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FBI's abuse of the surveillance state is the real scandal needing investigation

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Headlined to H1 11/14/12

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Cross-posted from The Guardian

That the stars of America's national security establishment are being devoured by out-of-control surveillance is a form of sweet justice

General John Allen
General John Allen, the US's leading military commander in Afghanistan, is being investigated over his 'communications' with Jill Kelley. (Photograph: Jalil Rezayee/EPA)

The Petraeus scandal is receiving intense media scrutiny obviously due to its salacious aspects, leaving one, as always, to fantasize about what a stellar press corps we would have if they devoted a tiny fraction of this energy to dissecting non-sex political scandals (this unintentionally amusing New York Times headline from this morning -- "Concern Grows Over Top Military Officers' Ethics" -- illustrates that point: with all the crimes committed by the US military over the last decade and long before, it's only adultery that causes "concern" over their "ethics"). Nonetheless, several of the emerging revelations are genuinely valuable, particularly those involving the conduct of the FBI and the reach of the US surveillance state.

As is now widely reported, the FBI investigation began when Jill Kelley -- a Tampa socialite friendly with Petraeus (and apparently very friendly with Gen. John Allen, the four-star U.S. commander of the war in Afghanistan) -- received a half-dozen or so anonymous emails that she found vaguely threatening. She then informed a friend of hers who was an FBI agent, and a major FBI investigation was then launched that set out to determine the identity of the anonymous emailer.

That is the first disturbing fact: it appears that the FBI not only devoted substantial resources, but also engaged in highly invasive surveillance, for no reason other than to do a personal favor for a friend of one of its agents, to find out who was very mildly harassing her by email. The emails Kelley received were, as the Daily Beast reports, quite banal and clearly not an event that warranted an FBI investigation:

"The emails that Jill Kelley showed an FBI friend near the start of last summer were not jealous lover warnings like 'stay away from my man,' a knowledgeable source tells The Daily Beast. . . .

"'More like, 'Who do you think you are? . . .You parade around the base . . . You need to take it down a notch,'" according to the source, who was until recently at the highest levels of the intelligence community and prefers not to be identified by name.

"The source reports that the emails did make one reference to Gen. David Petraeus, but it was oblique and offered no manifest suggestion of a personal relationship or even that he was central to the sender's spite. . . .

"When the FBI friend showed the emails to the cyber squad in the Tampa field office, her fellow agents noted the absence of any overt threats.

"No, 'I'll kill you' or 'I'll burn your house down,' the source says. 'It doesn't seem really that bad.'

"The squad was not even sure the case was worth pursuing, the source says.

"'What does this mean? There's no threat there. This is against the law?' the agents asked themselves by the source's account.

"At most the messages were harassing. The cyber squad had to consult the statute books in its effort to determine whether there was adequate legal cause to open a case.

"'It was a close call,' the source says.

"What tipped it may have been Kelley's friendship with the agent."

That this deeply personal motive was what spawned the FBI investigation is bolstered by the fact that the initial investigating agent "was barred from taking part in the case over the summer due to superiors' concerns that he was personally involved in the case" -- indeed, "supervisors soon became concerned that the initial agent might have grown obsessed with the matter" -- and was found to have "allegedly sent shirtless photos" to Kelley, and "is now under investigation by the Office of Professional Responsibility, the internal-affairs arm of the FBI."

[The New York Times this morning reports that the FBI claims the emails contained references to parts of Petraeus' schedule that were not publicly disclosed, though as Marcy Wheeler documents, the way the investigation proceeded strongly suggests that at least the initial impetus behind it was a desire to settle personal scores.]

What is most striking is how sweeping, probing and invasive the FBI's investigation then became, all without any evidence of any actual crime -- or the need for any search warrant:

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For the past 10 years, I was a litigator in NYC specializing in First Amendment challenges, civil rights cases, and corporate and securities fraud matters. I am the author of the New York Times Best-Selling book, more...)
 
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"  it certainly should be investigated to det... by BFalcon on Wednesday, Nov 14, 2012 at 7:53:53 AM
FBI should not do international, CIA should not do... by Steven G. Erickson on Wednesday, Nov 14, 2012 at 9:47:25 AM
Broadwell's public comments about Libyan prisoners... by molly cruz on Thursday, Nov 15, 2012 at 11:36:42 AM
I doubt people realize how common this is. Th... by Ian MacLeod on Saturday, Nov 17, 2012 at 9:38:25 PM
Will share with others.... by Laura Stein on Saturday, Nov 17, 2012 at 10:44:33 PM