Newly Released Documents Detail FBI’s Plan to Expand Federal Surveillance Laws

EFF just received documents in response to a 2-year old FOIA request for information on the FBI’s “Going Dark” program, an initiative to  increase the FBI’s authority in response to problems the FBI says it’s  having implementing wiretap and pen register/trap and trace orders on new communications technologies. The documents detail a fully-formed and  well-coordinated plan to expand existing surveillance laws and develop
new ones. And although they represent only a small fraction of the  documents we expect to receive in response to this and a more recent FOIA request, they were released just in time to provide important background information for the House Judiciary Committee’s hearing tomorrow on the Going Dark program. (HT Georgetown SLB)

FBI involved in hundreds of violations in national security investigations

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 the Electronic Frontier Foundation, which sued the FBI under the Freedom of Information Act to obtain about 2,500 documents that the FBI submitted to the President’s Intelligence Oversight Board.

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.

The report finds:

• Evidence of delays of 2.5 years, on average, between the occurrence of a violation and its eventual reporting to the Intelligence Oversight Board

• Reports of serious misconduct by FBI agents including lying in declarations to courts, using improper evidence to obtain grand jury subpoenas, and accessing password-protected files without a warrant

• Indications that the FBI may have committed upwards of 40,000 possible intelligence violations in the 9 years since 9/11

National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal Background and Recent Amendments,

New CRS report on the issue. Read it here.

FBI director defends sting operations

(AP) FBI Director Robert Mueller on Wednesday defended his agency’s use of sting operations in snaring terrorism suspects, a technique some have complained amounts to entrapment.

The FBI has come under criticism over its repeated use of stings in which agents and informants walk a suspect through a carefully choreographed plot to carry out what they believe to be a real bomb attack, though the explosives are never real.

Nineteen-year-old Mohamed Osman Mohamud was arrested the day after Thanksgiving in Portland, Ore., after he allegedly tried to detonate a bomb. The bomb was not real and the whole plot had been created by the FBI.

“We have been tremendously successful in thwarting attacks,” Mueller said at a news conference. “We are very careful in these investigations. … They are absolutely essential if we are to protect the community against terrorist attacks.”

Mueller said undercover operations are necessary to many FBI probes, not just those related to counterterrorism, and he noted that defendants have claimed in a string of cases since Sept. 11, 2001, that they were the victims of entrapment.

“There has not been yet to my knowledge a defendant who has been acquitted in asserting the entrapment defense,” Mueller said, crediting “substantial oversight” such probes have.

Additionally, civil rights and Muslim groups in Orange County have faulted the FBI over its infiltration of mosques with at least one informant who was paid to gather intelligence. The informant, Craig Monteilh, claimed that his handlers told him to ask mosque members about “jihad” and their support for terrorist operations abroad.

Extracting passwords from electronic devices is key
Mueller was speaking at the official opening of a new crime laboratory that specializes in extracting data and files from cell phones, flash drives and computers seized in criminal probes.

The so-called Regional Computer Forensic Laboratory will employ a team of 23 forensic examiners who are trained to circumvent passwords and other security measures a user may put on an electronic device.

“There is not a case now where you don’t have a hard drive, a thumb drive, a cell phone or some other mechanism for either communicating or storing data,” Mueller said.

Seven FBI agents will team up with 16 officials from local law enforcement agencies in Orange County to run the center, which was approved in 2008 and cost $7 million to set up. Using the latest software and computer systems, they will be able to quickly pull data, text messages and other information from cell phones.

Smart phones users often leave a plethora of personal data for investigators to pore over, including photographs with a GPS tag giving coordinates of where the picture was taken.

The lab is the 15th of its kind across the country. Mueller said that at a different lab, agents gathered information during an investigation into Najibullah Zazi, the son of an Afghan immigrant who admitted driving from Denver to New York with the intention of attacking the subway system.

Because of the data that was seized, agents were able to track him and prevent the attack, Mueller said.

FBI whistleblower trial highlights bureau’s post-9/11 transformation

The Washington Post reports that an FBI whistleblower trial has cast a spotlight on the bureau’s difficult transition from a crime-fighting agency into a counterterrorism and intelligence force, as seen through the career of its highest-ranking Arab American agent.

Over a two-week trial in Washington, a federal jury heard for the first time how Bassem Youssef, 52, an Egyptian-born Coptic Christian, recruited the U.S. government’s top informant in the terror cell that bombed the World Trade Center in 1993.

Youssef alleged, however, that he was sidelined during the Sept. 11, 2001, terrorist attacks after publicly airing concerns about the FBI’s dearth of Middle Eastern experts.

Instead, in the eight years since filing suit in 2002, the 22-year bureau veteran has played a role in exposing top counterterrorism officials’ ignorance of al-Qaeda and violent Islamist extremism in 2005 and the agency’s struggle to correct its illegal collection of thousands of phone records of Americans between 2003 and 2006. Youssef also has warned Congress of urgent vacancies in top terrorism investigative slots.

On Monday, a jury before U.S. District Judge Colleen Kollyer-Kotelly in Washington ended one strand of litigation entangling the parties, denying Youssef’s claim that the FBI denied him opportunities to qualify for promotion in 2004 and 2005 because of his whistleblowing.

Nevertheless, Youssef returned to work Tuesday as head of an FBI technical unit that analyzes telephone and electronic communications for terrorism clues. He also will continue to pursue his related legal claims that bureaucratic pride led the FBI to discriminate against or ignore Arabic or Muslim experts and deny his promotion or transfer.

F.B.I. Searches Antiwar Activists’ Homes

F.B.I.  agents executed search warrants Friday in Minneapolis and Chicago in connection to an investigation of material support of terror organizations, the New York Times reports. The searches in Minneapolis took place early in the morning at the homes of people who have helped organize demonstrations against the war in Iraq and protests held two years ago during the Republican National Convention in St. Paul.

The warrant said agents were gathering evidence related to people “providing, attempting and conspiring to provide material support” to terrorist organizations, and listed Hezbollah, the Popular Front for Liberation of Palestine and the Revolutionary Armed Forces of Colombia.

The warrant also authorized the agents to look for information connected to the Freedom Road Socialist Organization and to unnamed “co-conspirators” and allowed them to seize items including electronics, photographs, address books and letters.

DOJ Inspector General Report – Review of the FBI’s investigations of certain domestic advocacy groups

The US Department of Justice (DOJ) Office of the Inspector General (OIG) released a report Monday absolving the FBI of charges that agents conducted investigations of domestic groups based on their exercise of First Amendment rights. The report criticizes the FBI for beginning investigations on weak factual predicates, continuing investigations longer than necessary, inappropriately retaining information on file and misclassifying investigations, and probing issues of state, rather than federal, law. The FBI reportedly monitored the Thomas Merton Center for Peace and Justice, an anti-war activist organization based in Pittsburgh, People for the Ethical Treatment of Animals (PETA), and Greenpeace USA . Additionally, the report indicates that Greenpeace advocates were inappropriately added to the terrorist watch list. In a response included in the report, FBI Deputy Director Timothy Murphy states that the FBI is “pleased that the Report concludes that the FBI did not target any groups for investigation on the basis of First Amendment activities.” Additionally, Murphy said the FBI “regrets that inaccurate information was provided” to Director Robert Mueller , which he subsequently presented to Congress. During a 2006 hearing before the Senate Judiciary Committee, Mueller refused to answer questions about the administration’s domestic spying program , saying the information was classified.