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Program Glitch Hurt bin Laden Case

May 28, 2002 

The FBI destroyed evidence gathered in an investigation involving Osama bin Laden's network after its e-mail wiretap system mistakenly captured information to which the agency was not entitled.

The FBI software not only picked up the e-mails of its target "but also picked up e-mails on non-covered targets," said a March 2000 memo to agency headquarters in Washington.

"The FBI technical person was apparently so upset that he destroyed all the e-mail take, including the take on" the suspect, the memo said.

The episode was described in documents made public through a Freedom of Information Act request filed by the Electronic Privacy Information Center, a Washington advocacy group. The material was not included in an original release but became public after a federal judge ordered the bureau to give out more documents.

At issue was an investigation in Denver in which the FBI's bin Laden unit was using the bureau's Carnivore system to conduct electronic surveillance of a suspect under a Foreign Intelligence Surveillance Act warrant.

The suspect's name and other information identifying details of the investigation were marked out of the letter.

The memo surfaced as the FBI was addressing concerns it mishandled aspects of terrorism investigation prior to the Sept. 11 attacks. Those concerns include a warning from its Phoenix office about Arab pilots training in the United States last July.

As an outgrowth of that and other much-criticized FBI actions before the attacks, the agency is to form a new office of intelligence and strengthen its oversight of counterterror investigations. Attorney General John Ashcroft and FBI Director Robert Mueller were expected to outline high-profile changes Wednesday at the FBI's headquarters, including closer ties to the CIA and an overhaul of the FBI's outdated computer systems.

FBI officials refused on Tuesday to discuss the Carnivore memo or the investigation it referred to. They did, however, say that the bin Laden unit at FBI headquarters handles only investigations involving suspected activity by his terror network.

The memo shows FBI agents were worried about the fallout in the Denver case.

The Justice Department's Office of Intelligence and Policy Review was furious after learning the evidence captured by the e-mail wiretap system was destroyed because of the glitch, the memo states.

"To state that she was unhappy at ITOS (International Terrorism Operations Center) and the UBL (bin Laden) unit is an understatement," the memo stated, quoting a Justice official.

The memo said Justice officials worried the destruction of the evidence would signal an "inability on the part of the FBI to manage" the warrants that are key tools in espionage and anti-terrorism cases.

Privacy groups and some members of Congress have complained that Carnivore had the potential to collect more information than allowed by a warrant.

"Here's confirmation of the fact that not only did it do that, but it resulted in a loss of legitimately acquired intelligence," said David Sobel, general counsel of the Electronic Privacy Information Center, the group that sued to get the documents.

To allay Congress's concerns, FBI General Counsel Larry Parkinson testified in July 2000, "We do not deploy (Carnivore) in a way that exceeds the court order."

The e-mail from an unnamed author to M.E. "Spike" Bowman, the FBI's associate general counsel for national security, said Denver agents installed the e-mail surveillance system in March 16, 2000, but the device did not work correctly.

The technician who deleted the e-mail evidence had no supervision, the memo added.

Henry Perritt, who led a team authorized by the FBI to review the surveillance system, said he was surprised the technician deleted the e-mails.

"The collection is supposed to be retained for judicial review," Perritt said. "If an agent simply deleted a whole bunch of files without the court instructing, that's not the way it's supposed to work."

Another document released through the privacy group's request explains the bureau's policy for overcollection on a surveillance warrant. The memo, dated just a week after the Denver e-mail, says the e-mails should be kept under seal so that senior FBI officials can figure out how the wiretap went wrong.

The unintended targets of the FBI's snooping may have deserved notification that the mistake was made, the FBI memo said.

Authorities have used Carnivore-type tools more than 25 times in all types of criminal cases, to catch fugitives, drug dealers, extortionists and suspected foreign intelligence agents. Carnivore is now called DCS-1000.

Perritt's review panel recommended that the FBI change Carnivore so that it is more difficult to accidentally collect too much information. The FBI has not announced any changes.

D. IAN HOPPER, AP Technology Writer. Copyright © 2001 miami and wire service sources.

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