FBI FISA Screw-Ups Revealed

W A S H I N G T O N, Oct. 11 -- An April 2000 memo, first reported by The Associated Press, to all FBI field offices from the Counterterrorism Division and the general counsel urged "Caution on FISA Issues."

In the memo, known in bureau-speak as an "EC" for electronic communication, were listed several examples of agents' failure to properly implement secret electronic surveillance orders issued by the Foreign Intelligence Surveillance Act Court.

Some of the examples would be laughable were they not horrifying. There had been 15 errors uncovered in just the first quarter of 2000, what Deputy General Counsel Marion "Spike" Bowman admitted to me was a "sharp spike" in a "fairly short period of time."

Thus the urgent admonition was sent out to the field, begging agents to pay closer attention, to "read carefully every FISA package and not assume that the FISA packages are similar, have the same authorities, or, have the same rules …"

Three mistakes cited:

One field office secured a FISA but it had to be implemented by a second field office. But the second office improperly videotaped a meeting "even though videotaping was not authorized in the FISA order."

A FISA covered a target's cell phone. But when the target sometime later gave up his cell phone, the phone number was assigned to a new person. "The new owner of the cell phone spoke a language other than the language spoken by the target … When the language specialist listened to the FISA tape, and heard a new language, the specialist reported it to the agent working the case." Nevertheless, no action was taken. "The new owner of the cell phone number was therefore the target of unauthorized electronic surveillance for a substantial period of time."

A FISA allowed for the interception of a target's e-mail. However, "[w]hen time came to renew the FISA, the field office decided to omit e-mail coverage since the coverage was not productive." The new order therefore did not include e-mail coverage, but the field office continued to intercept it anyway.

When I spoke with Bowman, he made clear that the above instances were separate from the errors of which the FISA court had complained; those had to do with errors in the original applications for an order, whereas these were failures of implementation.

In his letter to Rep. William Delahunt, D-Mass., who first revealed the EC, Bowman had written:

"After a painstaking review of the root causes of these errors, we found that the single most common problem was the distance (both literal and figurative) between the field agents running a case and the courts, coupled with many intermediaries writing the facts of these cases. To minimize the possibility for errors we instituted new procedures that would help ensure both accuracy and oversight."

Bowman told me that "by far the biggest problem is overruns" — that is, the order has expired but the recording continues. Sometimes there's an equipment failure, but sometimes the provider neglects to turn it off; some surveillance is run mechanically but other is run by the provider. Bowman says it doesn't happen often, maybe 10 times a year; he could only think of two occurrences so far this year.