For 7 Years, FBI Defied Law for Seeking a Person’s Records Under Patriot Act

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A Justice Department inspector general’s report shows that for seven years the Federal Bureau of Investigation violated statutory law designed to restrict the agency’s surveillance power. During this period, the agency sought individuals’ records under the business records provision of the PATRIOT Act without adopting proper “minimization procedures” to protect privacy of US persons.

The FBI’s use of orders under Section 215 between 2007 and 2009 was examined by the inspector general. Whether the FBI complied with recommendations the inspector general made back in March 2008.

Section 215 makes it possible for the government to obtain “any tangible things,” such as books, records and other items from a business, organization or entity. They are supposed to be “relevant” to an “authorized investigation to obtain foreign intelligence information not concerning a US person or to protect against international terrorism or clandestine intelligence activities.” But the standard for relevance is very low.

The Section 215 provision is set to expire on June 1, and, as Senator Rand Paul comprehensively outlined while he held the Senate floor for over ten hours, there are many reasons to not reauthorize the provision. This report, which was completed eleven months ago but is dated May 2015, adds substantially to those reasons.

Under the PATRIOT Improvement and Reauthorization Act of 2005, the law required that certain “minimization procedures” be adopted to ensure the handling of US persons’ data was done appropriately. It was not until March 7, 2013, that the Attorney General and the Justice Department officially incorporated these procedures into requests for records. (Marcy Wheeler points out the Justice Department did not actually fully comply with legally required procedures until after NSA whistleblower Edward Snowden disclosed information.)

“The Attorney General’s and the [Justice] Department’s actions came 7 years after such procedures were required by the Reauthorization Act and 5 years after we concluded the interim procedures in 2006 were deficient,” the inspector general’s report [PDF] indicates.

In an understatement, the inspector general declares that the Justice Department “should have met its statutory obligation considerably earlier than March 2013.”

The report suggests that FBI personnel have made “strategic use of the legislative and technological changes by broadening the scope of materials sought in applications. Section 215 authority is not limited to requesting information related to the known subjects of specific underlying investigations. The authority is also used in investigations of groups comprised of unknown members and to obtain information in bulk concerning persons who are not the subjects of or associated with any FBI investigation.”

That seems hugely significant. FBI personnel are permitted to request records of persons who are not subjects of underlying investigations. The FBI uses the PATRIOT Act to request records on people when they do not even have an FBI investigation into those individuals.

FBI personnel with authorized access are apparently permitted to engage in some action involving records, which the Justice Department believes must keep secret. This action is used to determine whether records “reasonably appear to be foreign intelligence information, necessary to understand foreign intelligence information or evidence of a crime.”

National Security Division attorneys in the Justice Department and FBI case agents provided the inspector general with a “range of examples of material that would qualify under this criteria.” It is impossible for the public to know what this means because the Justice Department had it censored in the report.

Another term the FBI has conjured to expand its surveillance powers is “investigative value.” This is a term the inspector general discovered the FBI had introduced for allowing case agents “unconnected with the underlying investigation access to material received in response” to a Section 215 order. However, what “investigative value” means to the FBI and just how it stretches the boundaries of what the agency is authorized to do is anyone’s guess because, again, the agency’s definition is censored in the released report.

The “type of information that is categorized as metadata will likely continue to evolve and expand,” the report acknowledges. The FBI is obtaining “large collections of metadata,” which is data about the records but not the exact content from the records themselves. “Electronic communication transaction information” and two other types of data, which the FBI does not want the public to know about, are being sought through this provision of the PATRIOT Act. (more…)

CIA Investigation Minimizes Use of Drugs on Rendition & Black Site Detainees

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The CIA has released documents regarding a 2008 Inspector General (IG) investigation into the use of “mind-altering” drugs to enhance or facilitate interrogations undertaken as part of their rendition, “black site” detention, and interrogation-torture (RDI) program. Not surprisingly, a brief investigation found, according to a January 29, 2009 newly declassified letter sent from the CIA IG to Senator Dianne Feinstein, then-chair of the Senate Select Committee on Intelligence (SSCI), that CIA had not used any drugs on detainees for the purpose of interrogations.

The documents were released to Jason Leopold at VICE News, who posted a comprehensive article examining them earlier today. Leopold and I have previously written on the subject of drugging prisoners, and examined an earlier Department of Defense IG report on the subject a few years ago, as well as the use of mefloquine at Guantanamo, about which more below.

The CIA Inspector General, John L. Helgerson, referred Feinstein to a statement by the Director of CIA’s Office of Medical Services (OMS), to the effect that “no ‘mind-altering’ drugs were administered to facilitate interrogations and debriefings because no medications of any kind were used for that purpose.”

But as we shall see, there were many claims by prisoners of drugging during CIA renditions, and later by affiliated “liaison” government officials. Other prisoners claimed they were drugged during the time they were held by CIA itself at their black site prisons. None of those charges were addressed by Helgerson in his investigation, unless they were part of a 5-page section of the new CIA document release that was totally whited out by the CIA FOIA officials.

No CIA detainees were evidently ever interviewed as part of the IG investigation.

Helgerson said that he queried IG investigators working on another investigation of abuse claims by 16 high-value detainees then held at Guantanamo. The alleged abuse concerned treatment by CIA before the detainees were transferred to Guantanamo in 2006. Helgerson said the investigators had no knowledge of “the use of ‘mind-altering’ drugs as a part of the interrogation regimen.” Nothing is known about this IG investigation on detainee complaints.

Helgerson, who is now retired, did refer in his letter to Feinstein to the May 2004 CIA IG report that examined “isolated allegations of mistreatment or abuse of detainees, though he never specifically states that there were no claims of drugging in that “comprehensive review.”

Helgerson said that the CIA IG had investigated “a variety of specific unrelated detainee abuse allegations” since the 2004 report.

MKULTRA, KUBARK, and Phoenix

The issue of CIA drugging of prisoners has historical resonance since CIA engaged in a decades-long program of experimentation on the use of “truth serums” and other drugs, including LSD, for use in interrogations. Known under various acronyms, including Bluebird, MKDELTA and MKSEARCH, the program was best known in popular accounts as MKULTRA. The CIA’s KUBARK interrogation manual from the early 1960s drew specifically upon MKULTRA research when it advocated use of “narcosis” or the use of drugs for interrogations.

The latest version of the KUBARK manual (PDF), released to me last year after a Mandatory Declassification Request, showed a much heavier emphasis on the use of foreign “liaison” agencies for detention of CIA prisoners than had been previously revealed.

The CIA’s 1983 Human Resource Exploitation Training Manual also describes such liaison relationships in some depth, in addition to a discussion of using drugs during interrogation. According to National Security Archive, “The manual was used in numerous Latin American countries as an instructional tool by CIA and Green Beret trainers between 1983 and 1987 and became the subject of executive session Senate Intelligence Committee hearings in 1988 because of human rights abuses committed by CIA-trained Honduran military units.”

This aspect of the CIA’s program both before and after 9/11 has probably had the least amount of emphasis in the press, for partly understandable reasons, as the actions of police or intelligence agencies in foreign countries is least penetrable or open to examination by government or human rights agency, not to mention journalists. (more…)