More Illegal "Counterterrorism" Uncovered

Still with the criminal shenanigans that went on during the Bush administration. And—let me guess—no one will be prosecuted for this, either:

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 persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions.

E-mails obtained by The Washington Post detail how counterterrorism 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.

A Justice Department inspector general's report due out this month is expected to conclude that the FBI frequently violated the law with its emergency requests, bureau officials confirmed.

...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.

How did this happen? Surprise, surprise—it's the return of the Patriot Act-approved National Security Letter!

Before 9/11, FBI agents ordinarily gathered records of phone calls through the use of grand jury subpoenas or through an instrument know as a national security letter, issued for terrorism and espionage cases. Such letters, signed by senior headquarters officials, carry the weight of subpoenas with the firms that receive them.

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.

For a refresher on the scandalous history of the use of the National Security Letter (NSL) under the Bush administration, let's take a trip in the Wayback Machine.

First, we'll stop in December 2005, when there was a "debate" about "the FBI's use of national security letters to obtain secret access to the personal records of tens of thousands of Americans." (The FBI was, at that time, issuing "more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms.") Then we'll stop in May 2006, when it was discovered the FBI was using NSLs to track news outlets' phone calls "in an effort to root out confidential sources." Next, we'll swing by October 2007, when it was revealed the FBI used NSLs to bully Verizon into turning over "customers' telephone records to federal authorities in emergency cases without court orders hundreds of times since 2005." And let's take a swing by March 2007, when an audit by the Justice Department's inspector general found "22 possible breaches of internal FBI and Justice Department regulations—some of which were potential violations of law—in a sampling of 293 [NSLs]."

In January 2007, I compiled a list of examples of the use of NSLs, which I described as "the intelligence-gathering equivalent of the presidential signing statement—a stroke of the pen to magically turn dubiously ethical and formerly prohibited actions into perfectly legal maneuvers, with no legislation, no oversight, and no knowledge of the American people required." One of the things I noted about the pattern of their usage is that, in each instance, the breach of law was deemed "an accident."

This time is no different:

Bureau officials said agents were working quickly under the stress of trying to thwart the next terrorist attack and were not violating the law deliberately.

Oh, of course not. They never are.

Never mind that the fact some of these NSLs were issued retroactively as an ass-covering maneuver belies that contention entirely. Pay no attention to the NSL behind the curtain! Or something.

On a final note, you may be wondering on whom the FBI was illegally spying in this case. Well:

The records seen by The Post do not reveal the identities of the people whose phone call records were gathered, but FBI officials said they thought that nearly all of the requests involved terrorism investigations.

Gee, that's a relief. Wait. No, it's not. Not when the remaining cases could have been targeting media, or antiwar protesters, or liberal activists, on all of whom the FBI spied during the Bush administration.

FBI officials said they are confident that the safeguards enacted in 2007 have ended the problems.

Rest well tonight, Shakers.