Memo: FBI can “suspend the law to impinge on the freedom of others”, since “we are our own counsel”


wired.com | Mar 28, 2012

By Spencer Ackerman and Noah Shachtman

The FBI once taught its agents that they can “bend or suspend the law” as they wiretap suspects. But the bureau says it didn’t really mean it, and has now removed the document from its counterterrorism training curriculum, calling it an “imprecise” instruction. Which is a good thing, national security attorneys say, because the FBI’s contention that it can twist the law in pursuit of suspected terrorists is just wrong.

“Dismissing this statement as ‘imprecise’ is a rather unsatisfying response given the very precise lines Congress and the courts have repeatedly drawn between what is and is not permissible, even in counterterrorism cases, over the past decade,” Steve Vladeck, a national-security law professor at American University, says. “It might technically be true that the FBI has certain authorities when conducting counterterrorism investigations that the Constitution otherwise forbids, but that’s good only so far as it goes.”

The reference to law-bending was noted in a letter to FBI Director Robert Mueller from Sen. Richard Durbin that Danger Room obtained. When Danger Room asked for the original document, the FBI initially declined. On Wednesday, a Bureau spokesperson relented, but refused to say who prepared the document; how long it was in circulation; and how many FBI agents, analysts and officials received its instruction.

The undated piece of instructional material (.pdf) notes that “under certain circumstances, the FBI has the ability to bend or suspend the law to impinge on the freedom of others.” Those circumstances include “the ability to gather information on individuals which would normally be protected under the U.S. Constitution through the use of FISA [the Foreign Intelligence Surveillance Act], Title 3 monitoring [general law enforcement surveillance], NSL [National Security Letter] reports, etc.”

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