FBI supervisor warned Comey in 2014 that warrantless surveillance program was ineffective

An official who supervised the FBI’s Section 215 warrantless phone surveillance program revealed by Edward Snowden in 2013 says he warned then-Director James Comey it was woefully ineffective in catching terrorists and needed to be modified.

Retired Special Agent Bassem Youssef, the chief of the FBI’s Communications Analysis Unit, said in an exclusive interview with The Hill that no action was taken by Comey in response to the concerns he raised.

He said his efforts were prompted by an audit his team conducted showing the program had searched through thousands of Americans’ records but had helped disrupt only one possible terrorist plot over more than a decade.

“I explained to Director Comey that the special program was largely ineffective, very costly and highly burdensome to our agents in the field,” said Youssef, who supervised the program on a daily basis from 2005 through 2014.

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Youssef, a decorated counterterrorism agent and prior FBI whistleblower, told The Hill that he sought, in the summer of 2014, to get the FBI to reform the program out of concern it gave the FBI easy access to Americans’ telephone data, leaving it open to potential abuse while generating spurious connections between innocent people and bad actors.

“I believe that the program, as it was, was ripe for potential abuses,” he said. “I think that every law-abiding citizen should feel comfortable and secure in their home in terms of their privacy, and that was not the case.”

Youssef also said he’s recently been interviewed by at least one congressional panel investigating possible problems with the FBI’s surveillance practices.

Republicans on the House Intelligence Committee and Senate Judiciary Committee are probing whether the FBI used misleading information to obtain a court-ordered surveillance warrant in the Russia-Trump collusion investigation. It’s not clear if they are looking at the warrantless program formerly used by the FBI and National Security Agency (NSA).

Youssef and congressional officials declined to describe the focus of the congressional interview, saying it involved classified information.

FBI officials declined comment on Youssef’s allegations.

A lawyer for Comey said the former FBI director, who was fired by President Trump in May 2017, would have no comment.

Republican congressional investigators now examining whether the FBI abused its surveillance powers during its Russia-Trump collusion probe are now pressing for access to the document that Youssef wrote for Comey before his retirement, known inside the intelligence community as the “four options memo,” sources told The Hill.

Youssef and his team began writing the memo to help the White House civil liberties board address its concern about the legality of the Section 215 program and then sent it to the FBI leadership as well, the sources said.

Outside Congress, the Trump Justice Department is weighing whether to appoint a special prosecutor to look into possible surveillance abuses and the department’s own internal watchdog, the inspector general, has begun its own review into similar issues, officials have confirmed.

The emergence of Youssef, who oversaw the FBI program for most of its existence, could impact all of those investigations, providing new evidence that there was internal dissent inside the FBI about the merits of warrantless surveillance.

Youssef, who retired in late 2014 after three decades, served for nearly 10 years under former Presidents George W. Bush and Obama as the chief of the bureau’s Communications Analysis Unit.

That unit oversaw the controversial telephone surveillance program the FBI saw as a critical tool after the Sept. 11, 2001, attacks. It allowed the FBI to review U.S. telephone records collected by the NSA, though not the content of calls.

The program was originally started immediately after the 9/11 attacks without specific congressional approval. Under Section 215 of the Patriot Act, the FBI was eventually given the power to collect “tangible things,” including books and business records, that were merely relevant to an investigation — a standard far lower than the probable cause warrant generally required in a criminal case.  

But the existence of the special program and its mining of Americans’ phone records remained classified for years, even after the FBI had won a secret order from the nation’s surveillance court to allow for bulk collection of records.

Following the Snowden leaks in 2013, it was revealed that the government had interpreted the 215 provision to engage in mass surveillance, including the collecting of phone records of all Americans. The Section 215 program continues today, though reforms were passed by Congress in 2015 to limit the ability of the government to engage in bulk surveillance, thus placing some limits on the scope of phone records the FBI can search. 

FBI officials continue to insist the program is an essential tool. But Youssef said the internal audit he conducted in 2014 showed the program, in fact, produced little success while often forcing agents in the field to waste time chasing spurious leads generated by the FBI’s analysis of NSA data.

