ACLU - Circumventing External Controls lyrics

1. Targeting Journalists The FBI's overzealous pursuit of government whistleblowers has also resulted in the inappropriate targeting of journalists for investigation, thereby chilling press freedoms. In 2010, the Inspector General reported that the FBI used an illegal “exigent letter” to obtain the telephone records of seven New York Times and Washington Post reporters and researchers during a media leak investigation, circumventing Justice Department regulations requiring the attorney general's approval before issuing grand jury subpoenas for journalists' records. The FBI obtained and uploaded 22 months' worth of data from these reporters' telephone numbers, totaling 1,627 calls.195 More recently, after The Associated Press reported on the CIA's involvement in interdicting a terrorist attack against a U.S. jetliner in May 2012, the Justice Department issued grand jury subpoenas seeking toll records from more than 20 separate telephone lines, including work and personal numbers for reporters and AP offices in New York, Washington, and Connecticut. In total, more than 100 journalists used the telephones covered by the subpoenas.196 One of the subpoenaed lines was the AP's main number in the U.S. House of Representatives' press gallery. As worrisome from a constitutional standpoint, a 2010 FBI search warrant application sought Fox News reporter James Rosen's e-mails as part of an investigation into a State Department detailee's alleged leak of cla**ified information regarding North Korea. The search warrant characterized Rosen as a criminal aider, abettor, or co-conspirator in an Espionage Act violation.197 The claim was made so the agent could avoid the stringent oversight and notice requirements of the Privacy Protection Act, which was enacted specifically to protect reporters' First Amendment rights. The PPA bars the government from obtaining news media-related work product unless there is probable cause to believe the reporter has actually committed a crime. The FBI affidavit claimed Rosen's requests for information from the government official amounted to illegal solicitations to commit espionage and said he groomed the official “[m]uch like an intelligence officer would run an [sic] clandestine source.”198 The affidavit concluded that “there is probable cause to believe the Reporter...has committed a violation of [the Espionage Act].” While the U.S. government has never prosecuted a journalist for publishing cla**ified information, this characterization of news gathering as criminal activity reveals that at least some FBI and Justice Department officials, and one federal judge who signed the warrant, believe they could do so in criminal leak cases. 2. Thwarting Congressional Oversight The FBI thwarts congressional oversight by withholding information, limiting or delaying responses to members' inquiries, or, worse, by providing false or misleading information to Congress and the American public. These are but a few examples. When Congress debated the first Patriot Act reauthorization in April 2005, FBI Director Robert Mueller testified that he was unaware of any “substantiated” allegations of abuse of Patriot Act authorities.199 The 2007 IG audit later revealed the FBI self-reported 19 Patriot Act-related violations of law or policy to the Intelligence Oversight Board between 2003 and 2005.200 Though misleading, this testimony was technically accurate because President Bush's Intelligence Oversight Board did not meet to “substantiate” any reported violations until the spring of 2007.201 During a 2006 Senate Judiciary Committee hearing, Chairman Patrick Leahy (D-Vt.) complained that when he asked Director Mueller if FBI agents had witnessed objectionable interrogation practices in Iraq, Afghanistan, or Guantanamo Bay during a hearing in May 2004, “he gave a purposefully narrow answer, saying that no FBI agents had witnessed abuses ‘in Iraq.'”202 But FBI documents released in December 2004 in response to an ACLU FOIA request revealed that FBI agents had witnessed abusive treatment of detainees at Guantanamo Bay on multiple occasions, which they duly reported to their FBI supervisors in the field and at FBI headquarters. Sen. Leahy said, “I hope that Director Mueller will continue moving away from the Bush Administration's policy of secrecy and concealment on this issue and toward the responsiveness that the American people deserve.”203 To the FBI's credit, a 2008 IG report indicated FBI agents repeatedly documented and reported detainee abuse they witnessed in Iraq, Afghanistan, and Guantanamo Bay.204 The IG report found the FBI did not properly respond to the agents' request for guidance until after the photographs depicting detainee abuse at Abu Ghraib prison in Iraq were published in April 2004, and a small number of FBI agents did participate in abusive interrogations. In an FBI oversight hearing in 2008, the late Sen. Arlen Specter criticized FBI Director Mueller for not having told him that President Bush authorized the National Security Agency to eavesdrop on Americans' communications in violation of the Foreign Intelligence Surveillance Act in 2001.205 Sen. Specter, who had oversight responsibility over the FBI as the Senate Judiciary Committee's Chairman or Ranking Member during the four years the secret program operated, complained that he only learned about the warrantless wiretapping program when it appeared in The New York Timesin late 2005.206 Sen. Specter pointed out that because Director Mueller knew about the program, and knew that the Intelligence Committees had not been briefed as required by the National Security Act of 1947, he had a responsibility to report it. Mueller responded that he “was of the belief that those who should be briefed in Congress were being briefed.”207 Sen. Feinstein, who served on both the Intelligence and Judiciary Committees, said Mueller's comment that members were fully briefed was “simply not accurate.”208 As Congress considered a second Patriot Act reauthorization in 2009, Director Mueller was asked about the importance of an expiring provision that allowed the FBI to obtain FISA orders to intercept the communications of unaffiliated “lone wolf” terrorists. He responded, “[a]s to the lone-wolf provision, while we have not —there has not been a lone wolf, so to speak, indicted, that provision is tremendously helpful.”209 He went on, “that is also a provision that has been, I believe, beneficial and should be re-enacted.” A few months later the Justice Department advised Sen. Leahy that the