The FBI and NSLs 6: Definitely Don’t Trust Mueller

If you needed any more proof that Bob Mueller’s FBI can’t be trusted from the head down, here it is:

NOW WE KNOW why the government failed to stop 9/11. Embattled FBI Director Robert Mueller told a Senate committee last week that what prevented his agency from halting the attack was its inability to issue warrant-less search orders with the profligacy of a parking ticket officer.

If only it had the currently available unfettered “national security letter” authority to run through personal information data bases without judicial oversight, Mueller suggested, the FBI would have found 9/11 terrorist Khalid al Midhar and through him the other Al Qaeda conspirators. Really?

Midhar was one of the 9/11 terrorists. When he entered the United States, the CIA knew it and knew he was an Al Qaeda terrorist. An FBI agent at the CIA knew he was in the country. Months later FBI headquarters was told, but the agents working the case never told the FBI leadership or the White House.

So what does Mueller want us to believe now, that when the CIA finally told the FBI that Midhar was in the United States that it was the bureau’s difficulty in getting a warrant on a known Al Qaeda terrorist that was responsible for its failure to find him?

Pretty thin, ay? Mueller seems to be in BushPuppet mode, dutifully attempting to shore up the Emperor’s anti-democratic, authoritarian dicta with bogus claims and typical Rove Administration reliance on 9/11 to explain and excuse everything.

Not going to work this time, boys and girls. We won’t be fooled again.

The FBI and NSLs 5: Don’t Trust Mueller (Updated)

FBI Dir Robert Mueller wants the Congress to let him keep the power given him by the PATRIOT Act to use NSLs despite his total failure to supervise that use by his agents.

Mueller expressed concern about any modifications to the USA Patriot Act that might “handcuff us” in terrorism investigations, but he also said that the FBI would be willing to jettison its authority to use national security letters if it is granted the power to use administrative subpoenas to collect the same information.

This is a very bad idea. During his tenure, Mueller has made any number of promises to Congress – including a promise made during the hearings on re-authorization of the Act that he would not allow abuse of the power he now admits his agency abused – and somebody’s going to have to point me toward a single one of them he’s actually kept because I can’t find it. Dianne Feinstein rightly complained that there’s no excuse for the lack of supervision Mueller now takes responsibility for.

“This was a very controversial addition to the Patriot Act,” Sen. Dianne Feinstein (D-Calif.) said about the FBI’s authority to use the national security letters. “There were many members that had deep concerns about this. The language was negotiated. We were very specifically trying to put in checks and balances. And then it appears they all just melted into oblivion with sloppy administration.”

Again, Sen Feinstein, it was NOT “sloppy”. It was deliberate.

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.

The FBI and NSLs 3: How High Does it Go?

Yesterday I asked a couple of simple and, I thought, fairly obvious questions:

Were there any lawyers among the dozen members of the elite CAU [Communications Analysis Unit – MA] responsible for the NSLs? If so, why didn’t they respond to the concerns of the Bureau’s legal staff? And even if there weren’t, how could a slew of “counter-terrorism experts” fail to notice when asking for emergency powers that there was no actual terrorist emergency?

To answer the second question, it turns out there were and they didn’t. In fact, Bassem Youssef, a CT expert with a covert background and several successes to his credit, was in charge of the CAU at the time and says he not only noticed, he “raised concerns with superiors”.

Stephen M. Kohn, the lawyer for Mr. Youssef, said his client told his superiors that the bureau had frequently failed to document an urgent national security need — proving “exigent circumstances,” in the bureau’s language — when obtaining personal information without a court order through the use of “national security letters.”

Mr. Youssef said his superiors had initially minimized the scope of the problem and the likely violation of laws intended to protect privacy, Mr. Kohn said.

“He identified the problems in 2005, shortly after he became unit chief,” Mr. Kohn said. “As in other matters, he was met with apathy and resistance.”

***

Mr. Kohn said that Mr. Youssef had had a long familiarity with national security letters from earlier work on counterterrorism investigations, and that he began reviewing recent letters and spotting legal deficiencies almost immediately.

“It was the same issue that was in the inspector general’s report,” Mr. Kohn said Sunday. “They didn’t have the proper legal justifications in writing to back up their searches.”

If Mr Youssef was in charge of the CAU and most of the disputed NSLs were submitted by the CAU, why didn’t he simply stop them? Why didn’t he call in the agents who were improperly filing and sending the NSLs and order them to correct the procedure or cease using them?