“After instructing the supervisors of my unit to conduct an exhaustive audit of the hundreds of thousands of leads generated since September 11, 2001, until the end of 2013, we determined that the program was credited with only one disruption since 9/11,” he said.

The FBI initially reported to Congress that the program had helped disrupt 53 terrorism plots, then reduced the number to 11 before quietly informing lawmakers there was just a single case, Youssef said, describing the impact of his internal audit.

Youssef said after the audit he wrote a memo laying out better options for conducting surveillance that would be less intrusive to Americans and more effective in catching bad actors. He said he ran his concerns up the FBI chain of command but found no interest in the reform. Then a chance encounter with Comey led to a direct meeting with the then-director in August 2014. Youssef said he could not be more specific in speaking about the concerns or proposed solutions he raised with Comey because they involved tactics and information that remain classified.

“During the meeting I briefed the director on an improved operational model that would protect civil liberties, greatly increase the effectiveness of terrorist identification and would operate at a fraction of the cost of the existing program,” Youssef said.

Youssef said Comey initially appeared very interested in pursuing the reforms, but then the effort lost all momentum. Youssef said bureau leaders told him they preferred to keep the program untouched, if nothing else to be a “safety blanket” if other terrorism tools failed.

Youssef said he retired a few months after his effort fizzled.

In spring 2017, the FBI announced it was ending some of its controversial surveillance practices, including so-called upstream searches of NSA data involving Americans. Those changes came after the Foreign Intelligence Surveillance Court issued a rare public opinion, rebuking the FBI for failing to promptly disclose past abuses of some of its surveillance powers that could have impacted Americans’ privacy protections under the Fourth Amendment.

The court’s ruling was particularly harsh, citing the FBI for “apparent disregard” of privacy protections and adding the judges feared raw intelligence about Americans was wrongly being disseminated and not being disclosed as violations.

Officials said, however, the Section 215 program remains intact today, though the number of telephone records it can access has been limited by the 2015 law.

The congressional panels that spoke to Youssef want to determine whether the Section 215 program was misused generally or more specifically inside the Russia probe, and whether the FBI was slow to address red flags raised about its surveillance power.

“The memo and the agent’s contemporaneous warnings to the FBI are of extreme interest to us,” said one GOP source in Congress. “What the supervisory agent was warning was exactly the sort of ineffectiveness and abuse we ultimately believed occurred during the Trump-Russia collusion investigation.”

“There were red flags that the Section 215 program was ineffective and hurting privacy and no one seemed to address it, and then there were red flags during the Russia probe that a [Foreign Intelligence Surveillance Act] FISA warrant was issued under misleading circumstances and no one acted. We want to know whether these are a sign of a larger neglect inside an agency given such awesome surveillance powers,” the source explained.

Youssef was one of the bureau’s most respected agents in the early war on terrorism, winning widespread credit for improving the otherwise strained relations between the FBI and Saudi Arabia’s Mabahith, the bureau’s counterpart in that country, in the late 1990s.

His work led to unprecedented cooperation between the two law enforcement agencies in the fight against al Qaeda. He then gained national media attention as a post-Sept. 11 whistleblower who successfully proved the FBI wrongly retaliated against him for raising concerns to Congress.

As his whistleblower case was winding down in 2005, Youssef was placed in charge of the Communications Analysis Unit, the secretive FBI office that accesses NSA data to look for trends that might identify Americans working with terrorist groups or hostile foreign actors.

Youssef said he could not discuss any of the specifics of the work he supervised for the nine years and nine months he oversaw the unit.

One sign of the FBI’s overall surveillance impact on Americans was a more than 300 percent increase in data searches on Americans’ names against NSA data that occurred over a four-year period from 2013 through 2016.

The Office of the Director of National Intelligence says there were 30,355 searches in 2016 seeking information about Americans in NSA intercept metadata, compared to just 9,500 in 2013.

Information released by the intelligence community in late 2016 and early 2017 indicated more than 5 percent of upstream searches of NSA data were legally problematic.