FBI Successfully Stonewalls Inspector General Into Irrelevance By Withholding Timely Section 215 Documents

Failures

from the you-can't-oversee-what-you-can't-actually-see dept

The FBI doesn’t just stonewall FOIA requesters. It also stonewalls its in-house investigator. Remember all those deferrals to “lawful authority” and “rigorous oversight” the agency makes when not commenting on controversial surveillance programs? Those really don’t mean anything if you lock out the oversight and prevent his office from verifying whether surveillance is being carried out in accordance to laws and FBI policies.

Inspector General Michael Horowitz has been fighting a courageous, but losing, battle against FBI secrecy. As the head of the DOJ’s OIG office, you’d think FBI officials would throw a small amount of deference his way. But no. They don’t. It has obstructed his investigative work “for years,” leading to this sort of thing:

[Horowitz] said the refusal to grant routine requests stalls investigations, including a recent one on FBI material witnesses, such that officials who are under review have sometimes retired or left the agencies before the report is complete.

The FBI won’t even release an organizational chart to him. Horowitz took these complaints to Congress earlier this year in hopes of prompting FBI document production by threatening its annual budget.

Section 218 of the Appropriations Act does not permit the use of funds appropriated to the Department of Justice to deny the OIG access to records in the custody of the Department unless in accordance with an express limitation of Section 6(a) of the IG Act. The IG Act, Section 6(a), does not expressly or otherwise limit the OIG’s access to the categories of information the FBI maintains it must review before providing records to the OIG. For this reason, we are reporting this matter to the Appropriations Committees in conformity with Section 218.

This, surprisingly, failed to have any effect — not because the FBI might have deduced Horowitz was actually serious about obtaining the long-delayed documents, but because if there’s anything government agencies fear more than a loss of power, it’s a loss of funding.

Marcy Wheeler points out that — during the ruckus surrounding the expiration of Section 215 — the FBI again passed several of its self-imposed deadlines for document delivery.

The OIG has sent four letters to Congress to report that the FBI has failed to comply with Section 218 by refusing to provide the OIG, for reasons unrelated to any express limitation in Section 6(a) of the IG Act, with timely access to certain records in ongoing OIG reviews. Those reviews are:

• Two FBI whistleblower retaliation investigations, letter dated February 3, 2015, which is available here;
• The FBI documents related to review of the DEA’s use of administrative subpoenas, letter dated February 19, 2015, which is available here;
• The FBI’s use of information derived from collection of telephony metadata under Section 215 of the Patriot Act, letter dated February 25, 2015, which is available here; and
• The FBI’s security clearance adjudication process, letter dated March 4, 2015, which is available here.

As of March 31, 2015, the OIG document requests were outstanding in every one of the reviews and investigations that were the subject of the letters above.

Of particular importance is the delay of documents related to the FBI’s use of Section 215 collections. Obviously, having the chance to review this before the vote on reauthorization would have been preferable. If there were any questions about the FBI’s involvement, or its use of the collected data, these observations could have potentially played a key role in the provision’s renewal, not to mention contributed to the debate surrounding the USA Freedom Act.

Obviously, the FBI preferred to keep legislators in the dark about its participation in Section 215. An ill-informed legislature is more prone to rely on fear-mongering and other baseless assertions. With nothing stating otherwise, the FBI is free to operate under the illusion that its use of the program is by-the-book and that the program itself is effective and useful.

Horowitz is one of the few government officials willing to stand up to the FBI. Unfortunately, it hasn’t resulted in better behavior by the agency. Apparently, the FBI feels it does best with minimal oversight and isn’t inclined to let anyone — not even its in-house inspector — in on its domestic surveillance tactics.

Filed Under: doj, fbi, inspector general, michael horowitz, patriot act, public debate, section 215