FBI Hunted for Domestic Terrorists Without a Warrant
The FBI, without any court order, sifted through the
National Security Agency’s massive troves of foreign communications for
information on American “racially motivated violent extremists,” a newly
declassified order from the secret surveillance court details.
Even though the Foreign Intelligence Surveillance (FISA)
Court warned the FBI in 2018 that its warrant-free queries, known as backdoor
searches, were constitutionally alarming, the bureau still conducted queries
relevant to criminal investigations about, among other things “domestic
terrorism involving racially motivated violent extremists.” The court’s Judge
James E. Boasberg found what he referred to as “apparent widespread violations
of the querying standard.”
That’s the euphemistic term the bureau tends to use to
denote white supremacist violence. On one occasion, an FBI analyst ran a
multi-search-term “batch query” on Americans “in connection with predicated
criminal investigations relating to domestic terrorism” that returned 33 foreign
surveillance results.
And not only domestic terror. The FISA Court recounts
government acknowledgment that at least 40 FBI searches through the NSA’s
warrantlessly collected data involved “health care fraud, transnational
organized crime, violent gangs” and “public corruption and bribery.”
On at least one occasion, around May 2020, an FBI analyst
looked through the foreign NSA troves “to vet [a] potential source in [a]
predicated criminal investigation relating to public corruption.” Seven FBI
field offices were implicated in “these and a number of similar violations,”
according to a November 18, 2020 FISA Court opinion declassified on Monday and
signed by Boasberg.
In other words, the FBI continues to perform warrantless
searches through the NSA’s most sensitive databases—the ones the NSA is not
required to get warrants before filling with communications information—for
routine criminal investigations that are supposed to require warrants.
Doing so potentially jeopardizes an accused person’s ability
to have a fair trial since warrantlessly acquired information is supposed to be
inadmissible. The FBI claimed to the court that none of the warrantlessly
queried material “was used in a criminal or civil proceeding,” but such usage
at trial has happened before.
In general, the FBI and related agencies can query the
allegedly foreign-focused NSA communications databases for information on
Americans for a designated national-security purpose—to uncover “agents of a
foreign power,” such as spies or foreign terrorists. But none of the identified
FBI queries “was related to national security,” the Court found. Under the
relevant surveillance law, the FBI is supposed to return to the FISA Court for
a warrant to query the troves for a non-national security purpose. The Court
found the bureau did not.
The revelation of the FBI’s continuing backdoor searches
comes amid a new debate about passing new domestic terrorism laws in the wake
of the Jan. 6 Capitol riot. That’s something civil libertarians oppose. While
the seminal 2008 surveillance expansion known as Section 702 is predicated in
large part on permitting NSA to intercept communications from suspected
terrorists, the U.S. has only designated foreign entities as terrorists, not
domestic ones. For the FBI to search for “racially motivated violent
extremists” in NSA dragnets is to risk bypassing congressional debate and
expanding the bureau’s remit unilaterally and secretly.
The FBI searches that the FISA Court flagged as alarming
occurred before the January 6 insurrection, in the final year of Donald Trump’s
presidency.
In an opinion released in 2019, the Court explicitly warned
the FBI that its backdoor searches were dubious under the Fourth Amendment,
which protects people on U.S. soil against unreasonable government searches and
seizures. But this time, the Court was willing to functionally overlook the
violations, as they occurred prior to what the FISA Court described as the full
implementation of new FBI safeguards that emerged from the earlier opinion.
While the Court said that COVID-19 limited its ability to
track the FBI’s compliance, the Monday opinion called the violations “apparent[ly]
widespread,” although it did not provide much quantification. Yet it agreed to
once again approve the FBI’s querying procedures.
“The number and the nature of the reported querying
violations nonetheless suggest that ongoing monitoring and auditing will be
critical to evaluating whether the current measures are adequate,” the Court
found.
In a statement, a senior FBI official said that the
“majority of the query incidents referenced in this report occurred prior to
implementation of the FBI’s system changes and training regarding the
additional documentation requirements… The FISA Court’s opinion shows the high
standards that the government, including the FBI, is expected to meet, and
rightly so.”
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