws and directives governing
clandestine surveillance. Case numbers on the documents indicate that a
minimum of 287 potential violations were identified by the FBI during those
three years, but the actual number is certainly higher because the records are
incomplete.
FBI officials declined to say how many
alleged violations they have identified or how many were found to be serious
enough to refer to the oversight board.
Catherine Lotrionte, the presidential board's counsel, said most of its work is
classified and covered by executive privilege. The board's investigations range
from "technical violations to more substantive violations of statutes or
executive orders," Lotrionte said.
Most such cases
involve powers granted under the Foreign
Intelligence Surveillance Act, which governs the use of secret
warrants, wiretaps and other methods as part of investigations of agents of
foreign powers or terrorist groups. The threshold for such surveillance is
lower than for traditional criminal warrants. More than 1,700 new cases were
opened by the court last year, according to an administration report to
Congress.
In several of the cases outlined in the documents released to EPIC, FBI agents
failed to file annual updates on ongoing surveillance, which are required by
Justice Department guidelines and presidential directives, and which allow
Justice lawyers to monitor the progress of a case. Others included a violation
of bank privacy statutes and an improper physical search, though the details of
the transgressions are edited out. At least two others involve e-mails that
were improperly collected after the authority to do so had expired.
Some of the case details provide a rare
peek into the world of FBI counterintelligence. In 2002, for example, the
Pittsburgh field office opened a preliminary inquiry on a person to
"determine his/her suitability as an asset for foreign counterintelligence
matters" -- in other words, to become an informant. The violation occurred
when the agent failed to extend the inquiry while maintaining contact with the
potential asset, the documents show.
The FBI general counsel's office oversees
investigations of alleged misconduct in counterintelligence probes, deciding
whether the violation is serious enough to be reported to the oversight board
and to personnel departments within Justice and the FBI. The senior FBI
official said those cases not referred to the oversight board generally involve
missed deadlines of 30 days or fewer with no potential infringement of the
civil rights of U.S. persons, who are defined as either citizens or legal U.S.
resident aliens.
"The FBI and the people who work in
the FBI are very cognizant of the fact that people are watching us to make sure
we're doing the right thing," the senior FBI official said. "We also
want to do the right thing. We have set up procedures to do the right thing."
But in a letter to be sent today to the
Senate Judiciary Committee, Sobel and other EPIC officials argue that the
documents show how little Congress and the public know about the use of
clandestine surveillance by the FBI and other agencies. The group advocates
legislation requiring the attorney general to report violations to the Senate.
The documents, EPIC writes, "suggest
that there may be at least thirteen instances of unlawful intelligence
investigations that were never disclosed to Congress."