Wednesday, January 20, 2010

FBI used phony "terrorism emergencies" to illegally collect individual call records

Gee, you starting to see the same pattern that I am? With each new "privacy revolting" revelation to make it public has come the subsequent validation of many of my darkest fears regarding how the government and law enforcement would abuse the unprecedented powers granted them in reaction to the September 11th attack. We should all be giving special thanks for the Freedom of Information Act and the work of privacy rights and civil liberties groups!

The latest Constitution smashing headlines have an all too familiar ring: The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply by persuading phone companies to provide records (remember Retroactive Telecom Immunity?).

E-mails obtained by The Washington Post have detailed how counter terrorism officials inside FBI headquarters did not follow their own procedures that were put in place to protect civil liberties. The stream of urgent requests for phone records also overwhelmed the FBI communications analysis unit with work that ultimately was not connected to imminent threats - another disturbing and re-occurring theme I want touch on more today.

But before I go deeper into this story, lets take a step back and start connecting some dots. An undeniable pattern has emerged over the past few years that fundamentally challenges the entire premise of a "war on terror" and exposes just how ineffectual and counterproductive these policies have actually been. The reoccurring theme goes like this: Powerful interests - inside and outside of government - sell fear as way to justify the steady assault on our civil liberties, increased spending on military defense, and the growth of the surveillance state.

But here's another important piece of the puzzle that keeps popping up: more often than not the government HASN'T USED these expanded powers to actually fight terrorism (instead often to thwart anti-war protesters, bust small time drug dealers, monitor journalists, and who knows what else?) - as was promised. This begs a larger question, "Who has been targeted and why?"

This increasingly influential "Fear-Industrial-Complex" (i.e. Department of Defense, corporate media, talk radio, security technologies industry, Congress, the White House, “the intelligence community”, pundits, weapons defense contractors, etc.) almost serve as a kind of de facto terror hype machine that is far more interested in maximizing profit and power than reducing any threat posed by terrorism. This fact belies the false choice we are constantly offered pitting "security against civil liberties". Sadly, this fundamentally dishonest "frame" is nearly universally accepted as fact and parroted by the corporate media, big business, and the government.

In other words, do these increasingly intrusive and even unconstitutional anti-terrorism measures actually make us any safer (or less so)? And if so, is it worth the price? And, how can any free society benefit from, or reconcile, such policies as illegal search and seizures (including of laptops), warrantless wiretapping, the tracking of GPS devices in peoples cell phones, the utilization of "whole-body-imaging" (digital strip search) scanners in airports, the evisceration of Habeus Corpus, Rendition, Military Tribunals, and the Patriot Act?

Another question worth pondering: Can we really "defeat" terrorism by embracing a less free and more fearful society (two primary goals of terrorists)? Similarly, don't many of these government abuses constitute a form of terrorism in and of itself? And finally, a growing amount of evidence now suggests that we are gathering TOO MUCH information, and our expanding surveillance state is making us LESS safe, not more.

As Constitutional Scholar Glenn Greenwald notes,The problem is never that the U.S. Government lacks sufficient power to engage in surveillance, interceptions, intelligence-gathering and the like. Long before 9/11 -- from the Cold War -- we have vested extraordinarily broad surveillance powers in the U.S. Government to the point that we have turned ourselves into a National Security and Surveillance State.

Terrorist attacks do not happen because there are too many restrictions on the government's ability to eavesdrop and intercept communications, or because there are too many safeguards and checks. If anything, the opposite is true: the excesses of the Surveillance State -- and the steady abolition of oversights and limits -- have made detection of plots far less likely. Despite that, we have an insatiable appetite -- especially when we're frightened anew -- to vest more and more unrestricted spying and other powers in our Government, which -- like all governments -- is more than happy to accept it.”

It is this irrational fear of terrorism that seems to be at the root of our nation's current "civil liberties and privacy" crisis. It is hard to imagine that without this fear, we would so easily give up our rights, support wars on countries that did nothing to us, and accept wasting precious resources on ineffective and burdensome security systems that diminish our quality of life (think of airports)?

Remember: Your chances of getting hit by lightning in one year is 500,000 to 1 while the odds you'll be killed by a terrorist on a plane over 10 years is 10 million to 1.

If you count the Ft. Hoot shooting as a terrorist attack, 16 people have died in the United States as result of terrorism in 2009. The other three deaths include the Little Rock military recruiting office shooting, the Holocaust Museum shooting, and Dr. George Tiller's assassination, the last two coming at the hands of right-wing extremists. Now let's compare that to the 45,000 Americans that died because they didn't have health insurance and 600 that died from salmonella poisoning.

