FBI infractions since 9/11 raise civil liberty concerns

On Sept. 26, 2002, a Special Agent in the FBI's Pittsburgh office had an "uh oh" moment, according to newly disclosed bureau records.

The agent had been in continual contact with a potential counterintelligence source since March. But under FBI rules, that contact required proper authorization - and the paperwork OKing the operation had expired in July, a detail the agent had overlooked for several months.

The extended communications hadn't amounted to much - one e-mail scheduling a security briefing, and two others that were social in nature. But under agency rules the violation had to be reported up the chain of command, all the way to then-Attorney General John Ashcroft, and Ret. Gen. Brent Scowcroft, chairman of the Intelligence Oversight Board.

"Should you or any member of your staff require additional information concerning this matter, an oral briefing will be arranged for you at your convenience," concludes a letter to General Scowcroft describing the situation.

This mistake - though inadvertent - may have been far from an isolated case. Records released this week indicate that the FBI has investigated hundreds of possible violations of the laws that govern secret surveillance operations.

Critics charge that the actions revealed in the papers raise questions about FBI internal controls and whether the changed threat perceptions after Sept. 11 have caused some agents to push the rules. At the least, they say, Congress needs to oversee secret operations more closely.

The FBI, for its part, replies that most of the mistakes aren't major. In addition, they were caught by the bureau itself, officials point out.

And some outside experts suggest that the FBI's biggest problem here may not be violations per se. Underlying the whole mess may be the difficulties of training new agents in the shifting complexities of surveillance law.

"There are pretty elaborate rules and regulations on this subject," says John Pike, a counterterror expert at Globalsecurity.com. "People have difficulty at times understanding what the rules are."

The papers describe 13 cases that were referred for possible action to the Intelligence Oversight Board, an outside panel of experts that is supposed to oversee any legal problems dealing with secret surveillance operations.

The documents were obtained by the Electronic Privacy Information Center under a Freedom of Information Act lawsuit. According to the EPIC, case numbers on the documents indicate that almost 300 potential violations occurred in a two-year period.

On Monday, the FBI said 113 cases of possible surveillance violations have been reported to the Intelligence Oversight Board since last year.

The 13 cases described in the papers released by the EPIC generally center on bureaucratic mistakes. Without further evidence of their nature, it is difficult to determine how serious the cases were.

In a 2004 case emanating from the FBI's Washington field office, for instance, an agent apparently obtained bank records without authorization in connection with a foreign intelligence operation. The internal letter on the case - which, like all the documents, is heavily redacted - concludes with a cryptic sentence: "In this instance, the conduct of [the Special Agent involved] was willful and intentional, even though she did not realize that she had acted in contravention of ... Bureau policy."

Under FBI rules, preliminary investigations dealing with surveillance matters can run 120 days. Anything longer requires review, and more authorization. Overrunning this deadline sparked a number of the cases contained in the documents.

In one case coming out of Denver, the overrun ran at least three months. In another case, a communications carrier made a mistake that resulted in the FBI carrying out an unauthorized electronic surveillance. Further details are deleted, but the implication is that agents got the wrong number on a wiretap.

On Monday the EPIC sent a letter to the Senate Judiciary Committee calling for hearings, with an eye toward greater Congressional oversight. The group, which generally favors restrictions on government surveillance actions, noted that this year's reauthorization of the Patriot Act significantly expanded the FBI's authority to use secret surveillance.

Versions of the reauthorization have passed both the Senate and the House, and a conference committee will soon meet to hash over the differences.

FBI officials have minimized the significance the problems disclosed by the documents, noting that they are largely technical. The FBI can police itself, they say, pointing out that any information found to be obtained under legally questionable circumstances is quarantined. If a violation is found, the data is destroyed.

Others note that both the rules and the personnel have been changing at the FBI.

"They've hired a lot of new people," says Mr. Pike. "You know they are not all going to be adequately trained, that's a fact of life."