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The FBI has dramatically increased its use of a controversial provision of the Patriot Act to secretly obtain a vast store of business records of U.S. citizens under President Barack Obama, according to recent Justice Department reports to Congress. The bureau filed 212 requests for such data to a national security court last year – a 1,000-percent increase from the number of such requests four years earlier, the reports show. Follow @openchannelblog The FBI’s increased use of the Patriot Act’s “business records” provision — and the wide ranging scope of its requests -- is getting new scrutiny in light of last week’s disclosure that that the provision was used to obtain a top-secret national security order requiring telecommunications companies to turn over records of millions of telephone calls. Advertise | AdChoices Taken together, experts say, those revelations show the government has broadly interpreted the Patriot Act provision as enabling it to collect data not just on specific individuals, but on millions of Americans with no suspected terrorist connections. And it shows that the Foreign Intelligence Surveillance Court  accepted that broad interpretation of the law.

“That they were using this (provision) to do mass collection of data is definitely the biggest surprise,” said Robert Chesney, a top national security lawyer at the University of Texas Law School. “Most people who followed this closely were not aware they were doing this.  We’ve gone from producing records for a particular investigation to the production of all records for a massive pre-collection database. It’s incredibly sweeping.”  

But little-noticed statements by FBI Director Robert Mueller in recent years – as well as interviews with former senior law enforcement officials – hint at what Chesney calls a largely unnoticed “sea change” in the way the U.S. government collects data for terrorism and other national security investigations.

A secret FBI study found that anger over U.S. military operations abroad was the most commonly cited motivation for individuals involved in cases of “homegrown” terrorism. The report also identified no coherent pattern to “radicalization,” concluding that it remained near impossible to predict future violent acts. The study, reviewed by The Intercept, was conducted in 2012 by a unit in the FBI’s counterterrorism division and surveyed intelligence analysts and FBI special agents across the United States who were responsible for nearly 200 cases, both open and closed, involving “homegrown violent extremists.” The survey responses reinforced the FBI’s conclusion that such individuals “frequently believe the U.S. military is committing atrocities in Muslim countries, thereby justifying their violent aspirations.” Online relationships and exposure to English-language militant propaganda and “ideologues” like Anwar al-Awlaki are also cited as “key factors” driving extremism. But grievances over U.S. military action ranked far above any other factor, turning up in 18 percent of all cases, with additional cases citing a “perceived war against Islam,” “perceived discrimination,” or other more specific incidents. The report notes that between 2009 and 2012, 10 out of 16 attempted or successful terrorist attacks in the United States targeted military facilities or personnel.

The report is titled “Homegrown Violent Extremists: Survey Confirms Key Assessments, Reveals New Insights about Radicalization.” It is dated December 20, 2012. An FBI unit called the “Americas Fusion Cell” surveyed agents responsible for 198 “current and disrupted [homegrown violent extremists],” which the report says represented a fraction of all “pending, U.S.-based Sunni extremist cases” at the time. The survey seems designed to look only at Muslim violent extremism. (The FBI declined to comment.) Agents were asked over 100 questions about their subjects in order to “identify what role, if any,” particular factors played in their radicalization — listed as “known radicalizers,” extremist propaganda, participation in web forums, family members, “affiliation with religious, student, or social organization(s) where extremist views are expressed,” overseas travel, prison or military experience, and “significant life events and/or grievances.” Among the factors that did not “significantly contribute” to radicalization, the study found, were prison time, military service, and international travel. Although, the report notes, “the FBI historically has been concerned about the potential for prison radicalization,” in fact, “survey results indicate incarceration was rarely influential.” The report ends with recommendations that agents focus their attention on web forums, social media, and other online interactions, and step up surveillance of “known radicalizers” and those who contact them.

The study echoes previous findings, including a 2011 FBI intelligence assessment, recently released to MuckRock through a public records request, which concluded that “a broadening U.S. military presence overseas” was a motivating factor for a rise in plotted attacks, specifically the wars in Iraq and Afghanistan. That study also found “no demographic patterns” among the plotters. “Insofar as there is an identifiable motivation in most of these cases it has to do with outrage over what is happening overseas,” says John Mueller, a senior research scientist with the Mershon Center for International Security Studies at Ohio State University and co-author of “Chasing Ghosts: The Policing of Terrorism.” “People read news reports about atrocities and become angry,” Mueller said, adding that such reports are often perceived as an attack on one’s own in-group, religion, or cultural heritage. “It doesn’t have to be information from a jihadist website that angers someone, it could be a New York Times report about a drone strike that kills a bunch of civilians in Afghanistan.”

