The FBI and NSLs 4: Not Operating in a Vacuum


The FBI is still pretending that their use of National Security Letters (NSLs) to obtain information unconnected in any way with national security was a matter of sloppy paperwork and/or “haste”, excuses that don’t even begin to explain either the high numbers of “mistakes” or the constant lies.

FBI agents repeatedly provided inaccurate information to win secret court approval of surveillance warrants in terrorism and espionage cases, prompting officials to tighten controls on the way the bureau uses that powerful anti-terrorism tool, according to Justice Department and FBI officials.

The errors were pervasive enough that the chief judge of the Foreign Intelligence Surveillance Court, Colleen Kollar-Kotelly, wrote the Justice Department in December 2005 to complain. She raised the possibility of requiring counterterrorism agents to swear in her courtroom that the information they were providing was accurate, a procedure that could have slowed such investigations drastically.

Forced to acknowledge the extent of the abuses (as many as 10% of the warrants contained inaccuracies, and possibly a lot more – exact numbers aren’t yet available although IG Fine estimates that as many as 3000 violations may have occurred over the last 3 years), the FBI’s management has moved from minimizing the problem to blaming poor supervision.

In the use of both national security letters and the FISA warrant applications, officials acknowledged that the problems resulted from agents’ haste or sloppiness — or both — and that there was inadequate supervision.”We’ve oftentimes been better at setting the rules than we have been at establishing the internal controls and audits necessary to enforce them,” FBI Assistant Director John Miller said.

But they didn’t “set the rules”, that’s the whole point. What we have here is a process that ignored the rules to get what it wanted. The very same “mistakes” were made on surveillance warrants as were made on NSLs, so the argument that the NSLs got screwed up because agents weren’t used to using them is bullshit.

And what can you say about the idea that after 50 years FBI agents still don’t know how to fill out a surveillance request correctly without supervision?

As disturbing as the lies and weak excuses are, what’s even more disturbing are the way and the reasons they were used. Far from targeting suspicious individuals or groups, the FBI were using the warrants and NSLs for wide-ranging fishing expeditions in major consumer databases.

They sent the secret requests to three companies — AT&T, Verizon and a third firm whose identity could not be learned. Since the 2001 terrorist attacks, the FBI has been paying the companies’ cost of supplying such records almost instantaneously in a form that its agents can readily examine, according to the report and the senior FBI official.

They effectively made private corporations surrogate investigators on the basis of mere letters in order to comb through the phone companies’ files looking for…what? They had no idea.

And most disturbing of all was the indication that the FBI wasn’t the only govt agency using the NSLs that way. It would be, as I’ve pointed out before, inconceivable that other law enforcement agencies, handed a tool like this, would use it properly or not at all. The assumption has to be that the NSA, the CIA, state and even local police depts have been doing likewise. A hint of the Federal govt’s probable widespread abuse comes from a report that the Treasury Dept, on the basis of one of Emperor George’s executive orders, has been using private businesses to “[check] the names of customers against a list of suspected terrorists”.

The Office of Foreign Asset Control’s list of “specially designated nationals” has long been used by banks and other financial institutions to block financial transactions of drug dealers and other criminals. But an executive order issued by President Bush after the Sept. 11, 2001, attacks has expanded the list and its consequences in unforeseen ways. Businesses have used it to screen applicants for home and car loans, apartments and even exercise equipment, according to interviews and a report by the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area to be issued today.

“The way in which the list is being used goes far beyond contexts in which it has a link to national security,” said Shirin Sinnar, the report’s author. “The government is effectively conscripting private businesses into the war on terrorism but doing so without making sure that businesses don’t trample on individual rights.”

The lawyers’ committee has documented at least a dozen cases in which U.S. customers have had transactions denied or delayed because their names were a partial match with a name on the list, which runs more than 250 pages and includes 3,300 groups and individuals. No more than a handful of people on the list, available online, are U.S. citizens.

This is but one step away from a requirement that citizens turn each other in to the govt police if they suspect a funny name may be hiding a potential terrorist. And you can’t blame the businesses for complying – they can go to jail if they don’t.

Yet anyone who does business with a person or group on the list risks penalties of up to $10 million and 10 to 30 years in prison, a powerful incentive for businesses to comply. The law’s scope is so broad and guidance so limited that some businesses would rather deny a transaction than risk criminal penalties, the report finds.

“The law is ridiculous,” said Tom Hudson, a lawyer in Hanover, Md., who advises car dealers to use the list to avoid penalties. “It prohibits anyone from doing business with anyone who’s on the list. It does not have a minimum dollar amount. . . . The local deli, if it sells a sandwich to someone whose name appears on the list, has violated the law.”

It’s clear that the FBI’s disinterest in the legal niceties was less an isolated episode of poor supervision than an extension of the whole Bush Admin’s attitude toward the law. Beyond the politicization of US Attorneys by the DoJ is a belief that the president has the power to make his govt and its actions legal even when they aren’t. Glenn Greenwald explains.

Glaringly, the DOJ simply refused to say that the administration would comply with the auditing and reporting requirements imposed by Congress when it re-authorized the NSL power. Instead, it emphasized that it need not do so. This is why the FBI violated the law and simply ignored the legal requirements governing NSL. The President declared that he has the power to break those laws, and the DOJ itself will not even answer the question directly as to whether it would comply with those laws, but instead offers all sorts of evasive answers which make clear that it believes it has the right to ignore those parts of the law.

The entire Bush Administration is shot through with Cheney’s doctrine of the “unitary executive” – that the president is the law, and that whatever he orders supersedes every other law, up to and including the Constitution itself.

This series of scandals has so far been buried beneath the furor over the fired prosecutors but as it unfolds over the next few months, what we’re going to find out is that Bush has used his imaginary powers as a “unitary executive” and the more real powers given him by the Pub Congress in the PATRIOT Act to bring a virtual police state into existence.

What the NSL abuse and the Treasury abuse show is that for some 3 years now, govt and law enforcement agencies have been involved in wholesale spying on American citizens without warrants or even plausible excuses.

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