To answer those questions, we have to know the answers to two other key questions:

1. Who were the “superiors” in question? Mueller? Or does it go higher?
2. Why did Youssef feel it necessary to express his “concerns” about the NSLs to them? It was his department, he was in charge, why not just end the abuse?

The FBI and NSLs 2: The “Accident” Excuse Unravels (Updated)

As predicted, the DoJ IG’s conclusion that the FBI’s illegal use of NSLs did not constitute a crime is being called into question, and by a Republican no less.

Referring to the exigent circumstance letters, Sen. Charles E. Grassley (R-Iowa) wrote in a letter Friday to Justice Department Inspector General Glenn A. Fine: “It is . . . difficult to imagine why there should not have been swift and severe consequences for anyone who knowingly signed . . . a letter containing false statements. Anyone at the FBI who knew about that kind of wrongdoing had an obligation to put a stop to it and report it immediately.”

Yes, of course they did, but report it to who? Alberto?

Charlie’s sudden concern for the possibly illegal use of the NSLs after 6 years of sitting obediently on his ass and watching the Bush Administration and the Justice Dept play fast-and-loose with the Constitution arose yesterday when it came to light that the FBI’s own legal staff were expressing doubts about the way the NSLs were being handled as early as 2004.

The FBI and NSLs: Not “Accidental”

The DoJ IG’s report has ignited a sort of firestorm both in the mainstream press and in Congress. Although it hasn’t yet reached the stage of the Justice 8 Purge, the FBI’s “misuse” of NSLs has excited widespread condemnation, an abject apology from FBI Director Robert Mueller, and a Congressional investigation. The issues, however, as Glenn Greenwald points out in this post, are just as serious, maybe more so.

In those isolated cases where we learn about what the administration has been doing in secret, or where Congress pretends to demand information, the administration refuses to provide any actual information (see, e.g., the NSA scandal ). Instead, they simply issue boilerplate assurances that the law is being complied with, that the powers are being exercised responsibly and properly, that there is no abuse, and that they have created ample “safeguards” (always within the Executive Branch) to ensure that no abuse occurs. Whatever isolated instances of abuse or impropriety end up being leaked are dismissed away as pure aberrations, the work of bad apples, and they profess how gravely concerned they are about such abuses and assure us that they are working diligently to ensure they never occur again.

And that is always the end of the story. No claims by the Bush administration have been meaningfully investigated because the authoritarian sickness that has governed our country has meant that there is blind faith in the representations made by the President, with no corroboration or investigation needed.

In the case of the NSLs, for instance, the DOJ — after the Post article on NSLs was published — repeatedly insisted to Congress when it was debating re-authorization of the Patriot Act in November, 2005, that the claims in the Post story were false. As but one example, the DOJ sent a letter, from Assistant Attorney General William Moschella to House Judiciary Committee Chair Jim Sensenbrenner, accusing the Post of presenting a “materially misleading portrayal” of the FBI’s use of national security letters (I am attempting to find that original Moschella letter; if you find it online, please leave the link in comments or by e-mail).

Obviously (as even the DOJ is now being forced to acknowledge), the attacks on the Post article by the DOJ were simply false. If anything, the Post article under-stated the problems with the NSLs. The DOJ simply gave false assurances to Congress that there were no problems with the FBI’s use of NSLs and assured Congress that all regulations and laws were being complied with. Those claims were lies, designed to steamroll over concerns about the NSLs and induce the Congress to re-authorize the Patriot Act, which it did.

US Asst AG Richard Hertling has now sent Sens Patrick Leahy and Arlen Specter a letter – get this – retracting his previous letters of assurance that all was well. Glenn quotes from the letter and then translates what it means:

In other words: all of those assurances we gave you in order to convince you that we were using NSLs in strict accordance with the law were false. Now that the IG Report proves that what we told you is false, we are retracting what we said, and when we get around to it, we will also correct the false testimony we gave at Congressional hearings and the false assurances we gave you in secret, classified meetings — all of which successfully convinced you to re-authorize the Patriot Act.

Greenwald is properly sarcastic as he dismisses the DOJ’s incredible response, a Lost in Space mea culpa in the tone of a high school sophomore apologizing to a teacher for copying the wrong citation in his term paper – “Too bad but it’s no big fucking deal, chief, so chill out. At least I did the damn thing.”