The National Security Agency created a "secret backdoor" so its massive databases could be searched for the contents of U.S. citizens' confidential phone calls and e-mail messages without a warrant, according to the latest classified documents leaked by Edward Snowden. A report in the Guardian on Friday quoted Sen. Ron Wyden, an Oregon Democrat who serves on the Senate Intelligence Committee, as saying the secret rule offers a loophole allowing "warrantless searches for the phone calls or emails of law-abiding Americans." That appears to confirm what Rep. Jerrold Nadler, a New York Democrat, said in June after receiving a classified briefing from administration officials a few days earlier on the extent of the NSA's domestic surveillance operations. If the NSA wants "to listen to the phone," an analyst's decision is sufficient, without any other legal authorization required, Nadler said he had been told during the briefing. "I was rather startled," said Nadler, an attorney who serves on the House Judiciary Committee.

FBI Director Robert Mueller responded by assuring Nadler, according to a transcript of the hearing, that to "listen to the phone," the government would need "a particularized order" from the Foreign Intelligence Surveillance Court -- a claim that is contradicted by today's Guardian report and other documents. Mueller has been succeeded by James Comey, who was confirmed last month by the Senate. In response to a CNET article at the time, Director of National Intelligence James Clapper released a statement saying: "The statement that a single analyst can eavesdrop on domestic communications without proper legal authorization is incorrect and was not briefed to Congress." Clapper never elaborated, however, on what "proper" authorization would be. Today's top-secret document leaked by Snowden reveals that "procedures approved on 3 October 2011 now allow for use of certain United States person names and identifiers as query terms when reviewing collected FAA 702 data."

FAA 702 is a reference to section 702 of a 2008 law that amended the Foreign Intelligence Surveillance Act. Those amendments created a warrantless surveillance process that could be employed by NSA analysts, but Congress never intended it to be used domestically against American citizens: A congressional report accompanying the law claimed it allows electronic surveillance only of "persons located outside the United States in order to acquire foreign intelligence information." In reality, though, the Obama Justice Department has devised secret interpretations of FAA 702 carving out loopholes in what were intended to be strict privacy safeguards. One loophole revealed in June shows that NSA, CIA, and FBI analysts are granted broad access to data vacuumed up by the world's most powerful intelligence agency -- but are supposed to follow certain "targeting" and "minimization" procedures to limit the number of Americans who become individual targets of warrantless surveillance.

Though the NSA says its mass surveillance of Americans targets only “terrorists,” the spying may turn up evidence of other illegal acts that can get passed on to law enforcement which hides the secret source through a ruse called “parallel construction,” writes ex-CIA analyst Ray McGovern. By Ray McGovern Rarely do you get a chance to ask a just-retired FBI director whether he had “any legal qualms” about what, in football, is called “illegal procedure,” but at the Justice Department is called “parallel construction.” Government wordsmiths have given us this pleasant euphemism to describe the use of the National Security Agency’s illegal eavesdropping on Americans as an investigative tool to pass on tips to law enforcement agencies which then hide the source of the original suspicion and “construct” a case using “parallel” evidence to prosecute the likes of you and me.

For those interested in “quaint” things like the protections that used to be afforded us by the Fourth and Fifth Amendments to the Constitution, information about this “parallel construction” has been in the public domain, including the “mainstream media,” for at least a year or so. So, I welcomed the chance to expose this artful practice to still more people with cameras rolling at a large conference on “Ethos & Profession of Intelligence” at Georgetown University on Wednesday, during the Q & A after former FBI Director Robert Mueller spoke. Mueller ducked my question regarding whether he had any “legal qualms” about this “parallel construction” arrangement. He launched into a discursive reply in which he described the various ”authorities” enjoyed by the FBI (and the CIA), which left the clear impression not only that he was without qualms but that he considered the practice of concealing the provenance of illegally acquired tip-off information somehow within those professed “authorities.”

Bottom line? Beware, those of you who think you have “nothing to hide” when the NSA scoops up your personal information. You may think that the targets of these searches are just potential “terrorists.” But the FBI, Internal Revenue Service, Drug Enforcement Administration and countless other law enforcement bodies are dipping their cursors into the huge pool of mass surveillance.

While much of the speculation about the contents of the 28 classified pages from a 9/11 intelligence inquiry center on the secret activities of foreign governments, there is growing scrutiny on the secret activities of our own government—specifically, its investigation of the terrorists both before and after the attacks.

Television station WTSP, which serves Sarasota and Tampa Bay, aired a very insightful report last week in which investigative reporter Mike Deeson talked to former Senator Bob Graham and dug deep into the FBI’s concealment of its investigation of the Sarasota 9/11 terror cell. You can watch it here.

Meanwhile at Counterpunch, James Ridgeway traces the FBI’s stonewalling of the joint House/Senate intelligence inquiry all the way to the White House and makes the case that the failure to cooperate with the inquiry may well amount to obstruction of justice by George Bush, Dick Cheney and FBI Director Robert Mueller: Finally in his book, Graham describes a letter from a member of the FBI’s congressional staff explaining the Bureau had been uncooperative on orders of the administration.  “We were seeing in writing what we had suspected for some time. The White House was directing the coverup.

