FBI delays investigation into London bombing conspirator to avoid judicial oversight

[motivez]

Counterterrorism officials in FBI headquarters slowed an investigation into a possible conspirator in the 2005 London bombings by forcing a field agent to return documents acquired from a U.S. university. Why? Because the agent received the documents through a lawful subpoena, while headquarters wanted him to demand the records under the USA Patriot Act, using a power the FBI did not have, but desperately wanted.

When a North Carolina State University lawyer correctly rejected the second records demand, the FBI obtained another subpoena. Two weeks later, the delay was cited by FBI director Robert Mueller in congressional testimony as proof that the USA Patriot Act needed to be expanded.

The strange episode is recounted in newly declassified documents obtained by the Electronic Frontier Foundation under the Freedom of Information Act. The documents shed new light on how senior FBI officials' determination to gain independence from judicial oversight slowed its own investigation, and led the bureau's director to offer inaccurate testimony to Congress. The revelations are likely to play a key role in Capitol Hill hearings Tuesday and Wednesday on the FBI's use of so-called national security letters, or NSLs

At issue is the FBI's probe of a former chemistry graduate student at North Carolina State University who was then suspected aiding the deadly attack. The student has since been cleared of any involvement.

The agent investigating the student in the Charlotte, North Carolina field office obtained a grand jury subpoena demanding some university records on the student. But he was then advised by superiors in Washington DC to return the papers and draft an NSL demanding the documents instead.

Under the USA Patriot Act, FBI counterterrorism investigators can self-issue such letters to get phone records, portions of credit reports and bank records, simply by certifying that the records are relevant to an investigation. Unlike subpoenas, NSLs do not require probable cause, and at the time obliged the recipient to not discuss the demand with anyone, ever. In contrast, gag orders attached to grand jury subpoenas have expiration dates.

FBI agents have relied heavily on the power, issuing more than 100,000 NSLs in 2004 and 2005 combined. The first audit of the FBI's use of the power found the agents became sloppy in their use of the power and one HQ office went rogue and issued hundreds of fake emergency requests for phone records.

The problem in the bombing case: the NSL demanded the university's health records on the student. Even under the USA Patriot Act, which greatly expanded the NSL's reach, university records and health records are exempt, making the order from headquarters a sure-fire path to delay.

The FBI even has sample letters for each of the 11 kinds of records NSL can be used to obtain. To comply with the demand from Washington, the Charlotte agent had to modify a sample letter intended for internet records.

The university, which had readily turned over the records in response to a subpoena, rejected the illegal NSL. Two weeks later, Mueller, testifying before the Senate Judiciary Committee, portrayed the university as intransigent and said the incident showed the FBI needed the power to force the turnover of all sorts of records without having to involve the court system.

"Now in my mind, we should not, in that circumstance have to show somebody that this was an emergency," Mueller testified on July 27, 2005. "We should've been able to have a document, an administrative subpoena that we took to the university and got those records immediately."

Some of the declassified documents suggest that Mueller was himself misled by underlings, and wasn't told that the records had already been turned over in response to a subpoena.

Additionally, no one reported the overreaching subpoena to the Intelligence Oversight Board until 2007, when the Inspector General started asking questions. Oversight rules require officials to report any possible violations within 14 days.

This week, the House and Senate Judiciary committees are holding new hearings on NSLs. Over the past two years, the Justice Department's Inspector General has issued two damning reports on the agency's sloppiness in using the letters. Additionally, several courts have struck down some aspects of the NSLs as unconstitutional, and reports have surfaced that intelligence and military units are using them for domestic investigations.

Congressman Jerrold Nadler (D-New York) has introduced legislation to rein in the use of national security letters, and provide penalties for abuses.

UPDATE: FBI General Counsel Valerie Caproni responded to questions about the incident from Rep. Nadler in a hearing Tuesday, essentially saying it wasn't a big deal since the FBI was entitled to the records, anyhow:

"I am not quite sure why the direction was give to issue an NSL in that case," Caproni said. "As I look at what I believe they were seeking from the university, an NSL was not the way to go. It's unclear why HQ chose the wrong tool."

FBI Caused Delay in Terror Case Ahead of Senate Testimony | Threat Level from Wired.com

So, essentially the FBI purposely delays an investigation into someone who is a potential conspirator in the London bombings to use a national security letter which avoids judicial oversight and doesn't suffer the same 'probable cause' restrictions a normal subpoena / warrant does .. even though they didn't have the power

And then use the fact that the delay happened (as a result of their own doing) to lobby Congress to increase their power..

I hope the Judiciary committees will actually do something useful, some people need to lose their job over this.. It's really amazing to me the lengths some are willing to go to avoid having to deal with the court system, whether it's this or Bush's warrantless wiretapping

I'm also really amazed that most Americans seem not to care about this intrusion

[6SpeedTA95]

There's some pretty scary aspects to this mess. I just wonder what congress is going to do about it if anything...

