FBI FISA Screw-Ups Revealed

W A S H I N G T O N, Oct. 11, 2002 -- 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.

The violations are reportable to the Intelligence Oversight Board and the congressional intelligence committees if the cause was individual negligence. The April 2000 EC was sent out because of the "sharp spike" over the norm, along with some additional guidance on implementing FISA's. But Bowman said the 15 errors during that time had not revealed any pattern; they occurred across many offices and did not reflect any systemic cause.

Delahunt's concerns, however, are far from assuaged. He is particularly concerned because he's a member of the House Judiciary Committee, which, along with its Senate counterpart, spent a great deal of time about a year ago considering what became the Patriot Act. Nevertheless, these problems in implementing FISAs — problems that included invasive surveillance of innocent parties — had not been reported to the committee at that time, as Delahunt believes they should have been.

Delahunt's spokesman, Steve Schwadron, told me that "what was under consideration was an expansion" of Justice's powers under FISA, a lowering of the wall between intelligence-gathering and criminal prosecution. "The Justice Department got substantially what it wanted, based on incomplete information."

Schwadron acknowledged the FBI's assurances that the problems have now been dealt with, but pointed out there's no way to know for sure because no one has been given the opportunity to review it.

He said the committee has no interest in meddling in micro-detail, and "of course, we all make mistakes … but the fact is, we don't know" what the situation is. "This was not an extraneous question, this was the focus of special concern from the dais."

The substantive changes in the law "were precisely to blur the distinction between foreign intelligence-gathering and law enforcement." But in that blurring, he said, we now learn that abuses have occurred in the past. There must be discussion by the Committee that wrote the law and authorized the expansion of how it is being implemented.

Justice's attitude that it will only provide the detailed FISA implementation information to the intelligence committee — about which Chairman James Sensenbrenner, R-Wis., and Attorney General John Ashcroft have already clashed — is also unacceptable to Delahunt, a former prosecutor.

This is not a turf question, Schwadron insisted. A bipartisan majority of the Judiciary committee insisted on sunset provisions in the new law "precisely because of these types of questions." It's not the intelligence committees that will be re-authorizing the law when it sunsets. "Congress was being asked to plow entirely new ground; these are big changes, and that's all the more reason to get it right."

Freeh at Last

This past week, former FBI Director Louis Freeh made his first real public appearance since he left office in June 2001.

At that time the bureau was arguably at its lowest ebb, buffeted by multiple scandals, mistakes and blunders, including the revelation that a longtime agent had been spying for Moscow; that documents had been improperly withheld from Oklahoma City bomber Tim McVeigh's legal team; that guns and laptops were missing and unaccounted for; and generally its computer and security systems were dysfunctional at best.

In the past year, particularly since the 9/11 attacks, there have been at least two books and numerous articles blaming Freeh for virtually everything that ever went wrong everywhere. The invitation — or summons — from the Joint Intelligence Committee was thus Freeh's opportunity to settle a few scores.

Perhaps the surprising thing is that, however tempting it might have been, he launched no attacks against anyone — including Bill Clinton.

When making his case that he had requested far more resources to combat terrorism than he had ever been granted, he lumped together requests from fiscal years 2000, 2001 and 2002, thus covering both this administration and the last. One could of course infer that his requests had not been supported by those administrations, but he delicately did not make the point explicitly. His complaints about a lack of resources were equally directed at the legislative branch.

He also took great umbrage with two points made by staff and members of the committee: that law enforcement had been more concerned with prosecution than prevention; and that the FBI had not adequately considered the possibility of an attack on U.S. soil. In addition, he argued with Rep. Ray LaHood, R-Ill., that the FBI is no longer guilty of a failure to cooperate with state and local law enforcement, and that its relations with the CIA these days are excellent.

Committee Counsel Eleanor Hill in her staff report had asserted that the FBI pre-9/11 had been guilty of "limited aggressiveness at home" with "only some field offices devoting significant resources to al Qaeda. An overall assessment of the risk to America was not prepared, and much of the FBI's counterterrorism effort was concentrated abroad."

She reported there had been "a huge gap … a lack of focus on how an international terrorist group might target the United States itself. No agency appears to have been responsible for regularly assessing the threat to the homeland."

Freeh strongly disagreed. "The FBI was focused both on preventing domestic and foreign terrorist attacks," he testified. "And I take exception to the finding that we were not sufficiently paying attention to terrorism at home."

He maintained that even before the end of 1999, "the FBI and the intelligence community clearly understood the foreign-based Al Qaeda threat regarding targets within the United States. Congress and the Executive were fully briefed as to this threat analysis" — here his prepared statement stopped but he ad-libbed, adding pointedly — "particularly the leadership and membership of these committees, in hearings, briefings … calls late at night and over the weekend were continuously apprised of this threat."

In terms of missed signals, Freeh acknowledged there may have been mistakes. But, he asserted, "Analyzing intelligence information can be like trying to take a sip of water coming out of a fire hydrant. The several bits of information, clearly connected and predictive after the fact, need to be viewed in real time. The reality is that these unquestionably important bits have been plucked from a sea of thousands and thousands of such bits at the time."

Former U.S. Attorney for the Southern District of New York Mary Jo White testified in her usual feisty way, strongly denying that her office at least ever considered prosecution a substitute for prevention. In fact, she maintained, prosecution can equal prevention.

"From my vantage point, the counterterrorism strategy of our country in the 1990s was not, as I have read in the media and heard a little bit of today, criminal prosecutions — rather, as I saw it, criminal prosecutions were one tool in our counterterrorism efforts, a tool that certainly neutralized for life a number of very dangerous international terrorists" including Ramzi Youssef and Sheik Omar Abdel-Rahman. "But none of us considered prosecutions to be the country's counterterrorism strategy, or even a particularly major part of it."

Freudian Freeh

Freeh made it clear pretty quickly that he was bound and determined to read every bit of his prepared statement. At 25 pages, it took him an hour and five minutes to read it all into the record. Well, not quite all.

Obviously feeling a bit abashed at how long he was taking, the former director decided to skip reading one section, remarking self-deprecatingly, "I'm going to skip the section on pages 89 to 102."

But for those who know his long lack of interest in computer systems, and resistance even to using e-mail, the omission certainly seemed Freudian. The one section he chose to skip reading was that on Information Technology.

As he hurriedly moved on, he admitted, "we were far behind in our ability to acquire and have funded the information technology required by a competent law enforcement and counterintelligence/counterterrorism agency. There is a long history there. I have set it out for you. I take some responsibility for the delay."

He added that the "good news" was that when he left the systems were finally on track. Some would argue it took the advent of his successor Bob Mueller, a certified computer nut, to really get things moving.

Beverley Lumpkin has covered the Justice Department for 16 years for ABCNEWS. Halls of Justice appears every Saturday.