On March 12, 2004, acting attorney general James B. Comey and the Justice Department’s top leadership reached the brink of resignation over electronic surveillance orders that they believed to be illegal. President George W. Bush backed down, halting secret foreign-intelligence-gathering operations that had crossed into domestic terrain. That morning marked the beginning of the end of STELLARWIND, the cover name for a set of four surveillance programs that brought Americans and American territory within the domain of the National Security Agency for the first time in decades. It was also a prelude to new legal structures that allowed Bush and then President Obama to reproduce each of those programs and expand their reach.What exactly STELLARWIND did has never been disclosed in an unclassified form. Which parts of it did Comey approve? Which did he shut down? What became of the programs when the crisis passed and Comey, now Obama’s expected nominee for FBI director, returned to private life?Authoritative new answers to those questions, drawing upon a classified NSA history of STELLARWIND and interviews with high-ranking intelligence officials, offer the clearest map yet of the Bush-era programs and the NSA’s contemporary U.S. operations.STELLARWIND was succeeded by four major lines of intelligence collection in the territorial United States, together capable of spanning the full range of modern telecommunications, according to the interviews and documents.

Two of the four collection programs, one each for telephony and the Internet, process trillions of “metadata” records for storage and analysis in systems called MAINWAY and MARINA, respectively. Metadata includes highly revealing information about the times, places, devices and participants in electronic communication, but not its contents. The bulk collection of telephone call records from Verizon Business Services, disclosed this month by the British newspaper the Guardian, is one source of raw intelligence for MAINWAY.The other two types of collection, which operate on a much smaller scale, are aimed at content. One of them intercepts telephone calls and routes the spoken words to a system called ­NUCLEON.For Internet content, the most important source collection is the PRISM project reported on June 6 by The Washington Post and the Guardian. It draws from data held by Google, Yahoo, Microsoft and other Silicon Valley giants, collectively the richest depositories of personal information in history.

The debate has focused on two of the four U.S.-based collection programs: PRISM, for Internet content, and the comprehensive collection of telephone call records, foreign and domestic, that the Guardian revealed by posting a classified order from the Foreign Intelligence Surveillance Court to Verizon Business Services.The Post has learned that similar orders have been renewed every three months for other large U.S. phone companies, including Bell South and AT&T, since May 24, 2006. On that day, the surveillance court made a fundamental shift in its approach to Section 215 of the Patriot Act, which permits the FBI to compel production of “business records” that are relevant to a particular terrorism investigation and to share those in some circumstances with the NSA. Henceforth, the court ruled, it would define the relevant business records as the entirety of a telephone company’s call database.The Bush administration, by then, had been taking “bulk metadata” from the phone companies under voluntary agreements for more than four years. The volume of information overwhelmed the MAINWAY database, according to a classified report from the NSA inspector general in 2009. The agency spent $146 million in supplemental counterterrorism funds to buy new hardware and contract support — and to make unspecified payments to the phone companies for “collaborative partnerships.”When the New York Times revealed the warrantless surveillance of voice calls, in December 2005, the telephone companies got nervous. One of them, unnamed in the report, approached the NSA with a request. Rather than volunteer the data, at a price, the “provider preferred to be compelled to do so by a court order,” the report said. Other companies followed suit. The surveillance court order that recast the meaning of business records “essentially gave NSA the same authority to collect bulk telephony metadata from business records that it had” under Bush’s asserted authority alone.

Today we’re publishing—for the first time—the FBI’s drone licenses and supporting records for the last several years. Unfortunately, to say that the FBI has been less than forthcoming with these records would be a gross understatement. Just yesterday, Wired broke the story that the FBI has been using drones to surveil Americans. Wired noted that, during an FBI oversight hearing before the Senate Judiciary Committee, FBI Director Robert Mueller let slip that the FBI flies surveillance drones on American soil. Mueller tried to reassure the senators that FBI’s drone program “is very narrowly focused on particularized cases and particularized leads.” However, there’s no way to check the Director on these statements, given the Bureau’s extreme lack of transparency about its program.

EFF received these records as a result of our Freedom of Information lawsuit against the Federal Aviation Administration (FAA) for the licenses the FAA issues to all public entities wishing to fly drones in the national airspace. As detailed in prior posts and on our drone map, we have already received tens of thousands of pages of valuable information about local, state and federal agencies’ drone flights. However, unlike other federal agencies, including the US Air Force, the Bureau has withheld almost all information within its documents—even including the dates the FAA’s Certificates of Authorization (COAs) were issued. As you can see from the two examples linked below—the first from the Air Force and the second from the FBI—the FBI is withholding information, including something as basic as the city and state of the Bureau’s point of contact, that could in no way be expected to risk circumvention of the law (the applicable test under FOIA, 5 U.S.C. § 552 (b)(7)(E)).

