FBI Hides Its Surveillance Techniques From Federal Prosecutors Because It's Afraid They'll Become Defense Lawyers

Legal Issues

from the code-of-silence dept

We know the FBI isn’t willing to share its investigative techniques with judges. Or defendants. Or the general public. Or Congress. The severely restrictive NDAs it forced law enforcement agencies to sign before allowing them to obtain IMSI catchers is evidence of the FBI’s secrecy. Stingray devices were being used for at least a half-decade before information starting leaking into the public domain.

The FBI doesn’t want to hand over details on its hacking tools. Nor does it want to discuss the specifics of the million-dollar technique that allowed it to break into a dead terrorist’s phone (which held nothing of interest).

USA Today’s Brad Heath has obtained documents showing the FBI’s tech secrecy extends even further than its nominal opponents (judges, defense lawyers, defendants). Its secrecy even involves freezing out other players on the same team.

A supervisor also cautioned the bureau’s “technically trained agents” in a 2003 memo not to reveal techniques for secretly entering and bugging a suspect’s home to other agents who might be forced to reveal them in court. “We need to protect how our equipment is concealed,” the unnamed supervisor wrote.

The records, released this year as part of a Freedom of Information Act lawsuit, offer a rare view of the extent to which the FBI has sought to keep its most sensitive surveillance capabilities secret, even from others within federal law enforcement.

Yes, the FBI is so determined to keep its techniques secret that it won’t even share it with high-ranking prosecutors, like Assistant US Attorneys (AUSAs). But it gets even better. The reason stated in the memo for locking out AUSAs is schadenfreuderiffic.

In case you can’t see or read the picture above, here’s what the memo says:

Over the past few months, ERF [Engineering Research Facility] has expressed concern about Tech Agents revealing technical details to Case Agents and especially to AUSAs. There have been several instances of AUSAs becoming familiar with our techniques, then resigning and becoming defense lawyers. There also is concern about retiring Agents performing investigative work for defense counsel (i.e. right here in MP).

One conclusion that could be drawn from AUSAs “becoming familiar” with FBI surveillance techniques, then switching sides to work as defense lawyers, is that the FBI’s techniques are so intrusive and pervasive that AUSAs no longer find it conscionable to act on the behalf of the FBI.

That’s not the only damning paragraph in the two-page set of responsive documents. There’s also this, which again shows the FBI openly encourages obfuscation and omission in federal courtrooms.

Over the past week, I have received two ECs [electronic communications] form the field which describe in GREAT detail surreptitious entries and special project concealments installed in the target locations. These ECs describe the equipment concealed, item in which the equipment was concealed, and where the concealments were placed. These ECs were drafted by case agents, uploaded in ACS, and placed in the case file.

TTAs [technically trained agents] should not be providing such detail to case agents. One reason TTAs do not testify is to protect our trade craft. If the case agents have this information, they will be required to reveal it during cross examination at trial. Also, an AUSA may require the EC be turned over during discovery before trial. We need to protect how our equipment is concealed and where our is concealed.

It is sufficient for the case agent to simple state that, pursuant to a court order, equipment was installed in the target location.

So, the FBI will hide information from their own case agents in order to prevent defendants from obtaining the details of the surveillance used to build a case against them. Needless to say, preventing the defense from obtaining these details also prevents judges and juries from hearing them and using those to weigh the Constitutionality of the techniques.

This secrecy undercuts defendants’ rights by denying them the opportunity to challenge the evidence or the methods used to obtain it. It also blows right by the Fourth Amendment by obfuscating the techniques used, a process that begins with search warrant affidavits that deliberately leave out essential details in order to protect the FBI’s surveillance secrets. The FBI’s cavalier attitude towards the rights of Americans traces back to the days of J. Edgar Hoover. While the agency has moved ahead in terms of technical prowess, the underlying “ends justifies the means” attitude appears unchanged.

Filed Under: defense lawyers, fbi, prosecutors, secrets, surveillance