FBI caught lying to spy on reporters, citizens without court order
examiner.com | Apr 18th 2010
Testifying this week before the House Judiciary Committee's Subcommittee on Constitution, Civil Rights and Civil Liberties, Inspector General Glenn Fine urged Congress to increase its oversight on FBI agents' abuses of a process that allows them to get phone records without a court order.
The inspector general issued reports in March 2007 and March 2008 about other abuses that allowed agents to get around court orders, such as mis-using national security letters. By filing national security letters, agents can quickly obtain phone records without judicial checks and balances, simply by claiming national security is at stake.
In his testimony this week, Fine said he has now closely examined another loophole being exploited by FBI agents.
"Exigent Circumstances"
By claiming "exigent circumstances" exist, agents can get around the need for search warrants to obtain a citizen's phone records. While a warrant would require a judge to conclude there is probable cause to believe a crime is being committed, and a national security letter would require FBI supervisors to sign a form that says national security is at risk, simply claiming 'exigent circumstances' is a much less formal and has almost no oversight by anyone.
Inspector General Fine testified,
The FBI's practice of using exigent letters circumvented the requirements of the Electronic Communications Privacy Act (ECPA) statute governing national security letters, and also violated Attorney General Guidelines and FBI policy."
Fine testified that agents started using exigent letters shortly after the September 11, 2001 terrorist attacks. Apparently, when they realized how quickly they yield all sorts of information, agents started employing that tactic for cases that have nothing to do with terrorism, such as spying on news reporters.
With some of the 9/11 terrorism investigations, agents promised future grand jury subpoenas and simply filled out 'exigent circumstances' forms to use as "placeholders." In other words, they'd fill out the forms and tell their supervisors that a warrant will be going before a judge shortly, but this document will yield the information more quickly while that process is in motion.
Here is the language in most of the "exigent letters" sent to citizens' phone companies:
Due to exigent circumstances, it is requested that records for the attached list of telephone numbers be provided. Subpoenas requesting this information have been submitted to the U.S. Attorney's Office who will process and serve them formally to [the communications service provider] as expeditiously as possible."
Trouble is, Fine testified, that was a lie. Agents had never attempted to get warrants. They only used that language because it got the job done and it looked like there was plenty of oversight over their activities.
Fine testified that 722 exigent letters were issued by the FBI's Communications Analysis Unit, requesting records on more than 2,000 different phone numbers.
He said that FBI agents and their supervisors could not explain their actions when asked why they issued exigent letters when they knew that no subpoena had been requested.
In some cases, the exigent letters issued....were used in urgent investigations. But our review found that, contrary to the letters, emergency circumstances were not present when many of the letters were issued. Also contrary to the claims made in the letters, in most cases subpoenas had not been sought for the records."
Some agents told inspectors that they had inherited this practice and didn't feel like they were in a position to change how it's been done for some time. Others said they thought someone else had reviewed or approved the letters.
Other agents told investigators it was not their responsibility to follow up with the appropriate legal process.
Supervisors and attorneys did not review the requests at all in most cases, unlike properly-issued national security letters. With national security letters, the approval forms are attached, showing that supervisors and lawyers had approved it. But with exigent letters, that's all missing.
Of the 29 employees assigned to the communications analysis unit, only 2 had any knowledge of the rules that govern the use of 'exigent circumstances' letters, according to Fine's testimony.
Plus, those unfamiliar FBI employees were chummy with the three major telecommunications providers, according to the report. Some of the telecommunications providers even had staff on-site in the FBI's offices, so they were the point people for all requests.
Those telecommunications providers could simply log into their databases and instantly come up with phone records, offering "sneak peaks" for agents who would hint at going through the rigorous legal process later.
In fact, that informal relationship allowed FBI agents to simply ask for citizens' phone records with no paper trail or scrutiny from supervisors, according to the inspector general's testimony.
The scope and variety of these informal requests was startling,"
the Inspector General testified.
Sometimes, FBI employees would simply send e-mails asking for the phone records, or they'd jot it down on a Post It note and hand it to their favorite telecommunications provider employee who was in the same building with them.
Communications analysts made informal requests with at least 3,500 telephone numbers. There could be many, many more but there was no good record keeping. After all, it's just a casual conversation or a scribble on a Post It note.