If we are truly trying to reduce the threat of terrorism there are DEMONSTRABLY more effective ways than those currently being pursued. A few alternative tactics to consider: stop bombing and occupying Muslim nations, arming their enemies, torturing and indefinitely jailing their people, and propping up many of their countries most ruthless dictators.

As I wrote in "The Politics of Fear and Whole-Body-Imaging": No one is denying that terrorism is a threat or seeking to justify their crimes, but how does creating more of them make us safer? And instead of spending one more minute listening to the grumblings of a war criminal like Dick Cheney, we would do well to heed the words of Martin Luther King Jr. instead: "We all have to be concerned about terrorism, but you will never end terrorism by terrorizing others."

I still think security expert Bruce Schneier sums up the false choice best:

"If you set up the false dichotomy, of course people will choose security over privacy -- especially if you scare them first. But it's still a false dichotomy. There is no security without privacy. And liberty requires both security and privacy. The famous quote attributed to Benjamin Franklin reads: "Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety." It's also true that those who would give up privacy for security are likely to end up with neither.”

With all that said, let's get to the Washington Post article on the FBI using phony "terrorism emergencies" to justify the illegal collection of Americans phone records. John Solomon and Carrie Johnson report:

Documents show that senior FBI managers up to the assistant director level approved the procedures for emergency requests of phone records and that headquarters officials often made the requests, which persisted for two years after bureau lawyers raised concerns and an FBI official began pressing for changes.

"We have to make sure we are not taking advantage of this system, and that we are following the letter of the law without jeopardizing national security," FBI lawyer Patrice Kopistansky wrote in one of a series of early 2005 e-mails asking superiors to address the problem.

The FBI acknowledged in 2007 that one unit in the agency had improperly gathered some phone records, and a Justice Department audit at the time cited 22 inappropriate requests to phone companies for searches and hundreds of questionable requests. But the latest revelations show that the improper requests were much more numerous under the procedures approved by the top level of the FBI.


The USA Patriot Act expanded the use of national security letters by letting lower-level officials outside Washington approve them and allowing them in wider circumstances. But the letters still required the FBI to link a request to an open terrorism case before records could be sought.

Shortly after the Patriot Act was passed in October 2001, FBI senior managers devised their own system for gathering records in terrorism emergencies. A new device called an "exigent circumstances letter" was authorized. It allowed a supervisor to declare an emergency and get the records, then issue a national security letter after the fact.


The 2003 memo stated that the new method "has the potential of generating an enormous amount of data in short order, much of which may not actually be related to the terrorism activity under investigation." Within a few years, hundreds of emergency requests were completed and a few thousand phone records gathered. But many lacked the follow-up: the required national security letters. Two individuals began raising concerns.


The e-mails show that they conceived the idea to open half a dozen "generic" or "broad" preliminary investigative (PI) case files to which all unauthorized emergency requests could be charged so a national security letter could be issued after the fact.

The generic files were to cover such broad topics as "threats against transportation facilities," "threats against individuals" and "threats against special events," the e-mails show. Eventually, FBI officials shifted to a second strategy of crafting a "blanket" national security letter to authorize all past searches that had not been covered by open cases.


Among those whose phone records were searched improperly were journalists for The Washington Post and the New York Times, according to interviews with government officials. The searches became public when Mueller, the FBI director, contacted top editors at the two newspapers in August 2008 and apologized for the breach of reporters' phone records. The reporters were Ellen Nakashima of The Post, who had been based in Jakarta, Indonesia, and Raymond Bonner and Jane Perlez of the Times, who had also been working in Jakarta.

Click here to read the article in its entirety.

What immediately jumps out at me in this article is that last paragraph I posted: JOURNALISTS PHONE RECORDS WERE SEARCHED! Monitoring and intimidating the press strikes at the heart of what it means to be a functional democracy. I hope we learn more about how often this was used and for what reasons and on what reporters.

What also has been made abundantly clear these past few years is that once you allow the government to snoop unchecked in the name of national security, that' s exactly what they're going to do.

As Adam Sewer of the American Prospect notes: It's no secret that the FBI's use of National Security Letters - a surveillance tool that allows the FBI to gather reams of information on Americans from third-party entities (like your bank) without a warrant or without suspecting you of a crime - have resulted in widespread abuses.

All that the FBI needs to demand your private information from a third-party entity is an assertion that such information is "relevant" to a national security investigation -- and the NSLs come with an accompanying gag order that's almost impossible to challenge in court.

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