The FBI has even withheld information from standard documents that all agencies file with the FAA to support their COA applications, many of which come directly from the drone manufacturer. (Compare, for example, the Air Force’s “LOST_LINK_MISSION” or “AIRCRAFT_SYSTEM” documents with the FBI’s versions of the same documents.) One interesting fact is that the Bureau has withheld most of the records under several statutes and regulations related to the arms exports and the International Traffic in Arms Regulations (ITAR) (see statutes and regulations here, here, and here.) This is surprising because, although ITAR does apply explicitly to drones, not even the US Military has claimed these statutes in withholding information from its drone records. Given the FBI’s past abuses and the information recently revealed about how the Bureau exploits specious interpretations of federal law to help out the NSA’s spying program, we have good reason to be concerned about the FBI’s lack of transparency here. We hope Senator Feinstein will follow up on her concerns about the FBI’s apparent lack of “strictures” in place to protect Americans’ privacy in connection to FBI drone use and demand a full accounting of how, when, where and why the Bureau has been using drones to monitor the public. Download the zip files of the documents here, here, and here.

The U.S. government started keeping secret records of Americans' international telephone calls nearly a decade before the Sept. 11 terrorist attacks, harvesting billions of calls in a program that provided a blueprint for the far broader National Security Agency surveillance that followed.For more than two decades, the Justice Department and the Drug Enforcement Administration amassed logs of virtually all telephone calls from the USA to as many as 116 countries linked to drug trafficking, current and former officials involved with the operation said. The targeted countries changed over time but included Canada, Mexico and most of Central and South America.Federal investigators used the call records to track drug cartels' distribution networks in the USA, allowing agents to detect previously unknown trafficking rings and money handlers. They also used the records to help rule out foreign ties to the bombing in 1995 of a federal building in Oklahoma City and to identify U.S. suspects in a wide range of other investigations.The Justice Department revealed in January that the DEA had collected data about calls to "designated foreign countries." But the history and vast scale of that operation have not been disclosed until now.

The now-discontinued operation, carried out by the DEA's intelligence arm, was the government's first known effort to gather data on Americans in bulk, sweeping up records of telephone calls made by millions of U.S. citizens regardless of whether they were suspected of a crime. It was a model for the massive phone surveillance system the NSA launched to identify terrorists after the Sept. 11 attacks. That dragnet drew sharp criticism that the government had intruded too deeply into Americans' privacy after former NSA contractor Edward Snowden leaked it to the news media two years ago.More than a dozen current and former law enforcement and intelligence officials described the details of the Justice Department operation to USA TODAY. Most did so on the condition of anonymity because they were not authorized to publicly discuss the intelligence program, part of which remains classified.The DEA program did not intercept the content of Americans' calls, but the records — which numbers were dialed and when — allowed agents to map suspects' communications and link them to troves of other police and intelligence data. At first, the drug agency did so with help from military computers and intelligence analysts

The extent of that surveillance alarmed privacy advocates, who questioned its legality. "This was aimed squarely at Americans," said Mark Rumold, an attorney with the Electronic Frontier Foundation. "That's very significant from a constitutional perspective."Holder halted the data collection in September 2013 amid the fallout from Snowden's revelations about other surveillance programs. In its place, current and former officials said the drug agency sends telecom companies daily subpoenas for international calling records involving only phone numbers that agents suspect are linked to the drug trade or other crimes — sometimes a thousand or more numbers a day.Tuesday, Justice Department spokesman Patrick Rodenbush said the DEA "is no longer collecting bulk telephony metadata from U.S. service providers." A DEA spokesman declined to comment.

For almost a decade and a half, the people behind the Bush administration's shameful treatment of terrorism suspects have avoided punishment for their crimes, but that may be about to change. The courts have had their say and have ruled that former Bush administration officials can, in fact, be sued for how they conducted the "war on terror." The Second Circuit Court of Appeals made that pretty much official on Friday when it refused to hear a challenge to its earlier ruling in the case of Turkmen v. Ashcroft. That case involves hundreds of Arab, Muslim or South Asian men who were detained and then abused by our government in the weeks following 9/11.

Some of them were beaten by security guards and kept in solitary confinement, which the United Nations considers a form of torture. After they were released, these men sued the people they say authorized their detentions - people like former Attorney General John Ashcroft and former FBI director Robert Mueller. A district court initially blocked their claims, but in June, the Second Circuit Court allowed them, saying that Ashcroft, Mueller and company could be sued. The government then made one more last ditch push to protect the Bush administration, but that effort failed last Friday when the Second Circuit rejected it. Everyone else who authorized and participated in the illegal roundup of hundreds of innocent men after 9/11, from high-up government officials on down, is now fair game for a lawsuit.

