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3. FBI Spied on Children While Using “Roving Wiretaps,” Intentionally Misled Courts on Freedom of Information Act Requests

The FBI Intelligence Oversight Board (IOB), which is responsible for reviewing the activities of the U.S. intelligence community, found one instance where the FBI spent a week monitoring children. According to the IOB report, a language specialist listening to the wiretap knew the FBI did not have the right target but continued to listen in to the children for five more days.

The report was obtained by digital-rights advocacy organization Electronic Frontier Foundation (EFF) through its FOIA Litigation for Accountable Government (FLAG) Project. The FLAG Project requested records of intelligence violations from the FBI’s use of provisions of the Patriot Act that were due to expire, particularly Section 215. The request contained evidence of “multiple reports of potential violations,” but the FBI managed to keep most of the revelations secret by redacting a significant portion of the documents requested. The FBI’s target is unknown and the aforementioned spying was only discovered after comparing the redacted documents to documents from a previous EFF Freedom of Information Act (FOIA) request.

The incident involving the FBI listening to children constitutes a “roving wiretap” violation. Roving wiretaps are wiretaps that follow the surveillance target. They are typically used when it is believed a target is changing locations to deliberately avoid electronic surveillance.

Sen. Dick Durbin, D-Ill., has said that roving wiretaps are designed to allow law enforcement to track targets who evade surveillance by “frequently changing phones.” They used to only be permitted for criminal investigations, but the Patriot Act has “insufficient checks to protect innocent Americans from unwarranted government surveillance.” Now, under the Patriot Act, the FBI does not have to know the target is present at the location being tapped.

Beyond the abuse of wiretapping, the FBI appears to be playing games with FOIA requests. It has improperly used “outside the scope” redactions to cover up misconduct.

A post by Jennifer Lynch of the EFF indicates the U.S. District Court for the Central District of California found “the FBI lied to the court about the existence of records requested” under FOIA. The FBI “materially and fundamentally misled the court” on its filings related to the case of Islamic Shura Council of S. Cal v. FBI, a case related to the FBI surveillance of the Muslim organization.

Additionally, according to the EFF, the FBI argued it was “allowed to mislead the court when it believed revealing information would ‘compromise national security.’ ”

The Court did not go along with this assertion by the FBI:

“The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.”

Section 215 of the Patriot Act, which contains the roving wiretaps provision, was recently extended by Congress, despite a bipartisan alliance that attempted to challenge the extension of expiring provisions, with little to no debate.

4. FBI Entrapment of Muslims

When David Williams’ younger brother, Lord McWilliams, was hospitalized with liver cancer early in 2009, Williams, 24, was devastated. He had spent the past two years, after serving a five-year prison sentence for selling drugs, being a father figure for McWilliams.

Williams knew he had to find a way to make money so his younger brother could get a liver transplant. In April 2009, an acquaintance named James Cromitie told him that someone named Maqsood could give him $250,000, luxury cars and financing for a barbershop if he helped carry out a terrorist attack in the United States. Williams became part of the scheme because Cromitie allegedly had a plan for getting the money without carrying out a terror plot.

Maqsood was a paid informant named Shahed Hussain, who had spent the past eight months working to get Cromitie to plant bombs at a local synagogue. Hussain had done previous work for the FBI and was involved in a controversial case against a pizza-parlor owner and local imam in Albany, N.Y.

As a report published by the Center for Human Rights and Global Justice (CHRGJ) of the New York University School of Law in May titled, “Targeted and Entrapped: Manufacturing the ‘Homegrown Threat’ in the United States,” describes, “On May 13, 2009, at the FBI’s direction, Hussain drove Cromitie, David and two others—Laguerre Payen and Onta Williams (no relation to David)—to the Bronx to conduct surveillance on various synagogues. Next, he drove them to Connecticut to look at the Stinger missile they were to use. Unbeknownst to David and the others, the weapons were fake and supplied by the FBI.”

Hussain drove Cromitie, Payen and David and Onta Williams to the Bronx on May 20. In front of the proposed targets, the FBI placed two cars. The four led by Cromitie were to place explosives in the cars’ trunks. Hussain dropped off David Williams, drove the other three men to the first car and then Hussain turned off a recording device he had been wearing. The men were arrested soon after.

The FBI raided Williams’ younger brother’s home immediately after the arrests. Williams was locked up in White Plains, where people would slip him notes calling him a terrorist. According to David’s aunt Alicia McWilliams, at the jury selection in White Plains, snipers were placed on the roof for “show,” making it seem like Williams’ trial might lead to an attempted terror attack.

McWilliams claims that Williams was “pulled into a political game. The case was directed, produced and scripted by the FBI and all they needed were puppets.”

The CHRGJ report looks at this case and two others to show the “profound toll government policies are taking on Muslim communities and families.” It details how “counterterrorism law-enforcement policies and practices are undermining U.S. human rights obligations to guarantee the rights to nondiscrimination, a fair trial and freedom of religious expression and opinion, as well as the right to an effective remedy when rights violations take place.”

Relaxed FBI guidelines have made it possible to rely on informants like Hussain. Guidelines put into place by former Attorney General Michael B. Mukasey allowed the FBI to authorize informants and other surveillance techniques “without any factual predicate or nexus to suspected criminal conduct,” which meant the FBI could have informants “gather names, e-mails and phone numbers of particularly devout mosque attendees, without any particular nexus to suspected criminal activity.” And, under former Attorney General Alberto Gonzales, guidelines were established that did not explicitly prohibit using informants to engage in entrapment.

Informants present a particular problem because they may be receiving a benefit for helping the FBI target individuals (for example, a reduction in a criminal sentence or a change in immigration status). They also may be receiving payment for their service. The “dangerous incentive structure” inevitably helps to increase the possibility of abuse of authority by the FBI. As former FBI agent Mike German says:

“If the government targets somebody based on political advocacy and can lure a few people into committing bad acts, then a successful prosecution in those cases justifies future targeting of people who are in the same position. … Whether these cases could survive an entrapment defense is not the relevant question. It’s whether it’s appropriate for the government to act in a way where they’re aggrandizing the nature of the threat. It’s just difficult to understand what the legitimate government interest is in these cases.”

Williams and the other men were found guilty in October 2010. In May of this year, a judge denied the defendants’ motions for dismissal “on the basis of outrageous government conduct and entrapment.” On June 29, three of the four men, including Williams, were sentenced to 25 years in prison. The fourth man will be sentenced separately pending the results of a psychological examination.