FBI Intelligence Violations
posted by Daniel Solove
The Washington Post is reporting on documents obtained by Marcia Hofmann at the Electronic Privacy Information Center that demonstrate a number of FBI intelligence surveillance violations:
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.
These FBI investigations were done pursuant to the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. §§ 1801-11, a law passed in 1978 to regulate foreign intelligence investigations. FISA creates a very secretive regime. A secret court hears applications for orders, and all proceedings remain secret. Generally, the only reported information about FISA consists of annual reports to Congress that just show the number of FISA orders applied for and the number granted. Nearly all are granted.
While the need for secrecy is important in such investigations, is there too much secrecy? In one article, I observed:
The problem with FISA is its secrecy. Of course, monitoring foreign agents on United States soil is difficult without secrecy. But as William Banks and M.E. Bowman observe, “[t]he secrecy that attends FISC proceedings, and the limitations imposed on judicial review of FISA surveillance, may insulate unconstitutional surveillance from any effective sanction.” Under FISA, the entire proceedings are held ex parte, with nobody permitted to argue the opposing side. Only the government has the opportunity to appeal. The government thus gets two bites at the apple, and the courts only hear the government’s side.
October 24, 2005 at 12:28 am
Posted in: Privacy, Privacy (Law Enforcement), Privacy (National Security)
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Responses (2)
Elyas Bakhtiari - October 24, 2005 at 12:33 pm
Be careful about posting that seal on your website, it can get you in trouble.
Joe - December 12, 2005 at 3:15 am
What do you suggest? Should we notify a suspected terrorist or foreign intelligence officer of our suspicions and bring him into the FISA court and tell him we would like to tap his phone or e-mail? Wake up. If you or a normal law abiding citizen you have nothing to worry about. You should be more concerned about what private firms are collecting on you as you surf the internet or purchase merchandise with your credit card.
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