Tuesday, February 2, 2010

Congress and the FBI's Illegal Collection of Phone Records

I want to follow up today on a recent post I wrote about revelations regarding the FBI illegally collecting 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 Immunity for the Telecoms...well, you're welcome you guys).

E-mails obtained by The Washington Post 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.

The reason I'm coming back to this story is because the Los Angeles Times actually editorialized on the subject today - in favor of privacy and transparency I might add.

Since the editorial is short, I'll post it here in full:

A recent report from the Justice Department's internal watchdog adds new and disturbing detail to its previous criticism of the FBI for cutting legal corners to obtain telephone records of U.S. citizens. As with past evidence of wrongdoing, the bureau insists that it has changed its ways, but senators rightly are pressing the Obama administration to close a possible loophole that could allow future abuses.

In the aftermath of 9/11, between 2002 and 2006, FBI agents obtained thousands of calling records without following legal procedures. Nor were all the violations examples of unintentionally failing to cross a bureaucratic "T" or dot a technical "I." Some agents clearly regarded legal constraints on their actions as nuisances to be ignored.

In its third report on the subject in three years, the Office of the Inspector General describes an "egregious breakdown" in oversight. It details how agents abused "exigent letters" -- a device for obtaining records in an emergency -- and informally elicited information from compliant employees of telephone companies, requesting records through e-mails or by scribbles on Post-it notes. Sometimes investigators engaged in "sneak peeks" of confidential records in which they looked over the employees' shoulders at their computer screens. The FBI also made inaccurate statements about its use of exigent letters in court filings.

According to Inspector General Glenn A. Fine, the relationship between the FBI and the telephone companies was so intimate that company representatives were stationed in FBI communications centers. Thus firms with access to sensitive personal information were essentially partners with a powerful law enforcement agency in violation of Americans' privacy rights. The FBI insists that errors were unintentional and that improperly obtained information will be sealed or destroyed. But that doesn't alter the offensiveness of skirting procedure.

The inspector general's latest report concludes with specific recommendations -- including additional training and greater scrutiny of contracts with telecommunications firms -- to ensure that both the bureau and the companies abide by privacy laws. It also recommends the FBI consider disciplinary action for those who ignored or violated the law. Atty. Gen. Eric H. Holder Jr. should implement these recommendations.

Finally, the report suggests that the Justice Department may be reserving the right of the FBI to inspect telephone records "without legal process or a qualifying emergency." Several senators have rightly asked Holder to share a Jan. 8 memo that apparently outlines such an exception. Holder should comply. Congress needs to make sure for itself that the FBI is not being encouraged to return to its old ways.

Rather than re-invent the wheel, I'll just point readers to my post on this topic two weeks ago...because I "went off" on the disturbing pattern of government and corporate abuses of the peoples' privacy and constitutional rights since 9/11.

Here are a couple clips that I think are worthy of republishing today:

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.


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?"


...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.


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)?

Read the rest here.

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