The FBI Has Been Violating Your Liberties in Ways That May Shock You

Last week, Senate Judiciary Chairman Patrick Leahy, D-VT, introduced legislation to extend the Patriot Act past its February 28 expiration date to December 2013. Though the extension once again saves some of the most nefarious, First-Amendment trampling provisions of the act -- roving wiretaps, secret access to third-party records, the hunting of targets unafilliated with foreign powers -- Leahy released a statement assuring us that the new extension will increase citizen protections.

“It will promote transparency and expand privacy and civil liberties safeguards in current law,” he said in a statement. “It increases judicial oversight of government surveillance powers that capture information on Americans. This is a package of reforms that all Americans should support.” The expanded bill would require the Department of Justice to issue public reports and generally expand oversight.

 But will token rights-preserving provisions matter if the FBI refuses to comply?

Over the last decade, the FBI has been found to violate the Constitution countless times under the guise of the Patriot Act, including a 2007 scandal that led FBI head Robert Mueller to publicly apologize for the preponderance of security abuses, misconduct and violation of civil liberties on his watch. We’ve known since its enactment in 2001 that the Patriot Act, with its gross expansion of law enforcement power and murky reporting requirements, was just a rulebook waiting to be spoiled.

But according to a new report released by the Electronic Frontier Foundation (EFF), the FBI’s violations go far beyond what has been reported.

Since July 2009, EFF has been involved in litigation with seven different federal agencies for ignoring EFF’s requests for information submitted in 2008. In December 2009, the CIA, NSA, Department of Defense, Department of Homeland Security, Department of Justice, Office of the Director of National Intelligence, and Department of State were ordered by the Court to comply with EFF’s requests under the Freedom of Information Act, though it did not receive the complete papers from the FBI until October 2010.

The resulting 2,500-page document consists of FBI reports to the citizen-run Intelligence Oversight Board during the years 2001-2008. Consistently, documents released from the IOB reveal investigations of abuse that often have not been reported to Congress or the Department of Justice as required. But EFF’s analysis, pored over for several months, illuminates exactly how, when and why these investigations happened, and the results are shocking.

First, the numbers: EFF found that, since 9/11, the FBI has been responsible for up to 40,000 violations. Most often, said violations included bucking guidelines for internal oversight, abusing the National Security Letters and trampling on the Fourth Amendment. This, in tandem with the IOB’s weakened capacity for oversight under President George W. Bush, has resulted in nothing short of disaster. In 2008, Bush revoked the IOB’s right to refer violations to the Attorney General, and eliminated the agency’s requirement to report quarterly to the IOB. As EFF found, "The FBI’s disregard for its own internal oversight requirements and the Bureau’s failure to timely report violations to the IOB undermined the safeguards established to protect civil liberties violations from occurring." While the Obama administration restored a few of those changes, it still has not provided the proper transparency needed for a true citizen-protective oversight board or fully disclosed its makeup.

Some of the more egregious abuses, according to EFF’s report:

• Private entities such as phone companies, banks and Internet providers assisted the FBI’s National Security Letters abuse with alarming frequency, turning over information without valid legal justification in more than half of all case.
• Between 2001-2008, the average time between when a violation was committed, and when it was reported to the IOB, was 2.5 years.
• During that same time frame, the FBI was found to have submitted false or inaccurate documents to courts, used "improper evidence" to obtain subpoenas, and accessed password-protected documents without a warrant.