In some of the "sneak peaks" that telecommunications providers gave to FBI employees, they told the FBI the name of the subscriber, a look at what numbers were called or how long the calls were.
In some cases, the phone companies simply invited the FBI personnel over to view citizens' phone records on their computer screens.
One senior FBI counterterrorism official described the culture of casual requests for telephone records by observing, 'It [was] like having the ATM in your living room'."
The inspector general told members of Congress that this was a "sneaky practice" that is illegal.
In some cases, agents would cast a wide net in a "community of interest," which may contain only one certain race, or members of one particular mosque. The report said there were 52 exigent letters that went after 'community of interest' phone records.
Agents also requested records on 152 so-called "hot telephone numbers" and phone companies quickly coughed up numbersd dialed and calls received without any legal oversight whatsoever.
"More troubling"
Fine told Congress that the FBI claimed 'exigent circumstances' existed to get phone records for members of the news media. Of course, the reporters never knew this because there was no legal process and no charges were likely ever filed.
In three cases, the FBI set out to find who was leaking information to reporters, so phone companies were told there were 'exigent circumstances' and they gave up long distance calling information and other details about the reporters' phone numbers. One case involved a reporter for the New York Times and the other involved a reporter for the Washington Post.
In the third case, agents sought the cellular telephone records of a reporter.
Justice Department policy has long required that the Attorney General of the United States must approve any subpoena for a reporter, and most certainly an application to get their phone records. The Inspector General pointed out that the Attorney General was not consulted in these cases.
In one of these cases, the FBI loaded the reporters' records that it obtained in response to an exigent letter into a database, where the records stayed for over 3 years until OIG investigators determined that the records had been improperly obtained. Our report concluded that serious lapses in training, supervision, and oversight led to the FBI and the Department issuing these requests for the reporters' records without following legal requirements and their own policies,"
according to Fine's report to Congress.
In some of the paperwork, FBI personnel filled out forms where they swear under oath that certain of the safeguards and oversight were being followed, when in reality that was a lie, according to Fine's report.
That lying even carried over to the most sensitive and restrictive form of phone record gathering in the FBI, known as the Foreign Intelligence Surveillance Court (FISA Court) cases.
FISA is a special court that has classified, top secret oversight of espionage matters. Each and every piece of paper that goes before the FISA court travels through an extensive layer of oversight, usually including deputy attorneys general in the Justice Department.
Yet, the Inspector General's report points out that a review of 37 FISA Court applications for phone records, there were plenty of lies, including:
Five misstatements in four declarations filed under oath by FBI personnel. The declarations inaccurately stated that the FBI had acquired subscriber or calling activity information from NSLs (National Security Letters) when in fact the information was acquired through other means, such as an exigent letter or a verbal request."
One more trick
Finally, if all those tricks aren't enough, the Inspector General found that the FBI sometimes used administrative subpoenas to get telephone records for criminal cases.
In other words, criminal subpoenas are required for any criminal case but agents found it more convenient to issue less restrictive administrative subpoenas, which would normally be used for cases that cannot result in criminal charges.
Some subpoenas were even signed by FBI personnel who had no authority to sign such subpoenas.
Other subpoenas were signed weeks after agents already had their hands on citizens' phone records, meaning they just got the forms signed to make it all seem legitimate.
This latest report to Congress points out that FBI has been put on notice about some of these practices since 2004, but has failed to stop it. In fact, FBI lawyers have issued internal rulings and guidance to FBI personnel that are contrary to the protections citizens are afforded by federal law, according to Fine's testimony.
Once the Inspector General started investigating, the report says "blanket" National Security Letters were issued to "cover" or "validate" a bunch of prior telephone records request to make them seem legitimate.
In some cases, the paperwork failed to mention that agents had already obtained the phone records sometimes three years earlier, but the paperwork was showing up suddenly to legitimize the old requests.
The Inspector General urged the FBI to consider taking disciplinary or legal action against some of the personnel who used fraud or deception to gain phone records of citizens.
We understand that the FBI is now engaged in that process."
While the FBI routinely issues scathing e-mails that target any negative reporting on its practices, no e-mails or news releases were posted in response to this week's report before Congress.
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