So who would have an interest in getting rid of Petraeus? Here’s where the Cantor connection comes in. The tip by an anonymous “FBI employee” that wound up in Cantor’s office two weeks ago came through Rep. David Reichert, Republican of Washington state, who has a friend who knows the whistleblower. Cantor then spoke to the whistleblower directly, who put him in touch with FBI Director Mueller. Cantor is a great friend of Israel, and Petraeus — not so much. The General was attacked, as you’ll recall, by partisans of the Lobby, including Abe Foxman, when he delivered testimony before Congress citing Israel as a strategic liability in the Middle East. As the executor of the new Obamaite policy of sidling up to Islamists, not only in Libya but also in Syria and Egypt, Petraeus was no doubt seen by the Israelis as an enemy to be neutralized.

Broadwell’s affiliation with the Jebsen Center, and the Center’s connection to the neoconservative network, sets the scene: a young, attractive woman with impeccable national security credentials throws herself at Petraeus, and he takes the bait. Whether she’s been recruited by a foreign intelligence agency at this point or not is irrelevant: he’s already put himself in a vulnerable position, and there are any number of actors on the international stage more than willing to press their advantage. Will we ever know the full story? At this point, the story is so hot that it may burn the cover story — “it’s all about sex” — right off the wrapper. Because there’s more — a lot more — here than meets the eye. When Cantor pledged to Israeli Prime Minister Benjamin Netanyahu that he and his fellow Republicans “will serve as a check on the administration” in regard to the President’s policy toward Israel, he was clearly aligning himself with a foreign leader against American interests as perceived by the White House. But would he really go this far — deliberately taking down a key figure, one beloved by Republicans, in order to keep his promise to Netanyahu?

Update: This morning [11/12/12] the New York Times reports: “F.B.I. agents interviewed Ms. Broadwell for the first time the week of Oct. 21, and she acknowledged the affair, a government official briefed on the matter said. She also voluntarily gave the agency her computer. In a search, the agents discovered several classified documents, which raised the additional question of whether Mr. Petraeus had given them to her. She said that he had not. Agents interviewed Mr. Petraeus the following week. He also admitted to the affair but said he had not given any classified documents to her. The agents then interviewed Ms. Broadwell again on Friday, Nov. 2, the official said.”

James Comey famously threatened to resign from the Justice Department in 2004 over the warrantless surveillance of Americans' internet records. But once Justice Department and National Security Agency lawyers found a novel legal theory to cover the surveillance, the man Barack Obama tapped last week to lead the FBI stayed on as deputy attorney general for another year as the monitoring continued.Comey was the acting attorney general in March 2004, when long-simmering legal tensions over the online "metadata" surveillance pitted the Justice Department and FBI against the Bush White House and NSA. That incident, dramatically recounted by Comey to the Senate in May 2007, earned the 6ft 8in former federal prosecutor a reputation for integrity that has become central to his persona.

President Obama directly referred to that reputation when he nominated Comey to take over the FBI on June 21. Hovering over the announcement were the Guardian and Washington Post's revelations of wide-ranging surveillance efforts."To know Jim Comey is also to know his fierce independence and his deep integrity," Obama said. "He was prepared to give up a job he loved rather than be part of something he felt was fundamentally wrong."Except that a classified report recounting the incident, acquired by the Guardian, complicates that view. Comey threatened to resign over the perceived illegality of one aspect of the surveillance. But he remained at the Justice Department for another year as that effort, operating under a new legal theory, continued nearly unchanged.

Comey would later testify to the Senate that the episode was "the most difficult of my professional career."But "immediately," the NSA IG report shows, lawyers from the NSA and Comey's Justice Department "began efforts to recreate this authority." They found it in what the document nebulously refers to as a Pen Register/Trap and Trace Order – a reference to devices traditionally used by surveillance officials to record the incoming and outgoing calls made and received by a telephone.The Fisa court, the secret court that oversees NSA surveillance, approved the first such order for NSA to again collect and analyze large volumes of internet records from Americans on July 14 2004, barely three months after Comey's rebellion.

Comey is lionised in DC for one challenge over liberties. Yet he backed waterboarding, wire-tapping and indefinite detention

It had the air of Hollywood. On the night of 10 March 2004, James Comey, the nominee to lead the FBI for the next ten years, rushed to the hospital bedside of his terribly ill boss, Attorney General John Ashcroft.There, he eventually confronted White House Chief of Staff Andrew Card and White House Counsel Alberto Gonzales, who were trying to get the pancreatitis-stricken Ashcroft to renew a still secret and illegal surveillance program on Americans' electronic communications. Neither Ashcroft nor Comey, then acting attorney general because of Ashcroft's condition, would reauthorize the program. When Gonzales authorized the program to go forward without a Justice Department certification, Comey threatened to resign, along with his staff and FBI Director Robert Mueller.The threats worked: President Bush blinked, and Comey won modifications to the secret surveillance program that he felt brought it into compliance with the law. This event, now the stuff of DC legend, has solidified Comey's reputation as a "civil liberties superhero", in the words of CNN's Jake Tapper, and may be one of the reasons President Obama nominated him Friday to be the next director of the FBI.