But there’s a problem just as big that Glenn (so far) only hints at.

Federal Bureau of Intimidation

There’s nothing new about this administration (and its cronies at the state level) using institutions of state power for political intimidation, but I have the impression that such actions have been carried out more blatently of late. Recent articles point out that:

(1) Potential visitors to this summer’s political conventions were visited by FBI agents and asked three questions: “…were demonstrators planning violence or other disruptions, did they know anyone who was, and did they realize it was a crime to withhold such information” (emphasis added).

(2) Porter Goss, Bush’s nominee to head the CIA (which Stansfield Turner described as “the worst appointment that’s ever been made”), introduced legislation on June 16 that would allow the president to order the CIA to monitor and arrest American citizens within the United States.

“This language on its face would have allowed President Nixon to authorize the CIA to bug the Democratic National Committee headquarters,” Jeffrey H. Smith, who served as general counsel of the CIA between 1995 and 1996, told NEWSWEEK. “I can’t imagine what Porter had in mind.”

Somehow I don’t share Smith’s difficulty imagining that.

(On a related topic, check out Atrios’ very interesting comment.)

(3) Jeb Bush’s Florida cops are intimidating elderly black activists who help friends and neighbors get to the polls. This short article will make your blood boil. Take two minutes out of your day and read the whole thing.

A New FBI Whistle-Blower

From today’s NYT:

WASHINGTON, Aug. 1 – As a veteran agent chasing home-grown terrorist suspects for the Federal Bureau of Investigation, Mike German always had a knack for worming his way into places few other agents could go.In the early 1990’s, he infiltrated a group of white supremacist skinheads plotting to blow up a black church in Los Angeles. A few years later, he joined a militia in Washington State that talked of attacking government buildings. Known to his fellow militia members as Rock, he tricked them into handcuffing themselves in a supposed training exercise so the authorities could arrest them.

So in early 2002, when Mr. German got word that a group of Americans might be plotting support for an overseas Islamic terrorist group, he proposed to his bosses what he thought was an obvious plan: go undercover and infiltrate the group.

But Mr. German says F.B.I. officials sat on his request, botched the investigation, falsified documents to discredit their own sources, then froze him out and made him a “pariah.” He left the bureau in mid-June after 16 years and is now going public for the first time – the latest in a string of F.B.I. whistle-blowers who claim they were retaliated against after voicing concerns about how management problems had impeded terrorism investigations since the Sept. 11 attacks.

“What’s so frustrating for me,” Mr. German said in an interview, a copy of the Sept. 11 commission report at his side, “is that what I hear the F.B.I. saying every day on TV when I get home, about how it’s remaking itself to fight terrorism, is not the reality of what I saw every day in the field.”

More or less par for the Bush Admin course: we don’t do it, we just say we did it. Are these guys arrested adolescents or what?

Edmonds Charges Substantiated

According to the NYT, a secret DoJ investigation has concluded that Sybel Edmonds was, indeed, fired for blowing the whistle on sloppy FBI oversight of its translators.

WASHINGTON, July 28 – A classified Justice Department investigation has concluded that a former F.B.I. translator at the center of a growing controversy was dismissed in part because she accused the bureau of ineptitude, and it found that the F.B.I. did not aggressively investigate her claims of espionage against a co-worker.The Justice Department’s inspector general concluded that the allegations by the translator, Sibel Edmonds, “were at least a contributing factor in why the F.B.I. terminated her services,” and the F.B.I. is considering disciplinary action against some employees as a result, Robert S. Mueller III, director of the bureau, said in a letter last week to lawmakers. A copy of the letter was obtained by The New York Times.

---

Given the tight secrecy surrounding the case, “one could argue that Mueller himself disclosed classified material” by quoting from a still-secret Justice Department report, said one congressional official who spoke on condition of anonymity.In his letter, Mr. Mueller said he was pleased that the office of the inspector general “had not concluded that the F.B.I. retaliated against Ms. Edmonds when it terminated her services on April 2, 2002.” At the same time, he said, “I was concerned by the O.I.G.’s conclusion that Ms. Edmonds’ allegations ‘were at least a contributing factor in why the F.B.I. terminated her services.’ ”

He said the F.B.I. would work with the inspector general to determine whether any employees should be disciplined as a result. And he emphasized that he wanted to encourage all F.B.I. employees to “raise good faith concerns about mismanagement or misconduct” without fear of reprisals or intimidation.

