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FBI Papers Indicate Intelligence Violations

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Catherine Lotrionte, the presidential board's counsel, said most of its work is classified and covered by executive privilege. The board's investigations range from "technical violations to more substantive violations of statutes or executive orders," Lotrionte said.

Most such cases involve powers granted under the Foreign Intelligence Surveillance Act, which governs the use of secret warrants, wiretaps and other methods as part of investigations of agents of foreign powers or terrorist groups. The threshold for such surveillance is lower than for traditional criminal warrants. More than 1,700 new cases were opened by the court last year, according to an administration report to Congress.

In several of the cases outlined in the documents released to EPIC, FBI agents failed to file annual updates on ongoing surveillance, which are required by Justice Department guidelines and presidential directives, and which allow Justice lawyers to monitor the progress of a case. Others included a violation of bank privacy statutes and an improper physical search, though the details of the transgressions are edited out. At least two others involve e-mails that were improperly collected after the authority to do so had expired.

Some of the case details provide a rare peek into the world of FBI counterintelligence. In 2002, for example, the Pittsburgh field office opened a preliminary inquiry on a person to "determine his/her suitability as an asset for foreign counterintelligence matters" -- in other words, to become an informant. The violation occurred when the agent failed to extend the inquiry while maintaining contact with the potential asset, the documents show.

The FBI general counsel's office oversees investigations of alleged misconduct in counterintelligence probes, deciding whether the violation is serious enough to be reported to the oversight board and to personnel departments within Justice and the FBI. The senior FBI official said those cases not referred to the oversight board generally involve missed deadlines of 30 days or fewer with no potential infringement of the civil rights of U.S. persons, who are defined as either citizens or legal U.S. resident aliens.

"The FBI and the people who work in the FBI are very cognizant of the fact that people are watching us to make sure we're doing the right thing," the senior FBI official said. "We also want to do the right thing. We have set up procedures to do the right thing."

But in a letter to be sent today to the Senate Judiciary Committee, Sobel and other EPIC officials argue that the documents show how little Congress and the public know about the use of clandestine surveillance by the FBI and other agencies. The group advocates legislation requiring the attorney general to report violations to the Senate.

The documents, EPIC writes, "suggest that there may be at least thirteen instances of unlawful intelligence investigations that were never disclosed to Congress."


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