One of the nation's most respected counterterrorism
experts is predicting that Congress will take action to rein in the "unchecked
power" of the Federal Bureau of Investigation to spy on U.S. citizens without
court approval and then forbid them from publicly protesting the violation
of their civil liberties.
He is Mike German, a 16-year FBI veteran who resigned as a special agent in
2004 to make Congress and the public aware of the continuing deficiencies in
FBI counterterrorism operations after the implementation of the 9/11 Commission's
German told IPS that following passage of the USA PATRIOT Act in 2001, FBI
operations have been conducted "with unchecked power, hampered by mismanagement
in its counter-terrorism unit, and facilitated by lack of congressional oversight."
The FBI, he added, "is obtaining personal and business records they're
not entitled to."
He also called attention to so-called "third party error." This occurs
when the government targets a particular telephone number or e-mail address,
and then not only continues to tap all who call into that target, but the calls
and e-mails sent to and from the addresses of these "secondary targets,"
and calls to and from these secondary targets, creating groups of tertiary targets.
He also told IPS that there is little evidence that the FBI is systematically
purging its databases of telephone or e-mail records unlawfully or inadvertently
obtained during these electronic surveillance operations.
German's charges come on the heels of a report last month by the Department
of Justice inspector general (IG), which concluded that the FBI was continuing
to issue so-called national security letters (NSLs) unlawfully.
The IG's report suspended judgment on the effectiveness of reforms put in place
by the FBI following a 2006 IG report that found widespread abuses in the agency's
use of NSLs. But others are less charitable.
Michael Ratner, president of the Center for Constitutional Rights, a civil
liberties advocacy group, told IPS, "DOJ's reforms have clearly not fixed
the problem; despite these fixes, the misuse of NSLs continues. It is far past
the time when Congress ought to mandate judicial approval of such a significant
invasion of privacy. Without such approval any claimed reforms have little meaning."
NSLs are a form of administrative subpoena used by the FBI and reportedly by
other U.S. government agencies, including the Central Intelligence Agency, the
Department of Defense, and the Department of Homeland Security. They are letters
issued to a particular entity or organization compelling them to turn over various
records and data pertaining to individuals. They require no probable cause or
judicial oversight. They also contain a gag order that bars the recipient of
the letter from disclosing that the letter was ever issued. The USA PATRIOT
Act, passed in 2001, greatly expanded the use of NSLs, allowing their use in
scrutiny of U.S. residents, visitors, or U.S. citizens who are not suspects
in any criminal investigation. The PATRIOT Act reauthorization statutes passed
by Congress in early 2006 added specific penalties for noncompliance or disclosure.
In his most recent report, the IG, Glenn A. Fine, reported that the FBI twice
ignored the constitutional objections of the special court established under
the Foreign Intelligence Surveillance Act (FISA) to obtain private records for
national security probes.
The IG's latest review follows a report last March that concluded that the
FBI had misused its powers between 2003 and 2006 to obtain business records
with private data. He said it filed improper requests for records and collected
e-mail data without proper authorization. Fine's 2007 report found 48 violations
of law or rules in the bureau's use of national security letters from 2003 to
Fine's 2007 report concluded that the FBI sought to cover its acquisition of
phone records on thousands of U.S. citizens from 2003 to 2005 by issuing 11
improper, retroactive "blanket" administrative subpoenas in 2006 to
three phone companies that are under contract to the FBI.
While acknowledging that the FBI took significant steps to correct the problems
after his report last year, the IG added that implementation of the steps was
not yet complete, so "it is too early to determine whether these measures
will eliminate fully the problems."
The IG's 2008 report came as Congress continued to debate legislation governing
federal powers to conduct electronic surveillance of foreign terrorism targets.
A principal bone of contention in that debate is whether telecommunications
companies whose technology and customer records are key to the government's
ability to obtain and track phone calls and e-mail traffic to and from specific
numbers should receive "retroactive immunity" from prosecution
for assisting the government during a time when the Bush administration had
no congressionally mandated authority to do so.
The administration contends the telecommunications companies were simply doing
their "patriotic duty" to help their government following the terrorist
attacks of Sept. 11, 2001. Critics of that position say the government's action
was unlawful because it circumvented the 1978 FISA law, and they claim the warrantless
wiretaps began long before 9/11.
The House of Representatives last week passed legislation denying retroactive
immunity, while the Senate continues to debate two bills, one granting such
immunity, the other denying it. President George W. Bush has said he would veto
any legislation that failed to grant immunity.
The IG's most recent report noted two occasions in which he FISA court rejected
FBI requests to obtain records. The court was concerned that doing so could
interfere with rights protected by the First Amendment of the Constitution which
guarantees freedom of speech, religion, and association and the right to petition
But following the FISA court's rejections, the FBI used separate authority
to get the information without the court's approval, relying on NSLs, even though
that authority also had First Amendment guidelines.
The NSL issue has drawn attention both from Congress and from the civil liberties
Vermont Democrat Sen. Patrick Leahy, chairman of the Senate Judiciary Committee,
said the IG's report "outlines more abuses and what appears to be the improper
use of National Security Letters for years in a systemic failure throughout
Legislative action may be necessary to correct these abuses."
Legislation to correct the abuse of the national security letter authorities
has been introduced in the House of Representatives by Rep. Jerrold Nadler,
a New York Democrat, and in the Senate by Sen. Russ Feingold, Democrat from
And the Center for Constitutional Rights' Ratner told IPS, "We have never
believed that national security letters should be issued without court approval
and find it unacceptable that those targeted by such letters are muzzled. The
poisonous fruit of the current practice is what could have been expected: FBI
agents and other secret police running around without any suspicion of criminal
activity grabbing not only the records of so-called targets but of all persons
who have had any communications with the 'targets.'"
(Inter Press Service)