The letter did not say what other factors, if any, beyond Ms. Edmonds’s accusations may have played a part in the decision to dismiss her. In the past, federal officials have suggested that her allegations had nothing to do with her dismissal, pointing instead to what they described as her “disruptive” presence in the field office.

The inspector general “also criticized the F.B.I.’s failure to adequately pursue Ms. Edmonds’s allegations of espionage as they related to one of her colleagues,” Mr. Mueller said in his letter.

The J Edgar Hoover Legacy Marches On: Silence the critics, then fire them. The next step is to trash their reputations.

So the Plame investigation is coming to a head and now the Edmonds investigation is about to generate some steam. Meanwhile, the investigation of Halliburton continues, Kenny-boy’s trial is about to begin (they must have picked the jurors by now), and questions are circulating about Cheney’s actual relationship with his old company. This is sure going to be a fun summer for the Bush Team, and the fall should be full of surprises.

Edmonds Suit Dismissed

Sibel Edmonds, the translator who was fired by the FBI after criticizing its nepotism and incompetence, brought suit to get her job back. It was dismissed without a hearing. Dig the reason:

[A] federal judge tossed out her case, not on its merits but on the grounds that hearing her claims might expose government secrets and damage national security. That keeps under wraps the inspector general’s report that investigated Edmonds’ allegations.U.S. District Judge Reggie Walton, a Bush appointee, said he couldn’t explain himself further because the explanation itself might expose sensitive secrets. He did say that he’d accepted Attorney General John Ashcroft’s explanation that the suit could “expose intelligence-gathering methods and disrupt diplomatic relations with foreign governments.” The Boston Globe reported that Ashcroft ordered material in the case retroactively classified.

Edmonds must feel a bit like Alice at the tea party, where justice is not being served, and where a secret is a secret but why it’s a secret or who says it’s a secret is a secret, and we can’t tell you why because it’s a secret.

Welcome to your US Govt in action–Down the Rabbit Hole, with Dick Cheney as the Queen of Hearts (‘Off with their fucking heads!’), W as The Mad Hatter, and featuring John ‘Dormouse’ Ashcroft.

What a crew.

Arrested for Videotaping a Building

A report in the Seattle Post-Intelligencer tells the story of a Nepalese man who was thrown into prison under the PATRIOT Act for accidentally videotaping the building in NYC where the FBI has its HQ.

NEW YORK — It took no more than a week for James P. Wynne, a veteran FBI investigator, to confirm the harmless truth that only now, more than two years later, he is ready to talk about. The small foreign man he helped arrest for videotaping outside a tall office building in Queens on Oct. 25, 2001, was no terrorist.Yet Purna Raj Bajracharya was swallowed up in the government’s new maximum-security system of secret detention and secret hearings for three months, and his only friend was Wynne, the same FBI agent who had helped decide to put him there.

Bajracharya, 47, was a Buddhist from Nepal planning to return there after five years of odd jobs at places such as a Queens pizzeria and a Manhattan flower shop. He was videotaping New York street scenes to take back to his wife and sons in Katmandu. And he had no clue that the tall building in his viewfinder happened to include an office of the FBI.

When Wynne filed his FBI report a few days later, the Nepalese man, who spoke almost no English, had been placed in solitary confinement at a federal detention center in Brooklyn just for videotaping.

The article gives a pretty good picture of how Ashcroft’s JD is using–or mis-using–its new powers and how ‘byzantine’ the system has become. And what do they use to excuse this malfeasance? You guessed it:

Mark Corallo, a spokesman for the Justice Department, said that although he was unfamiliar with the case, the system of secrecy that Bajracharya encountered is lawful and necessary. “The idea that someone who has violated our immigration laws may be of interest on a national security level as well is an unfortunate reality, post- 9/11,” he said.

Bajracharya was jailed for three months ‘in a 6-by-9-foot cell kept lighted 24 hours a day.’ Welcome to neo-America, Baj.

An American Police State In The Making

OK, gut-reaction time. I hope I’m wrong about this:

The White House is weighing whether to pre-empt the Sept. 11 commission’s final report this summer by embracing a proposal to create a powerful new post of director of national intelligence, administration officials said on Thursday.Under the proposal, management of the government’s 15 intelligence agencies, and control of their budgets, would be put under the direction of a single person. That authority is now scattered across a number of departments and agencies.

