by William Fisher IPS 3/19/08

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 reforms.

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 2005.

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 the government.

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 community.

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 the FBI. … 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 Wisconsin.

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