By Mike German, policy counsel with the ACLU Washington Legislative Office. Before joining the ACLU, Mike was a special agent with the FBI for 16 years.
Sometime in 2006 the FBI twice asked the secret Foreign Intelligence Surveillance Court for an order seeking "tangible things" as part of a counterterrorism case. The court denied the request, both times, "based on concerns that the investigation was premised on protected First Amendment activity."
You might think such a strong rejection from a court that so rarely turns down government surveillance requests would cause the FBI to re-evaluate whether its underlying investigation was being conducted in violation of the First Amendment. Not so. Instead the FBI simply by-passed the court and issued three National Security Letters, which do not require court approval, to obtain the "things" it wanted to continue the investigation. Asked whether this response was appropriate in light of the court’s First Amendment concerns, the FBI General Counsel replied she believed it was, "because she disagreed with the FISA Court."
Last week the Department of Justice Inspector General released its second annual audit of the FBI’s use of authorities given under Section 215 of the Patriot Act, which allows the FBI to seek secret court orders to obtain "tangible things," including books, records, or any other type of item from any business, organization or entity for counterterrorism and counter-intelligence investigations. The Section 215 audit was overshadowed last year by a companion audit of the FBI’s use of its National Security Letter authority, which was also expanded under the Patriot Act.
The sheer volume of NSLs issued, roughly 200,000 NSL requests between 2003 and 2006 as compared to 36 pure Section 215 applications over the same period, combined with the multitude of problems the IG reported with the FBI’s use of NSLs, led many to overlook the Section 215 report. The new NSL audit raises many of the same concerns with the FBI’s continuing failure to properly manage this overbroad NSL power, but if you want a sense of the utter disregard the FBI leadership feels for our constitutional rights I recommend you take a peek at pages 65 through 74 of the new Section 215 audit (which are heavily redacted).
It turns out that the FISA Court was not the first to raise First Amendment concerns over this investigation to FBI officials. Lawyers with the Department of Justice Office of Intelligence Policy Review (OIPR) first raised the First Amendment issue when the FBI sent the Section 215 application for their review. The OIPR is supposed to have oversight over FBI intelligence investigations, but OIPR officials quoted in the IG report said the OIPR "had not been able to fully serve such an oversight role" and that they were often bullied by FBI agents:
In addition, the former Acting Counsel for Intelligence Policy stated that there is a history of significant pushback from the FBI when OIPR questions agents about the assertions included in FISA applications. The OIPR attorney assigned to Section 215 requests also told us that she routinely accepts the FBI’s assertions regarding the underlying investigations as fact and that the FBI would respond poorly if she questioned their assertions.
Recognizing how the FBI subverts internal controls is important because after the last IG audit the FBI and DoJ issued new guidelines and policies they claim will fix the problems with the FBI’s use of its Patriot Act powers. But you can’t fix problems you don’t admit you have.
When the FISA Court raised First Amendment concerns about an FBI investigation the FBI General Counsel decided to continue the investigation anyway, using methods that had less oversight. When asked whether the court’s concern caused her to review the underlying investigation for compliance with internal guidelines, the General Counsel said it did not because "she disagreed with the court’s ruling and nothing in the court’s ruling altered her belief that the investigation was appropriate." A former OIPR Counsel for Intelligence Policy argued that while investigations based on association with subjects of other national security investigations were "weak," they were "not necessarily illegitimate." And this investigation based on simple association was apparently not an aberration. The FBI General Counsel said the FBI would have to close "numerous investigations" if they could not open cases against individuals who have contact with other subjects of FBI investigations.
If the FBI feels it can overrule the FISA court, and the DoJ feels that it is "not illegitimate" to open investigations based on protected First Amendment activities, none of our rights will be protected. It is clearly time for Congress to act.