Read the FBI Memo: Agents Can ‘Suspend the Law’
By Spencer Ackerman and Noah Shachtman
March 28, 2012 4:40 pm
“Dismissing this statement as ‘imprecise’ is a rather unsatisfying response given the very precise lines Congress and the courts have repeatedly drawn between what is and is not permissible, even in counter-terrorism cases, over the past decade,” Steve Vladeck, a national-security law professor at American University, says. “It might technically be true that the FBI has certain authorities when conducting counter-terrorism investigations that the Constitution otherwise forbids, but that’s good only so far as it goes.”
The reference to law-bending was noted in a letter to FBI Director Robert Mueller from Sen. Richard Durbin that Danger Room obtained. When Danger Room asked for the original document, the FBI initially declined. On Wednesday, a Bureau spokesperson relented, but refused to say who prepared the document; how long it was in circulation; and how many FBI agents, analysts and officials received its instruction.
The undated piece of instructional material (.pdf) notes that “under certain circumstances, the FBI has the ability to bend or suspend the law to impinge on the freedom of others.” Those circumstances include “the ability to gather information on individuals which would normally be protected under the U.S. Constitution through the use of FISA [the Foreign Intelligence Surveillance Act], Title 3 monitoring [general law enforcement surveillance], NSL [National Security Letter] reports, etc.”
Some surveillance experts were confused by that explanation. Surveillance under the Foreign Intelligence Surveillance Act or so-called “Title-3″ law-enforcement surveillance requires the approval of judges. National Security Letters — administrative subpoenas for records issued by FBI officials, not judges — are troubling to civil libertarians, as the practice is rife for abuse, but the issuance of the letters themselves is legal. In other words, there shouldn’t be any suspension of the law.
“This certainly does not read as if a lawyer wrote it,” says Robert Chesney, a national-security expert at the University of Texas’ law school. “Congress has given the FBI the authority to wiretap, collect business records, and gather other forms of information for intelligence purposes, subject to certain safeguards. It is a severe misstatement to refer to the exercise of these lawful authorities as ‘bending’ or ‘suspending’ the law; that mischaracterization runs the risk of both delegitimizing these lawful tools and, simultaneously, conveying to agents the mistaken impression that there might be some more general power to disobey the law during intelligence investigations.”
The FBI discovered the document, removed it from its curriculum, and allowed aides to the Senate Judiciary Committee to examine it as part of a six-month review into improper counterterrorism training spurred by Danger Room’s reporting. It was among hundreds of pages of training material — out of 160,000 reviewed, the FBI says — that the FBI took out of circulation for “imprecision”; inaccuracy; reliance on racial, ethnic or religious stereotypes; or conflating illegal behavior with constitutionally protected activities. No FBI official responsible for any of the discarded training material received disciplinary action.