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FBI: Chronic Abuse of Power Goes Unchecked

Does the FBI break the law? According to a new report, all the time.

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Thursday, February 17, 2011

Last summer, there was another avalanche of classified documents detailing abuses by government officials, and it wasn't from WikiLeaks.

Compelled by a lawsuit, the government was recently forced to release files detailing abuses by the Federal Bureau of Investigation (FBI) in investigating cases between 2001 and 2008. According to the Electronic Frontier Foundation (EFF), the organization that requested the material under the Freedom of Information Act, the 2,500 heavily redacted files show evidence of chronic abuse at rates far surpassing any previous estimates or documentation.

In a recently released report analyzing the files, the EFF asserts that between 2003 and 2006 there is evidence that as many as 17,000 abuses may have occurred, "or an average of 4,250 serious intelligence violations per year."

From 2001 to 2008, the report states, the FBI "engaged in a number of flagrant legal violations," including "submitting false or inaccurate declarations to courts; using improper evidence to obtain federal grand jury subpoenas; [and] accessing password protected documents without a warrant."

The report divided the violations into various groups, the top three being violations, abuses and misuses of rules governing internal oversight of intelligence investigations; violations of the Bureau's National Security Letter authority (which allows the government to requisition information from private third parties, such as Internet providers and phone companies); and violations of "the Constitution, the Foreign Intelligence Surveillance Act, or other laws governing criminal investigations or intelligence-gathering activities."

Government protocol requires that when such potential or actual abuses are discovered internally, they must be investigated, and a report documenting the abuses needs to be filed with the Intelligence Oversight Board (IOB).

The board was instituted in 1976 by President Gerald Ford, in response to evidence of rampant violations in the FBI's investigations of cases, to advise him on the legality of the government's covert domestic and foreign investigations. The EFF requested IOB documentation of such abuses from between 2001 and 2008—the period when President George W. Bush began limiting the board's oversight and failed to appoint new members.

The EFF made the request in 2008, but when there was no response, they filed suit. The first files arrived last summer.

That the abuses are being documented at all may seem promising, but the report asserts that the mechanisms and people charged with overseeing and addressing these abuses appear to be, at best, ineffectual.

"...[O]n average, 2.5 years elapsed between a violation's occurrence and its eventual reporting to the IOB," the report noted. Further, which abuses are reported is clearly at the FBI's discretion, and in many instances cases were "only reported to the IOB when it determined the agency's ability to supervise the investigation had been 'substantially impaired,'" the report stated, quoting government documents.

The Bureau's willingness to break the law in order to uphold it appears to only be matched by the willingness of some companies to deliver their customers' private info to the feds.

Using a legal battering ram known as a National Security Letter (NSL), the FBI can secretly subpoena records from third parties without any judicial review. According to the EFF's report, the agency issued nearly 200,000 NSL requests between 2003 and 2006. In more than half the NSL violation reports reviewed by the report's authors, "the private entity receiving the NSL either provided more information than requested or turned over information without receiving a valid legal justification from the FBI. Companies were all too willing to comply with the FBI's requests, and—in many cases—the Bureau readily incorporated the over-produced information into its investigatory databases," the report found.

Rampant abuse by intelligence agencies was suspected by many civil liberty advocates during the Bush years; these findings are the first verified glimpse the public has had of the nature and extent of the violations. Perhaps more alarming, though, the report asserts, "there is little evidence that President Obama has taken significant measures to change past FBI practices. Two years into his term, the President has not publicly disclosed any appointments to the IOB, and his campaign promise of unprecedented transparency within the executive branch has gone largely unfulfilled...."

Earlier this week, House Democrats and newly elected Tea Party Representatives were able to block a first attempt by Republican leadership to renew the Patriot Act without revisions. It is likely there will be further attempts, with revisions added to the bill. These findings seriously suggest that our congresspeople might be worrying about the wrong thing. Perhaps the subject of debate should not be how free a hand our intelligence community should have in investigating and prosecuting cases, but what, if any, restriction or oversight is in place.

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