Police state : FBI : Secret Surveillance Lacked Oversight


Richard Moore


FBI Papers Indicate Intelligence Violations 
Secret Surveillance Lacked Oversight 

By Dan Eggen 
Washington Post Staff Writer 
Monday, October 24, 2005; A01 

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

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

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."

© 2005 The Washington Post Company 



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