There's one very big problem with describing Comey as some sort of civil libertarian: some facts suggest otherwise. While Comey deserves credit for stopping an illegal spying program in dramatic fashion, he also approved or defended some of the worst abuses of the Bush administration during his time as deputy attorney general. Those included torture, warrantless wiretapping, and indefinite detention.On 30 December 2004, a memo addressed to James Comey was issued that superseded the infamous memo that defined torture as pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure". The memo to Comey seemed to renounce torture but did nothing of the sort. The key sentence in the opinion is tucked away in footnote 8. It concludes that the new Comey memo did not change the authorizations of interrogation tactics in any earlier memos.In short, the memo Comey that approved gave a thumbs-up on waterboarding, wall slams, and other forms of torture – all violations of domestic and international law.

FBI agents say the bureau is alarmed over Director James Comey deciding not to suggest that the Justice Department prosecute Hillary Clinton over her mishandling of classified information. According to an interview transcript given to The Daily Caller, provided by an intermediary who spoke to two federal agents with the bureau last Friday, agents are frustrated by Comey’s leadership.

“This is a textbook case where a grand jury should have convened but was not. That is appalling,” an FBI special agent who has worked public corruption and criminal cases said of the decision. “We talk about it in the office and don’t know how Comey can keep going.” The agent was also surprised that the bureau did not bother to search Clinton’s house during the investigation. “We didn’t search their house. We always search the house. The search should not just have been for private electronics, which contained classified material, but even for printouts of such material,” he said. “There should have been a complete search of their residence,” the agent pointed out. “That the FBI did not seize devices is unbelievable. The FBI even seizes devices that have been set on fire.” Another special agent for the bureau that worked counter-terrorism and criminal cases said he is offended by Comey’s saying: “we” and “I’ve been an investigator.”

After graduating from law school, Comey became a law clerk to a U.S. District Judge in Manhattan and later became an associate in a law firm in the city. After becoming a U.S. Attorney in the Southern District of New York, Comey’s career moved through the U.S. Attorney’s Office until he became Deputy Attorney General during the George W. Bush administration. After Bush left office, Comey entered the private sector and became general counsel and Senior Vice President for Lockheed Martin, among other private sector posts. President Barack Obama appointed him to FBI director in 2013 replacing out going-director Robert Mueller. “Comey was never an investigator or special agent. The special agents are trained investigators and they are insulted that Comey included them in ‘collective we’ statements in his testimony to imply that the SAs agreed that there was nothing there to prosecute,” the second agent said. “All the trained investigators agree that there is a lot to prosecuted but he stood in the way.” He added, “The idea that [the Clinton/e-mail case] didn’t go to a grand jury is ridiculous.” According to Washington D.C. attorney Joe DiGenova, more FBI agents will be talking about the problems at bureau and specifically the handling of the Clinton case by Comey when Congress comes back into session and decides to force them to testify by subpoena.

For all the focus on the NSA of late, a few folks have been trying to remind everyone that the FBI is heavily involved in all of this and, in many ways, has an equally bad if not worse record in abusing the rights of Americans. Many of the programs discussed were to retrieve information by the FBI or the NSA, and it turns out that the FBI often does much of the dirty work for the NSA, including interfacing with various companies to get access to data. We'd mentioned recently how the FBI was pushing tech companies to install "port readers" at both telco and tech companies (though, many tech firms were resisting), and also that the FBI had been ramping up their use of malware. Shane Harris, over at Foreign Policy has a nice profile on the FBI's Data Intercept Technology Unit, or DITU, who handles most of this work. It repeats the story of the port readers, but adds how the DITU is often the unit that works with tech companies and then passes info along to the NSA -- so some companies don't even realize they're dealing with the NSA, believing it's just via the FBI (not that this would make things any better). It also notes that the DITU tends to be made up of a lot of ex-telco guys who know very specifically how the telco networks work, something that at least some people at the telcos may be uncomfortable with the government knowing (though, again, the telcos seem much more willing to open up to the government than the tech companies).

It's an interesting profile all around, but at the end it gets even more interesting, as an ex-law enforcement source that Harris talks to highlights that without investigating what the DITU is up to, Congress' exploration of what's going on will be very incomplete. The former law enforcement official said Holder and Mueller should have offered testimony and explained how the FBI works with the NSA. He was concerned by reports that the NSA had not been adhering to its own minimization procedures, which the Justice Department and the FBI review and vouch for when submitting requests to the Foreign Intelligence Surveillance Court. "Where they hadn't done what was represented to the court, that's unforgivable. That's where I got sick to my stomach," the former law enforcement official said. "The government's position is, we go to the court, apply the law -- it's all approved. That makes for a good story until you find out what was approved wasn't actually what was done." That makes it sound like even more bad behavior is going to be revealed eventually...