Under the USA Patriot Act, FBI counterterrorism investigators can self-issue such letters to get phone records, portions of credit reports and bank records, simply by certifying that the records are relevant to an investigation. Unlike subpoenas, NSLs do not require probable cause, and at the time obliged the recipient to not discuss the demand with anyone, ever. In contrast, gag orders attached to grand jury subpoenas have expiration dates.

THats pretty interesting and sounds like its being used way too often by the FBI. I can see some limited instance where this may be necessary but its been used 100,000 times in what 6 years?

If there's no restrictions on what the government can do with regard to conducting investigations we midaswell fold up shop and burn the constitution.

[hsmith]

Sometimes I really debate bringing a child into this world.

[WickedLou9]

This administration has gutted the "right to be free from unreasonable search and seizure". It's a meaningless right and you're right.. no one cares. We hold people without charges, we spy on people without warrants, it's crazy.... and don't count on the justices that Bush appointed to the court to do anything about this.

[motivez]

Originally Posted by WickedLou9

This administration has gutted the "right to be free from unreasonable search and seizure". It's a meaningless right and you're right.. no one cares. We hold people without charges, we spy on people without warrants, it's crazy.... and don't count on the justices that Bush appointed to the court to do anything about this.

Yeah, but the question is why don't people care? I mean, this is such a fundamental right IMO.. when a government decides it's not necessary to have the judiciary make sure its request to invade the personal lives of its citizens is justifiable by the evidence, how can we still really call this a free country?

It's also very disturbing to me that they would have rather delayed the investigation into someone who could have potentially been planning another attack, risking who knows how many lives, for a power grab. How can they not lose their job over this?

And yeah, another reason I'll be supporting the Democrat for President.. on issues like this, we can't afford another Alito on the bench, and it looks like the next President is likely going to get several appointments

[6SpeedTA95]

Originally Posted by motivez

Yeah, but the question is why don't people care? I mean, this is such a fundamental right IMO.. when a government decides it's not necessary to have the judiciary make sure its request to invade the personal lives of its citizens is justifiable by the evidence, how can we still really call this a free country?

It's also very disturbing to me that they would have rather delayed the investigation into someone who could have potentially been planning another attack, risking who knows how many lives, for a power grab. How can they not lose their job over this?

And yeah, another reason I'll be supporting the Democrat for President.. on issues like this, we can't afford another Alito on the bench, and it looks like the next President is likely going to get several appointments

Why are you blaming this type of thing on Alito? Has he even ruled on something like this yet?

[motivez]

Originally Posted by 6SpeedTA95

Why are you blaming this type of thing on Alito? Has he even ruled on something like this yet?

I wasn't blaming this situation on Alito, but things like this (ie: privacy rights, torture, etc) can't be entrusted to people like him, or people that someone like McCain would appoint IMO.

[kinggovernor]

Originally Posted by motivez

I wasn't blaming this situation on Alito, but things like this (ie: privacy rights, torture, etc) can't be entrusted to people like him, or people that someone like McCain would appoint IMO.

maybe you mean Scalia? Because Alito has yet to rule.

[motivez]

No, I mean Alito. Look back to his history when he was in the Reagan Administration for clues on how he's going to rule:

Alito Urged Wiretap Immunity

[WickedLou9]

Originally Posted by kinggovernor

maybe you mean Scalia? Because Alito has yet to rule.

To-may-to , to-mah-to

Scalito? They are the same person anyway.

[Kytro]

Originally Posted by motivez

Yeah, but the question is why don't people care?

Usually because they do not see it affecting them, and see the need to stop "terrorists"

[motivez]

Originally Posted by Kytro

Usually because they do not see it affecting them, and see the need to stop "terrorists"

I just don't understand how they don't see that this will lead to other measures that will affect them

There's the old poem by Martin Niemöller:

When the Nazis came for the communists,
I remained silent;
I was not a communist.

When they locked up the social democrats,
I remained silent;
I was not a social democrat.

When they came for the trade unionists,
I did not speak out;
I was not a trade unionist.

When they came for the Jews,
I remained silent;
I wasn't a Jew.

When they came for me,
there was no one left to speak out.

Now, aside.. it still rings true, people should stand up for the civil liberties of others because eventually they'll take away something that you care about.

[WickedLou9]

Originally Posted by motivez

I just don't understand how they don't see that this will lead to other measures that will affect them

There's the old poem by Martin Niemöller:



Now, aside.. it still rings true, people should stand up for the civil liberties of others because eventually they'll take away something that you care about.

What you do unto the least of my children you do unto me.

it's amazing how many people claim to be christian but ignore so many of the central tennants of christ's teachings.

[Kytro]

Originally Posted by motivez

Now, aside.. it still rings true, people should stand up for the civil liberties of others because eventually they'll take away something that you care about.

It does if you think about it properly, but many people do not, they react. They are scared, and a strong government makes them feel safe.

Part of the reason why the FBI did what it did was to keep people scared so they keep reacting and not thinking