FBI illegal use of eavesdropping powers: not just national security letters [priv]

[Declan McCullagh <declan () well com>]

So we've all heard about the FBI's misuse of national security letters. 
The Justice Department's inspector general came out with a report on 
March 9 describing "serious misuse" of the letters, which are secret 
subpoena-like documents that can be sent to businesses including banks, 
telephone companies, and ISPs:
http://www.usdoj.gov/oig/special/s0703b/final.pdf

I wrote about the inspector general's report here:
http://news.com.com/2100-1028_3-6166015.html

And in fact the inspector general, Glenn Fine, is going to be testifying 
about them in the Senate on Wednesday at 10am ET:
http://judiciary.senate.gov/hearing.cfm?id=2616

Fine showed up before a House committee on Tuesday and faced a hostile 
audience -- not that the FBI's illegal acts are his fault, mind you, but 
Bush administration officials seem oddly reluctant to testify in public 
under oath nowadays:
http://www.washingtonpost.com/wp-dyn/content/article/2007/03/20/AR2007032000921.html

The odd thing is that everyone, or nearly everyone, seems to think this 
is entirely unexpected. In fact, it's a natural consequence of giving 
the federal government more and more power over the years (national 
security letters were made much more powerful by the Patriot Act). 
Incentives matter, and the FBI has plenty of incentives to expand its 
power and surveillance ability and precious few incentives to preserve 
Americans' constitutional liberties.

To give credit to EPIC, they realized this and sent a letter to the 
Senate in June 2006 asking for more oversight:
http://www.epic.org/privacy/surveillance/sen_iob_letter.pdf

So have libertarian writers, who for years have called national security 
letters "the ultimate constitutional farce," which is about right. The 
letters represent FBI agents _authorizing themselves_ to seize 
information without bothering to get a judge's approval, after all:
http://www.lewrockwell.com/orig6/napolitano2.html

Occasionally other evidence about illegal FBI eavesdropping comes to 
light, which is what I described in an article published two days before 
the DOJ's report:
http://news.com.com/2100-1039_3-6165067.html

That article outlines how FBI agent Scott Wenther submitted a 42-page 
sworn affidavit that was intentionally designed to mislead the court 
into approving what a judge called an "illegal" wiretap. I've put the 
some of the court documents here:
http://politechbot.com/docs/fbi.agent.scott.wenther.affidavit.030607.txt
http://politechbot.com/docs/fbi.wenther.opinion.030607.pdf
http://politechbot.com/docs/fbi.wenther.defendant.brief.030607.pdf

This is of course the same federal police agency that is using our tax 
dollars to lobby Congress to mandate data retention, which should make 
us think twice about how _that_ nice part of the surveillance apparatus 
will be used and misused:
http://www.politechbot.com/2007/01/24/not-just-isps/

-Declan
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