A top federal court on Wednesday ruled that people held for months on end for immigration violations following Sept. 11, 2001, can sue top government officials for racial profiling and other abuses.The split decision from a three-judge panel on the Second Circuit Court of Appeals comes after more than a decade of litigation, and could lead to increased scrutiny on the government’s behavior following the 2001 terror attack.  ADVERTISEMENT“We simply cannot conclude at this stage that concern for the safety of our nation justified the violation of the constitutional rights on which this nation was built,” Judges Rosemary Pooler and Richard Wesley wrote in their 109-page decision.“The question at this stage of the litigation is whether the [eight foreigners arrested on immigration charges] have plausibly pleaded that the [government officials] exceeded the bounds of the Constitution in the wake of 9/11,” they wrote. “We believe that they have.”

After being arrested for immigration charges such as overstaying a visa or working without legal authorization after 9/11, the men were held from between three to eight months in New York or New Jersey. The men, who are all Arab or South Asian, were detained for being “suspected terrorists” and claim that they were abused by prison guards and subjected to extended solitary confinement.In 2002, they filed a class action lawsuit againt then-Attorney General John Ashcroft, then-FBI Director Robert Mueller and other federal and local law enforcement officials.Wednesday’s decision allows that suit to go forward.“The Constitution defines the limits of the Defendants’ authority,” the two judges wrote, “detaining individuals as if they were terrorists, in the most restrictive conditions of confinement available, simply because these individuals were, or appeared to be, Arab or Muslim exceeds those limits.”

The lawsuit is Turkmen v. Ashcroft.

I’ve written at some length in the past about judicial hostility to damages suits brought by victims of allegedly unlawful post-9/11 counterterrorism policies. I may have to rethink some of that analysis in light of this morning’s landmark ruling by the Second Circuit in Turkmen v. Hasty, the class action arising out of the post-September 11 roundup and detention of certain groups of immigrants in and around New York. In a nutshell (given that the majority opinion runs to 109 pages), Judges Rosemary Pooler and Ronald Wesley (Clinton and George W. Bush appointees, respectively) hold that (1) Bivens provides a cause of action for damages for the plaintiffs’ Fourth Amendment strip-search, Fifth Amendment substantive due process, and Fifth Amendment equal protection claims (albeit not their free exercise claim); (2) the facts alleged in the complaint are sufficient to overcome Iqbal; and (3) five former federal officials, including Attorney General John Ashcroft, FBI Director Robert Mueller, INS Commissioner James Ziglar, MDC Warden Dennis Hasty, and Associate Warden James Sherman, are not entitled to qualified immunity on the plaintiffs’ policy-challenging allegations of punitive and discriminatory confinement and unreasonable strip searches.

As Judge Raggi describes in her 91-page dissent, the majority nevertheless narrows the class of plaintiffs to only (1) those non-citizens confined in the MDC’s most restrictive housing unit; and (2) for restrictive confinement after the defendants allegedly learned that the plaintiffs were being detained without individualized suspicion of their connection to terrorism. But it’s still by far the most plaintiff-friendly circuit ruling in a post-9/11 damages suit. In her words, “Today, our court becomes the first to hold that a Bivens action can be maintained against the nation’s two highest ranking law enforcement officials . . . for policies propounded to safeguard the nation in the immediate aftermath of the infamous al Qaeda terrorist attacks of September 11, 2001.” There’s surely a lot more to say about the 200 pages of opinions in this case–and the analyses of Bivens and qualified immunity, in particular. For that reason, among others, I suspect this is not the last we’ll hear of it…

Director of National Intelligence James Clapper has won the infamous Rosemary Award for worst open government performance in 2013, according to the citation published today by the National Security Archive at www.nsarchive.org. Despite heavy competition, Clapper's "No, sir" lie to Senator Ron Wyden's question: "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" sealed his receipt of the dubious achievement award, which cites the vastly excessive secrecy of the entire U.S. surveillance establishment. The Rosemary Award citation leads with what Clapper later called the "least untruthful" answer possible to congressional questions about the secret bulk collection of Americans' phone call data. It further cites other Clapper claims later proved false, such as his 2012 statement that "we don't hold data on U.S. citizens." But the Award also recognizes Clapper's fellow secrecy fetishists and enablers, including:

Gen. Keith Alexander, director of the NSA, for multiple Rose Mary Woods-type stretches, such as (1) claiming that the secret bulk collection prevented 54 terrorist plots against the U.S. when the actual number, according to the congressionally-established Privacy and Civil Liberties Oversight Board (PCLOB) investigation (pp. 145-153), is zero; (2) his 2009 declaration to the wiretap court that multiple NSA violations of the court's orders arose from differences over "terminology," an explanation which the chief judge said "strains credulity;" and (3) public statements by the NSA about its programs that had to be taken down from its website for inaccuracies (see Documents 78, 85, 87 in The Snowden Affair), along with public statements by other top NSA officials now known to be untrue (see "Remarks of Rajesh De," NSA General Counsel, Document 53 in The Snowden Affair).

