The FBI has illegally shared raw intelligence about Americans with unauthorized third parties and violated other constitutional privacy protections, according to newly declassified government documents that undercut the bureau’s public assurances about how carefully it handles warrantless spy data to avoid abuses or leaks.
In his final congressional testimony before he was fired by President Trump this month, then-FBI Director James Comey unequivocally told lawmakers his agency used sensitive espionage data gathered about Americans without a warrant only when it was “lawfully collected, carefully overseen and checked.”
Once-top secret U.S. intelligence community memos reviewed by Circa tell a different story, citing instances of “disregard” for rules, inadequate training and “deficient” oversight and even one case of deliberately sharing spy data with a forbidden party.
The behavior the FBI admitted to a FISA judge just last month ranged from illegally sharing raw intelligence with unauthorized third parties to accessing intercepted attorney-client privileged communications without proper oversight the bureau promised was in place years ago.
“The Court is nonetheless concerned about the FBI’s apparent disregard of minimization rules and whether the FBI is engaging in similar disclosures of raw Section 702 information that have not been reported,” the April 2017 ruling declared.
The Justice Department inspector general’s office declassified a report in 2015 that reveals the internal watchdog had concerns as early as 2012 that the FBI was submitting ‘deficient” reports indicating it had a clean record complying with spy data gathered on Americans without a warrant.
But the FISA court watchdogs suggest FBI compliance problems began months after Section 702 was implemented.
But the IG said it reviewed the same data and easily found evidence that the FBI accessed NSA data gathered on a person who likely was in the United States, making it illegal to review without a warrant.
It called the FBI’s first oversight report “deficient” and urged better oversight.
FBI officials acknowledged there have been violations but insist they are a small percentage of the total counterterrorism and counterintelligence work its agents perform.
Others fear these blunders call into the question the bureau’s rosy assessment that it can still police itself when it comes to protecting Americans’ privacy 17 years after the war on terror began.
Lawmakers in both parties and both chambers of Congress are writing reforms behind closed door, leaving the intelligence community anxious it might lose some of the spy powers it considers essential to fighting terrorism, cyber attacks and unlawful foreign influence.
“The bottom line is the law has to be followed and when it isn’t there has to be consequence that is of significance so that it deters others from breaking the same law,” he told Circa.
But a respected former Justice Department national security prosecutor questions if the searching has gotten too cavalier. Amy Jeffress, the former top security adviser to former Attorney General Eric Holder, was appointed by the intelligence court in 2015 to give anindependent assessment of the FBI’s record of compliance.
“The FBI procedures allow for really virtually unrestricted querying of the Section 702 data in a way the NSA and CIA have restrained it through their procedures,” she argued before the court in a sealed 2015 proceeding.
The court thanked Jeffress for her thoughtful analysis but ultimately rejected her recommendation to impose on the FBI a requirement of creating a written justification why each search would help pursue a national security or criminal matter.
“If we require our agents to write a full justification every time think about if you wrote a full justification every time you used Google. Among other things, you would use Google a lot less,” a lawyer told the court.
The court’s memo suggested the FBI’s sharing of raw intelligence to third parties, at the time, had good law enforcement intentions but bad judgment and inadequate training.
“Nonetheless, the above described practices violated the governing minimization procedures,” the court chided.
A footnote in the ruling stated one instance of improper sharing was likely intentional.
The recently unsealed ruling also revealed the FBI is investigating more cases of possible improper sharing with private parties that recently have come to light.
The government “is investigating whether there have been similar cases in which the FBI improperly afforded non-FBI personnel access to raw FISA-acquired information on FBI systems,” the court warned.
Among the most serious additional concerns was the FBI’s failure for more than two years to establish review teams to ensure intercepts between targets and their lawyers aren’t violating the attorney-client privilege.
The FBI said it is trying to resolve the deficiencies with aggressive training of agents.
That admission of inadequate training directly undercut Comey’s testimony earlier this month when questioned by Sen. Dianne Feinstein, D-Calif.
The struggle for the intelligence court and lawmakers in providing future oversight will be where to set more limits without hampering counterterrorism effort
Jeffress, however, warned in her 2015 brief of another dynamic that will pose a challenge too, an FBI culture to use a tool more just because it can.
And when questioned at a subsequent hearing, Jeffress observed: “I don’t think that the FBI will voluntarily set limits on its querying procedures, because law enforcement agencies tend not to take steps to restrict or limit what they can do, for obvious reasons.”