Are the Feds reading your e-mail?

Senators from both parties are accusing the U.S. Federal Bureau of Investigation (FBI) of excessive secrecy and demanding details of how federal agents use antiterrorist laws to spy on people’s Internet activity. The Domestic Surveillance Oversight Act is called “the first comprehensive, public FBI oversight effort in decades” by cosponsor Patrick Leahy, D-Vermont. He is teaming with Republican Senators Charles Grassley of Iowa and Arlen Specter of Pennsylvania to force greater accountability by investigative agencies. All three are members of the Senate Judiciary Committee.

Their legislation requires FBI and Department of Justice agents to tell how often they spy on American citizens, under powers granted by the 1978 Foreign Intelligence Surveillance Act and expanded in the Patriot Act of 2001.

The demand for a report on how the DOJ and FBI use those broader surveillance powers comes as the investigators apparently seek even more authority.

Seeking Balance

“Before we give the government more power to conduct surveillance on its own citizens, we must look at how it is using the power that it already has,” says Leahy. “Is that power being used effectively, so that our citizens not only feel safer but are in fact safer? Is that power being used appropriately, so that our liberties are not sacrificed?”

He says cities across the country have sent “clear signals” to Washington by debating or passing resolutions urging Congress to ensure a proper balance between civil liberties and government’s police and surveillance powers. Last session, two senators called for an oversight commission to balance security and privacy.

Both the Foreign Intelligence Surveillance Act and the Patriot Act expanded federal agents’ access to electronic surveillance. Under the surveillance act, investigators need only convince a special Foreign Intelligence Surveillance Court that the proposed spying target is an “agent of foreign power” as opposed to demonstrating probable cause that the individual is involved in criminal activity. The Patriot Act, rushed through Congress shortly after the 9/11 attacks, expands the powers afforded by FISA.

The Senate bill introduced Tuesday would require the attorney general to issue an annual report showing how often FISA orders were issued for U.S. citizens. It also asks how often agents monitor library computers, how they use FISA provisions in criminal court cases, and how FISA courts interpret search applications.

Agencies Rebut Charge

The DOJ calls the senators’ criticism unfair.

The DOJ says it and related agencies have reported on their investigations to Congress dozens of times since the September 11, 2001, terrorist attacks. Attorney General John Ashcroft, FBI Director Robert Mueller, and other senior Justice Department officials have provided more than 140 briefings for Congress on FISA, terrorism, and FBI reorganization, the DOJ says.

The agency also cites a comment by Royce Lamberth, former presiding judge of the FISA court. “We consistently find [FISA] applications well-scrubbed by the attorney general and his staff before they are presented to us. The process is working,” the DOJ quotes Lamberth as saying.

Other Complaints With the bill, the senators released a 37-page report. It says the FBI and DOJ are excessively secret and inadequately trained with respect to FISA provisions. Specter says the incompetence goes “straight to the top,” saying Mueller and his deputies cannot clearly define FISA standards and say what denotes “probable cause” to get warrants from a FISA court.

Grassley even says the terrorist attacks could have been averted if the FBI’s top FISA lawyer, Marion Bowman, had granted an August 2001 request to search the PC of Zacarias Moussaoui, allegedly the 20th hijacker. Grassley says Moussaoui’s computer housed a “virtual blueprint” of the attacks. Last year, Bowman received a Presidential Rank Award, which commands a bonus of 20 percent of his salary.

The senators also accuse the FBI of stifling internal criticism and oversight. They say FBI Unit Chief John Roberts was passed up for promotion after decrying a lack of accountability in the bureau’s upper levels in a CBS 60 Minutes interview.

“The lesson at the FBI still is, ‘If you mess up–do something wrong–you get promoted and you get an award. But if you speak the truth, like Roberts did, all you get is just a lot of trouble,'” Grassley says. “The result is an atmosphere of fear where no one knows which way is up or how basic legal standards might apply.”

Related Requests

The DOJ and FBI are already under similar fire from privacy rights groups nationwide.

Last fall, a federal court ordered the DOJ to answer a Freedom of Information request by the Electronic Privacy Information Center and the American Civil Liberties Union asking how often federal agents spy on Internet users, and how they are trained to do so.

“Disclosure of basic information about FISA surveillance is not going to hamper our antiterrorism efforts,” says Timothy Edgar, an ACLU lawyer. “What it will do–as is evidenced by broad support in Congress–is go a long way toward assuaging growing public mistrust of the government.”

The ACLU and EPIC are appealing the Justice Department’s response, saying the 200 pages of documents were mostly repeated or blacked-out e-mails.