Robert Mueller, former FBI director, for suggesting (as have Gen. Alexander and many others) that the secret bulk collection program might have been able to prevent the 9/11 attacks, when the 9/11 Commission found explicitly the problem was not lack of data points, but failing to connect the many dots the intelligence community already had about the would-be hijackers living in San Diego. The National Security Division lawyers at the Justice Department, for misleading their own Solicitor General (Donald Verrilli) who then misled (inadvertently) the U.S. Supreme Court over whether Justice let defendants know that bulk collection had contributed to their prosecutions. The same National Security Division lawyers who swore under oath in the Electronic Frontier Foundation's Freedom of Information Act lawsuit for a key wiretap court opinion that the entire text of the opinion was appropriately classified Top Secret/Sensitive Compartmented Information (release of which would cause "exceptionally grave damage" to U.S. national security). Only after the Edward Snowden leaks and the embarrassed governmental declassification of the opinion did we find that one key part of the opinion's text simply reproduced the actual language of the 4th Amendment to the U.S. Constitution, and the only "grave damage" was to the government's false claims.

The Patriot Act continues to wreak its havoc on civil liberties. Section 213 was included in the Patriot Act over the protests of privacy advocates and granted law enforcement the power to conduct a search while delaying notice to the suspect of the search. Known as a “sneak and peek” warrant, law enforcement was adamant Section 213 was needed to protect against terrorism. But the latest government report detailing the numbers of “sneak and peek” warrants reveals that out of a total of over 11,000 sneak and peek requests, only 51 were used for terrorism. Yet again, terrorism concerns appear to be trampling our civil liberties. Throughout the Patriot Act debate the Department of Justice urged Congress to pass Section 213 because it needed the sneak and peak power to help investigate and prosecute terrorism crimes “without tipping off terrorists.” In 2005, FBI Director Robert Mueller continued the same exact talking point, emphasizing sneak and peek warrants were “an invaluable tool in the war on terror and our efforts to combat serious criminal conduct.”

What do the reports reveal? Two things: 1) there has been an enormous increase in the use of sneak and peek warrants and 2) they are rarely used for terrorism cases. First, the numbers: Law enforcement made 47 sneak-and-peek searches nationwide from September 2001 to April 2003. The 2010 report reveals 3,970 total requests were processed. Within three years that number jumped to 11,129. That's an increase of over 7,000 requests. Exactly what privacy advocates argued in 2001 is happening: sneak and peak warrants are not just being used in exceptional circumstances—which was their original intent—but as an everyday investigative tool.

Second, the uses: Out of the 3,970 total requests from October 1, 2009 to September 30, 2010, 3,034 were for narcotics cases and only 37 for terrorism cases (about .9%). Since then, the numbers get worse. The 2011 report reveals a total of 6,775 requests. 5,093 were used for drugs, while only 31 (or .5%) were used for terrorism cases. The 2012 report follows a similar pattern: Only .6%, or 58 requests, dealt with terrorism cases. The 2013 report confirms the incredibly low numbers. Out of 11,129 reports only 51, or .5%, of requests were used for terrorism. The majority of requests were overwhelmingly for narcotics cases, which tapped out at 9,401 requests.

Senate Republicans are reportedly banking on the testimony of a "secret informant" to deepen their investigation into Hillary Clinton's role in the 2010 sale of uranium assets to Russia, Reuters reported Thursday. The GOP's source — a former FBI informant and lobbyist for the U.S.-based unit of Rosatom, a Russian-owned nuclear power company — will appear before the upper chamber as part of the probe into the so-called Uranium One deal. Although the Senate committee did not reveal the witness' name, former lobbyist William D. Campbell identified himself to Reuters. "I have worked with the Justice Department undercover for several years, and documentation relating to Uranium One and political influence does exist and I have it," Campbell said. Campbell was once a "star witness" in an FBI case against a Rosatom, until his credibility and motivations as an informant were called into question by defense attorneys. President Trump has repeatedly claimed that Uranium One's sale was approved by Clinton's State Department in exchange for donations to the Clinton Foundation, and deal skeptics point to the fact that the Clinton Foundation received $145 million in donations from owners of Uranium One. In a statement to Reuters, Rosatom noted that the State Department is only one of nine government agencies that had to approve the sale.