The FBI Is Offended How The Press Portrays Its Deceptive Techniques

[Mike]

The last few weeks have revealed a bunch of deceptive practices by law enforcement -- mainly the FBI. First, there was the revelation that the FBI had impersonated an online news story to install malware in trying to track a high school bomb threat. Then, there was a story from a couple of weeks ago about the FBI turning off internet access at some luxury villas in Las Vegas, and then acting as repair technicians to get inside and search the place (while filming everything). That was a story we had hoped to cover, but hadn't yet gotten to it. However, after the NY Times editorial board slammed that operation, FBI Director James Comey wrote a reply defending the FBI's "use of deception."

First, Comey defends the fake news story, noting that it was perfectly legal... under "Justice Department and FBI guidelines at the time." As Scott Greenfield notes, this is the "Nixon answer" to questions of illegality by the executive branch:

By Comey’s hand, he defines lawful as approved by the Department of Justice and FBI. To put this less tactfully, it’s lawful if he says it’s lawful. It’s the executive branch Nixon answer, that the president can commit no crime because he’s the president.

Comey also defends the practice because it worked, as if that's the justification needed:

In 2007, to solve a series of bomb threats and cyberattacks directed at a Seattle-area high school, an F.B.I. agent communicated online with the anonymous suspect. Relying on an agency behavioral assessment that the anonymous suspect was a narcissist, the online undercover officer portrayed himself as an employee of The Associated Press, and asked if the suspect would be willing to review a draft article about the threats and attacks, to be sure that the anonymous suspect was portrayed fairly.

The suspect agreed and clicked on a link relating to the draft “story,” which then deployed court-authorized tools to find him, and the case was solved. No actual story was published, and no one except the suspect interacted with the undercover “A.P.” employee or saw the fake draft story. Only the suspect was fooled, and it led to his arrest and the end of a frightening period for a high school.

Except, of course, all sorts of illegal and privacy-invasive investigative techniques may work to catch criminals, but we don't allow them, because of the impact on everyone else. That's what the whole 4th Amendment is about. And basic concepts like protecting privacy. Yes, we'd catch more criminals if the FBI had mandated microphones and cameras in everyone's house, but we don't allow that because it goes too far. The fact that "it works" makes no comment on whether or not it's appropriate or legal.

As for the Vegas sting using fake internet technicians, Comey's response there is even more pathetic, chiding the press for reporting on public filings in the court case before the Justice Department has responded:

The Las Vegas case is still in litigation, so there is little we can say, but it would have been better to wait for the government’s response and a court decision before concluding that the F.B.I. engaged in abusive conduct.

Marcy Wheeler has the best response to that, highlighting how the FBI, in this very same case (but it's also true in lots of high-profile FBI cases) put out press releases that only gave its side of the story, and claimed things as fact that were misleading and inaccurate -- but didn't seem to have any problem with the press taking its one side of the story without considering the response from the accused:

Jim Comey thinks the press shouldn’t report on this until after the government has had its shot at rebuttal? Does he feel the same about the army of FBI leakers who pre-empt defense cases all the time? Does Comey think it improper for his FBI to have released this press release, upon defendant Wei Seng Phua’s arrest, asserting that he is a member of organized crime as a fact and mentioning a prior arrest (not a conviction) that may or may not be deemed admissible to this case?

According to the criminal complaint, Wei Seng Phua, is known by law enforcement to be a high ranking member of the 14K Triad, an Asian organized crime group. On or about June 18, 2013, Phua was arrested in Macau, along with more than 20 other individuals, for operating an illegal sport book gambling business transacting illegal bets on the World Cup Soccer Tournament. Phua posted bail in Macau and was released. 

I didn’t see the FBI Director complaining about press stories, written in response to the press release, reported before the defense had been able to present their side.

And, so, apparently, not only does the FBI director think it's proper to use deceptive practices if "it works," he also thinks that the press should only report on the FBI's side of the story, furthering the deceptive practices with what's effectively propaganda. The use of deception by law enforcement is already questionable enough. Asking the press to be a willing participant in that deception is simply ridiculous.

Originally Published: Mon, 10 Nov 2014 18:45:00 GMT
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