government had never used the lone wolf provision.210 According to a 2010 IG report, after ACLU FOIA requests exposed inappropriate FBI spying on a Pittsburgh anti-war rally in 2006, unidentified FBI officials concocted a false story claiming the surveillance was an attempt to identify a person related to a validly-approved terrorism investigation who they believed would attend the rally, not an effort to monitor the activities of the anti-war group.211 The FBI presented this false story to the public in press releases and to Congress through testimony by Director Mueller. When Sen. Leahy requested documentation regarding the FBI's investigation, this false story fell apart because there was no relevant Pittsburgh terrorism investigation. FBI officials then developed a second false story that circulated internally and ultimately sent to Congress a statement for the record that claimed documents couldn't be provided because the investigation was ongoing. When the IG investigated the matter, the FBI failed to provide internal e-mails that may have identified who in the FBI concocted these false stories.212 Congress cannot perform its critical oversight function if FBI officials fail or refuse to provide complete, timely, and accurate information upon request. 3. Thwarting Public Oversight with Excessive Secrecy In addition to secret surveillance and secret interpretations of the law, the FBI is also using excessive secrecy to hide from the public both routine demands for information in criminal cases and its extraordinary covert intelligence abuses. U.S. Magistrate Judge Stephen W. Smith wrote a law review article in 2012 warning that the FBI and other federal law enforcement officers have created an enormous “secret docket” of “warrant-type applications” for electronic surveillance under the Electronic Communications Privacy Act. These applications for wiretaps, pen registers, and stored communications and subscriber information exploit “a potent mix of indefinite sealing, nondisclosure (i.e. gagging), and delayed-notice provisions” in ECPA to obtain surveillance orders from U.S. magistrate judges that are only ever seen by the government agents and telephone and Internet service providers that execute the orders.Judge Smith estimates that magistrate judges seal around 30,000 ECPA orders annually. While these seals are supposed to be temporary, they often effectively become permanent due to inaction by the government.213 In a study in his own division, Judge Smith determined that 99.8 percent of sealed orders from 1995 through 2007 remained sealed in 2008.214 Magistrate judges are given little judicial guidance on how to address these requests for secrecy. Because these orders remain sealed they cannot be challenged by the subjects of the surveillance, which in turn deprives the magistrate judges of appellate court decisions that would provide guidance on how to interpret ECPA's complex provisions when evaluating future government secrecy demands under the statute.215 The result is less public oversight of law enforcement surveillance activities. In a profoundly disturbing case involving covert surveillance, the FBI in 2006 tasked informant Craig Monteilh, a convicted felon, with infiltrating several southern California mosques by pretending to convert to Islam. In a sworn affidavit, Monteilh says his FBI handlers provided him audio and video recording equipment and instructed him “to gather as much information on as many people in the m**m community as possible.”216 Monteilh's handlers did not give him specific targets, but told him to look for people with certain traits, such as anyone who studied Islamic law, criticized U.S. foreign policy, or “played a leadership role at a mosque or in the m**m community.”217 Monteilh said he recorded youth group meetings, lectures by m**m scholars, and talked to people about their problems so FBI agents could later “pressure them to provide information or become informants.”218 Monteilh's handlers told him to attend morning and evening prayers because the m**ms who attended were likely “very devout and therefore more suspicious.”219 Monteilh said he often left the recorder unattended to capture private conversations he was not a party to, and that his handlers knew this and did not tell him to stop. He said the agent told him more than once that “if they did not have a warrant they could not use the information in court, but that it was still useful to have the information.”220 Monteilh exposed his role as an FBI informant to the Los Angeles Times in 2009.221 The ACLU of Southern California, the Council on American Islamic Relations of Greater Los Angeles, and the law firm Hadsel, Stormer, Keeny, Richardson & Renick LLP initiated a cla** action law suit against the FBI on behalf of Southern California m**ms. The suit alleges the FBI unlawfully targeted people based on their religious beliefs in violation of the First Amendment, retained information about their religious practices in FBI files in violation of the Privacy Act, and conducted unreasonable searches in violation of the Fourth Amendment.222 In an extraordinary move, the government a**erted the “state secrets” privilege to block the lawsuit against the FBI from moving forward. 223 That FBI secrecy demands could prevent U.S. citizens and residents from going into a U.S. court room to protect themselves from unconstitutional FBI surveillance taking place in American communities offends Americans' sense of justice.224 The federal district court dismissed the illegal surveillance suit against the FBI based on the a**ertion of the state secrets privilege, but allowed claims against individual agents for FISA violations to proceed.225 During related FOIA litigation, a federal district judge severely criticized the FBI for misleading the court by falsely denying it had records responsive to the FOIA request. The FBI had been interpreting its exclusions under FOIA as authority to provide false no records responses to FOIA requestors under certain conditions. The Justice Department has since amended this policy to prevent false denial of records responses to FOIA requests. In all of these cases, the FBI could have chosen a path of greater transparency without harming criminal investigations or national security and defended its tactics in courts of law and in the court of public opinion. Its increasing reliance on secrecy to thwart legal challenges to its law enforcement and intelligence activities leaves the public with dangerously little recourse against FBI violations of constitutional rights.