By Mike German, policy counsel with the ACLU Washington Legislative Office. Before joining the ACLU, Mike was a special agent with the FBI for 16 years.

Sometime in 2006 the FBI twice asked the secret Foreign Intelligence Surveillance Court for an order seeking "tangible things" as part of a counterterrorism case.  The court denied the request, both times, "based on concerns that the investigation was premised on protected First Amendment activity."    

I was hoping that smintheus's front page post (The FBI: Retroactive blanket immunity in action) would have touched on this aspect of the story, but surprisingly there has been no discussion of the implications of the FBI General Counsel's disagreement with the FISA court about the First Amendment.  The court said that someone can not be investigated merely because they are associates with an existing subject of an investigation, because that would violate the First Amendment right to freedom of association.  The FBI illegally circumvented the court's decision, and in defending that decision, the FBI admitted that violating the right to freedom of association is a common practice. The following is from the AP story:

The Justice Department's Inspector General published a report (PDF) today on the FBI's continued abuse of National Security Letters. However the IG postponed reporting on the abuse of "blanket" NSLs. We learned about the existence of these only today from the NY Times. They're an example of how the Bush "administration" actually employs retroactive immunity to shield its own lawbreaking.

In 2006 the FBI, having issued truckloads of warrantless NSLs illegally, decided it needed a way to make all of them legal retroactively. So it did what any agency would do under this "administration" - it waved the magic wand handed over to it by Congress, and presto! The FBI simply issued "blanket" NSLs to each of the telecoms in question to justify after the fact all the records it had previously scooped up.

Senior officials of the Federal Bureau of Investigation repeatedly approved the use of "blanket" records demands to justify the improper collection of thousands of phone records, according to officials briefed on the practice...

By 2006, F.B.I. officials began learning that the bureau had issued thousands of "exigent" or emergency records demands to phone providers in situations where no life-threatening emergency existed, according to the account of Mr. Youssef, who worked with the phone companies in collecting records in terrorism investigations. In these situations, the F.B.I. had promised the private companies that the emergency records demands would be followed up with formal subpoenas or properly processed letters, but often, the follow-up material never came.

This created a backlog of records that the F.B.I. had obtained without going through proper procedures. In response, the letter said, the F.B.I. devised a plan: rather than issuing national security letters retroactively for each individual investigation, it would issue the blanket letters to cover all the records obtained from a particular phone company.

So there was no effective oversight of the use of warrantless NSLs. Nor were there any objections to the FBI granting itself blanket retroactive immunity for breaking even the nominal restrictions that Congress imposed on NSLs in the Patriot Act. In fact, the NYT quotes an FBI official saying that these blanket grants were "pure of heart" even if, you know, illegal.

Notice that this story confirms again what Kagro X has been saying: Every day of delay during the FISA debate brings further revelations about how the Bush "administration" abuses any surveillance power it's granted.

On March 5, FBI Director Robert Mueller testified to the Senate Judiciary Committee about the Inspector General's investigation into NSL abuse during 2006. He led the Senate to believe that the IG would find nothing more than a continuation of the abuses that already had been exposed for the years 2003 to 2005.

The new audit, which examines use of national security letters issued in 2006, "will identify issues similar to those in the report issued last March," Mueller told senators. The privacy abuse "predates the reforms we now have in place," he said.

"We are committed to ensuring that we not only get this right, but maintain the vital trust of the American people," Mueller said. He offered no additional details about the upcoming audit...

Several Justice Department and FBI officials familiar with the upcoming 2006 findings have said privately the new audit will show national security letters were used incorrectly at a similar rate as during the previous three years.

Funny, we heard nothing at all back then about "blanket" NSLs, either from Mueller or from those anonymous FBI officials who were being so helpful to reporters. Yet today, this scandal just emerges out of the blue...and only because it was revealed by the lawyer for an FBI whistleblower, Bassem Youssef. How many more of the Bush "administration's" secret abuses of surveillance powers remain to be exposed?

Freddie Hiatt at the Washington Post is at it again.  In today's editorial on the most recent court findings of bush administration violations of the Constitution, Freddie gives us this gem:

"These rebukes may well be an indication that the administration's overreaching has finally come back to haunt it."

(The editorial can be found here: http://www.washingtonpost.com/...

The Washington Post editorial page may be a supurating pustule of neoconservatism on the body politic, but never let it be said that it doesn't possess a finely honed facility for understatement. Two more court rulings that the bushies have flouted the constitution are mere "indications" of administration "overreaching." How perfectly Hiatt. How revealing of a bush-like disdain for the courts. How utterly dismissive of these two rulings that follow in a long line of judicial findings that the bush administration doesn't hold the bill of rights in very high regard.

This is from EFF's website.

Washington, D.C. - A judge ordered the FBI today to finally release agency records about its abuse of National Security Letters (NSLs) to collect Americans' personal information. The ruling came just a day after the Electronic Frontier Foundation (EFF) urged the judge to immediately respond in its lawsuit over agency delays.

No, actually, I did not in fact receive any such letter. I am in no position to expect to receive a national security letter. It would be ludicrous to suppose I had; I am not in possession of any information about anyone that the FBI would want to know.

But the subject of this diary is something no one who receives an NSL could legally write.

But I can. I am not under oath, I am not revealing any classified information, I am merely stating something publicly that happens not to be true. Then retracting it; I am not attempting to deceive anyone, least of all any government agency.

But what would happen if everyone who did not receive an NSL were to claim, on their blog or otherwise in a public forum, that they had?

I try to find time to cover a representative sample of the Bush administration's outrages, but seem to keep doubling back to the same kinds of scandals. A suspicious sort of person might conclude that whenever a new hint of scandal pops up, it is just the tip of something much larger and unimaginably worse than the substantial evil it appears to be.

The other day I commented on the ABC report that the government has been collecting secretly the phone records of reporters at ABC News, the NY Times, and Washington Post. Allegedly, this was intended to help the administration to track down leakers inside the CIA who'd spoken to reporters. Yes, Nixon's plumbers are back in business.

A fresh outrage surely, but which kind?