This plan was developed some time ago by Brent Scowcroft, Poppy’s National Security Advisor (who, while I had many differences with him, at least knew what the phrase “national security” meant) and was ignored by the WH until Karl could find a political use for it. Now, in an attempt to undercut the damage the Commission’s report will apparently do to Junior’s image as Mr Terrorist-Fighter, the BA is going to drag this thing out of the closet and propose it for real.

There are two problems with this approach no matter whose it is. Let’s take the lesser one first: it probably won’t work. Nixon tried the same thing when he reorganized the various agencies or sections of agencies responsible for policing the trade in illegal drugs, folding the BNDD (Bureau of Narcotics and Dangerous Drugs), part of ATF (Alcohol Tobacco & Firearms), and part of the FBI into the DEA (Drug Enforcement Agency). The result was, at best, only a marginal improvement over what came before it. Intelligence didn’t get any better, of course, just because they were sharing it, and the cowboy mentality of the new DEA soon had SWAT teams breaking down the doors of elderly couples because DEA “sources” had given their handlers the wrong address (or the wrong town, state, country). The old turf wars were replaced instantly by new turf wars (that exist to this day, albeit in less virulent form than in the early days), co-ordination with street cops–the fundamental intelligence gatherers in the drug war system–was significantly worsened because the new power of the DEA required them to take control of investigations, which street cops resented (they still call the DEA “Glory Hounds”–and worse (“The Drug Enablement Agency” is one I’ve heard)–and Customs, furious that its budget had been cut, developed layers of new management levels to insulate itself from DEA interference.

The IC itself tried to co-ordinate the sharing of international intelligence by creating “intelligence steering committees” like the DID (Defense Intelligence Directorate) and the SISG (State Intelligence Steering Group) in which the heads or deputy heads of the IC–CIA, NSA, NI (Naval Intelligence), G2 (Army Intelligence), DIA (Defense Intelligence Agency), SDI (State Dept Intelligence) and so on (there are 15 of them)–would meet regularly to share information and develop strategies. That hasn’t worked all that well, either. Turf battles remain as Directors jealously guard any information that they either want the credit for developing or don’t trust the other agencies to handle, and most meetings turn out to be a lot like playing 7-card stud, with everyone showing a few goodies but keeping their Aces firmly in the hole–and playing them close to the vest.

The worst part of re-organizations like this, though, is that they inevitably give the new agency a whole lot more power to invade privacy and run roughshod over inconvenient laws than they ever had before. The DEA is allowed to do things no police agency before it was empowered to do, and that brings us to the second and far more serious difficulty with this proposal.

Giving a single authority the right to collect, examine and act on whatever it considers to be information “vital to the nation’s security” comes periously close to the creation of a KGB-style secret police. At some point, I want to write a post devoted to an explanation of exactly why our intelligence-gathering capabilities are so poor (the way profiling is used is at the top of the list, followed closely by an unhealthy reliance on technology), but for now suffice it to say that no police or intelligence agency on the planet is ever satisfied; no amount of information is “enough”–there’s always more you want, more you claim you need, and the requirements have no inherent limits.

Last December, John McKay at archy (who has also just redesigned his site, and it looks terrific), reported on a Chicago Sun-Times article (no longer available) about a new FBI counter-terrorism initiative:

The FBI is warning police nationwide to be alert for people carrying almanacs, cautioning that the popular reference books covering everything from abbreviations to weather trends could be used for terrorist planning.[…]

“The practice of researching potential targets is consistent with known methods of al-Qaida and other terrorist organizations that seek to maximize the likelihood of operational success through careful planning,” the FBI wrote.

This is the sort of KGB-like insanity we can expect from an agency with new powers and the rock-ribbed belief that everything they can find out about somebody should be theirs for the taking. (John asked at the time: “I wonder if you can use an almanac to find the White House?”) I’d worry a lot less about this were it not for the new PATRIOT Acts, which are tailor-made to allow a police state to develop in the name of making us “safer”.

The creation of an intelligence agency that destroys the boundaries between international and domestic intelligence-gathering is dangerous enough, but combined with laws that dispense with little things like warrants and probable cause, you’ve got an ideal environment for the radical growth of a police state.