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  • UNLEASHED AND UNACCOUNTABLE; The FBI’s Unchecked Abuse of Authority

    The Federal Bureau of Investigation serves a crucial role in securing the United States from
    criminals, terrorists, and hostile foreign agents. Just as importantly, the FBI also protects civil
    rights and civil liberties, ensures honest government, and defends the rule of law. Its agents serve
    around the country and around the world with a high degree of professionalism and competence,
    often under difficult and dangerous conditions. But throughout its history, the FBI has also
    regularly overstepped the law, infringing on Americans’ constitutional rights while
    overzealously pursuing its domestic security mission.
    After the September 11, 2001 terrorist attacks, Congress and successive attorneys general
    loosened many of the legal and internal controls that a previous generation had placed on the FBI
    to protect Americans’ constitutional rights. As a result, the FBI is repeating mistakes of the past
    and is again unfairly targeting immigrants, racial and religious minorities, and political dissidents
    for surveillance, infiltration, investigation, and “disruption strategies.”
    But modern technological innovations have significantly increased the threat to American liberty
    by giving today’s FBI the capability to collect, store, and analyze data about millions of innocent
    Americans. The excessive secrecy with which it cloaks these domestic intelligence gathering
    operations has crippled constitutional oversight mechanisms. Courts have been reticent to
    challenge government secrecy demands and, despite years of debate in Congress regarding the
    proper scope of domestic surveillance, it took unauthorized leaks by a whistleblower to finally
    reveal the government’s secret interpretations of these laws and the Orwellian scope of its
    domestic surveillance programs.
    There is evidence the FBI’s increased intelligence collection powers have harmed, rather than
    aided, its terrorism prevention efforts by overwhelming agents with a flood of irrelevant data and
    false alarms. Former FBI Director William Webster evaluated the FBI’s investigation of Maj.
    Nadal Hasan prior to the Ft. Hood shooting and cited the “relentless” workload resulting from a
    “data explosion” within the FBI as an impediment to proper intelligence analysis. And members
    of Congress questioned several other incidents in which the FBI investigated but failed to
    interdict individuals who later committed murderous terrorist attacks, including the Boston
    Marathon bombing. While preventing every possible act of terrorism is an impossible goal, an
    examination of these cases raise serious questions regarding the efficacy of FBI methods. FBI
    data showing that more than half of the violent crimes, including over a third of the murders in
    the U.S., go unsolved each year calls for a broader analysis of the proper distribution of law
    enforcement resources.
    With the appointment of Director James Comey, the FBI has seen its first change in leadership
    since the 9/11 attacks, which provides an opportunity for Congress, the president, and the
    attorney general to conduct a comprehensive evaluation of the FBI’s policies and programs. This
    report highlights areas in which the FBI has abused its authority and recommends reforms to ensure the FBI fulfills its law enforcement and security missions with proper public oversight
    and respect for constitutional rights and democratic ideals.
    The report describes major changes to law and policy that unleashed the FBI from its traditional
    restraints and opened the door to abuse. Congress enhanced many of the FBI’s surveillance
    powers after 9/11, primarily through the USA Patriot Act and the Foreign Intelligence
    Surveillance Act Amendments. The recent revelations regarding the FBI’s use of Section 215 of
    the USA Patriot Act to track all U.S. telephone calls is only the latest in a long line of abuse.
    Five Justice Department Inspector General audits documented widespread FBI misuse of Patriot
    Act authorities in 2007 and 2008. Congress and the American public deserve to know the full
    scope of the FBI’s spying on Americans under the Patriot Act and all other surveillance
    authorities.
    Attorney General Michael Mukasey rewrote the FBI’s rule book in 2008, giving FBI agents
    unfettered authority to investigate anyone they choose without any factual basis for suspecting
    wrongdoing. The 2008 Attorney General’s Guidelines created a new kind of intrusive
    investigation called an “assessment,” which requires no “factual predicate” and can include
    searches through government or commercial databases, overt or covert FBI interviews, and
    tasking informants to gather information about anyone or to infiltrate lawful organizations. In a
    two-year period from 2009 to 2011, the FBI opened over 82,000 “assessments” of individuals or
    organizations, less than 3,500 of which discovered information justifying further investigation.
