The FBI disclosed to a presidential board that it was involved in nearly 800 violations of laws, regulations or policies governing national security investigations from 2001 to 2008, but the government won’t provide details or say whether anyone was disciplined, according to a report by a privacy watchdog group.
The San Francisco-based Electronic Frontier Foundation sued under the Freedom of Information Act to obtain about 2,500 documents that the FBI submitted to the President’s Intelligence Oversight Board.
The board was created in 1976 to monitor U.S. intelligence gathering. Intelligence agencies are required to submit reports to the board about suspected violations of civil-rights-related laws or presidential orders.
The nonprofit foundation said it obtained documents from a variety of intelligence agencies, but most of the records were so heavily censored that they couldn’t be properly evaluated.
The FBI provided the most substantive disclosures, although the documents were redacted to withhold names, exact dates and other identifying details, and they don’t say what action was taken to remedy or punish the violations.
Nevertheless, the documents “constitute the most complete picture of post-9/11 FBI intelligence abuses available to the public,” says the report, which is to be released Monday but was obtained in advance by this paper’s Washington bureau.
“The documents suggest,” the report says, “that FBI intelligence investigations have compromised the civil liberties of American citizens far more frequently, and to a greater extent, than was previously assumed.”
In 2007, the Justice Department’s inspector general told Congress that the FBI may have violated the law or government policy as many as 3,000 times since 2003 in the course of secretly collecting telephone, bank and credit card records without warrants, instead using so-called national security letters. As many as 600 of the violations could be “cases of serious misconduct,” Inspector General Glenn A. Fine said, based on his audits. Those figures were far higher than the FBI acknowledged or reported to the oversight board.
The violations were largely unintentional, Fine said, but were the result of “mistakes, carelessness, confusion, sloppiness, lack of training, lack of adequate guidance and lack of adequate oversight.”
The records obtained by the foundation go beyond national security letters. About a third of the reports of violations involved rules governing internal oversight of intelligence investigations, and about a fifth involved potential violations of the Constitution, the Foreign Intelligence Surveillance Act or other laws governing criminal investigations or intelligence-gathering activities, the report says.
Valerie Caproni, the FBI’s general counsel, said in an interview Friday that most of the FBI’s reports to the oversight board were about technical errors that did not add up to misconduct. “The number of substantive violations of someone’s rights is very small and we take them very seriously,” she said.
“These guidelines were put in place to prevent civil rights abuses,” said Mark Rumold, the foundation lawyer who sued to obtain the records. “And when the FBI is glibly treating violations as technical mistakes, it’s indicative of a broader problem — the FBI’s attitude toward dedicated, effective oversight. Moreover, President Obama promised to have a more transparent government, but when it comes to national security and intelligence investigations, that just hasn’t been the case.”
One four-page report is entirely redacted except for language that says the “scope of [the FBI agent’s] alleged offenses” warranted reporting to the oversight board.
Caproni said details in the reports couldn’t be disclosed for reasons of national security. The Justice Department and the FBI have significantly boosted oversight over national security letters and intelligence warrant applications since 2007, adding layers of auditing and compliance reviews, she said.
“We’ve fixed the problems that have been identified” on national security letters, she said, “and have put into place processes that should identify any problems that were previously not identified.
“Am I confident that, by and large, 99.9% of the time our agents are acting in compliance with the Constitution, the statutes, executive orders and FBI and DOJ policies on civil liberties? I am.”
Regarding accountability for individual agents, Caproni said she could provide statistics for 2009 and 2010. In those two years, five cases were referred for internal investigation into whether civil liberties misconduct took place, but no misconduct was found.
A 2005 document obtained by the foundation says an agent used improper information, presumably intelligence-related, to obtain a grand jury subpoena, in violation of the law.
Not every misstep was the fault of the FBI, the foundation found. Sometimes companies turned over more information than the FBI sought, contributing to the FBI’s unauthorized receipt of personal information.
For example, a 2006 report says that after the FBI requested limited e-mail records from an e-mail provider, the provider twice sent a computer disc with the full contents of the customer’s e-mail accounts. The FBI did not use the information improperly.
On average, two and a half years elapsed between a violation’s occurrence and its eventual reporting to the oversight board, so oversight was likely “ineffectual,” the foundation’s report says.
Though the report focuses on conduct during the George W. Bush administration, it faults the Obama administration for refusing to say whether anyone is currently serving on the intelligence board, a failure that “continues to call into question the legitimacy of current intelligence oversight efforts.”
The White House did not respond to questions about the intelligence board.
The new disclosures come as the Patriot Act is up for renewal in Congress before it expires in February. The law, enacted after the Sept. 11, 2001, terrorist attacks, has made it easier for the FBI to gather certain personal information without a warrant in national security investigations.
One senior lawmaker, Sen. Patrick J. Leahy (D-Vt.), is proposing to increase judicial oversight of government intelligence gathering.