    The 2008 guidelines also authorized the FBI’s racial and ethnic mapping program, which
    allows the FBI to collect demographic information to map American communities by race and
    ethnicity for intelligence purposes, based on crass racial stereotypes about the crimes each group
    commits. FBI documents obtained by the American Civil Liberties Union show the FBI mapped
    Chinese and Russian communities in San Francisco for organized crime purposes, all Latino
    communities in New Jersey and Alabama because there are street gangs, African Americans in
    Georgia to find “Black separatists,” and Middle-Eastern communities in Detroit for terrorism.
    The FBI also claimed the authority to sweep up voluminous amounts of information secretly
    from state and local law enforcement and private data aggregators for data mining purposes. In
    2007, the FBI said it amassed databases containing 1.5 billion records, which were predicted to
    grow to 6 billion records by 2012, which is equal to 20 separate “records” for every person in the
    United States. The largest of these databases, the Foreign Terrorist Tracking Task Force,
    currently has 360 staff members running 40 separate projects. A 2013 Inspector General audit
    determined it “did not always provide FBI field offices with timely and relevant information.”
    The next section of the report discusses the ways the FBI avoids accountability by skirting
    internal and external oversight. The FBI, which Congress exempted from the Whistleblower
    Protection Act, effectively suppresses internal dissent by retaliating against employees who
    report waste, fraud, abuse, and illegality. As a result, 28 percent of non-supervisory FBI employees surveyed by the Inspector General said they “never” reported misconduct they saw or
    heard about on the job. The FBI also aggressively investigates other government whistleblowers,
    which has led to an unprecedented increase in Espionage Act prosecutions over the last five
    years. And the FBI’s overzealous pursuit of government whistleblowers has also resulted in the
    inappropriate targeting of journalists for investigation, infringing on free press rights. Recent
    coverage of overbroad subpoenas for telephone records of Associated Press journalists and an
    inappropriate search warrant for a Fox News reporter are only the latest examples of abuse. In
    2010 the Inspector General reported the FBI used an illegal “exigent letter” to obtain the
    telephone records of 7 New York Times and Washington Post reporters. And the FBI thwarts
    congressional oversight with excessive secrecy and delayed or misleading responses to
    questions from Congress.
    Finally, the report highlights evidence of abuse that requires greater regulation, oversight, and
    public accountability. These include many examples of the FBI targeting First Amendment
    activities by spying on protesters and religious groups with aggressive tactics that infringe on
    their free speech, religion, and associational rights. In 2011, the ACLU exposed flawed and
    biased FBI training materials that likely fueled these inappropriate investigations.
    The FBI also operates increasingly outside the United States, where its activities are more
    difficult to monitor. Several troubling cases indicate the FBI may have requested, facilitated,
    and/or exploited the arrests of U.S. citizens by foreign governments, often without charges, so
    they could be held and interrogated, sometimes tortured, and then interviewed by FBI agents.
    The ACLU represents two proxy detention victims, including Amir Meshal, who was arrested
    at the Kenya border in 2007 and subjected to more than four months of detention in three
    different East African countries without charge, access to counsel, or presentment before a
    judicial officer, at the behest of the U.S. government. FBI agents interrogated Meshal more than
    thirty times during his detention.
    Other Americans traveling abroad discover that their government has barred them from flying;
    the number of U.S. persons on the No Fly List has doubled since 2009. There is no fair
    procedure for those mistakenly placed on the list to challenge their inclusion. Many of those
    prevented from flying home have been subjected to FBI interviews after seeking assistance from
    U.S. Embassies. The ACLU is suing the government on behalf of 10 American citizens and
    permanent residents who were prevented from flying to the U.S., arguing that barring them from
    flying without due process is unconstitutional.
    These FBI abuses of authority must end. We call on President Barack Obama and Attorney
    General Eric Holder to tighten FBI authorities to prevent unnecessary invasions of Americans’
    privacy; prohibit profiling based on race, ethnicity, religion and national origin; and protect First
    Amendment activities. And we call on Congress to make these changes permanent through
    statute and improve oversight to prevent future abuse. The FBI serves a crucial role in protecting
    Americans, but it must protect our rights as it protects our security.

    Find this story at 17 September 2013

    © ACLU