January 10, 2014

New Public Documents Reveal FBI Failed to Follow Secretive Domestic Drone Protocol

By Lucy Stein

In its audit of the Department of Justice’s use of drones, the DOJ Office of Inspector General (OIG) revealed the FBI began deploying drones domestically in 2006.

FBI Domestic Drone The DOJ audit—conducted between November 2012 and May 2013 and released in September 2013—contains few other details on the FBI’s use of unmanned aircraft systems (UAS) or drones—a program the public knew nothing about until June 2013, when then-FBI Director Robert Mueller acknowledged its existence.

The latest batch of responsive documents the FBI released to CREW as part of an order issued in CREW’s underlying FOIA lawsuit includes a series of FBI internal communications relating to the OIG’s audit.

This production is smaller than the first, and its redactions are similarly heavy handed. The production includes Standard Operating Procedures (SOP1, SOP2), which are both dated and largely redacted, and Bureau Aviation Regulations (BAR1, BAR2), which are entirely deleted. Nevertheless, the OIG audit documents shine a dim light on the opaque inner-workings and muddled policies of the FBI’s domestic drone surveillance program.

On November 28, 2012, an employee of the FBI’s Inspection Division (INSD) emailed a group of FBI employees from various divisions to inform them the OIG was initiating an audit of the DOJ’s use of drones. (CREW-1089-90) An email sent on December 3, 2012, from an employee of the FBI Office of General Counsel (OGC) to a group of OGC employees in response to the audit announcement explains: “We will not insert ourselves in this audit if not invited. However, I think it is likely the OIG will want to include us, if we have any unmanned aircraft. Can someone please let me know what FBI entity, if any, has unmanned aircraft in use? Any other detailed such as: how many, what uses, etc would be great.” (CREW-1088) On December 4, after passing through two OGC employees, the email chain reaches an assistant general counsel of the Science and Technology Law Unit, who is described as “the primary legal advisor to the Video Surveillance Unit in [Operational Technology Division (OTD)], who has program management responsibilities over the UAS program.” (CREW-1086) This assistant general counsel responds, in part: “The FBI owns numerous UAS, which we routinely use primarily in [counterintelligence], [counterterrorism], and official corruption cases throughout the US.” (CREW-1086) This December 2012 description stands in contrast to Dir. Mueller’s June 2013 characterization of the FBI’s use of drones as “very minimal” and “very seldom.”

“The FBI owns numerous UAS, which we routinely use...”

Other notable email exchanges seem to indicate that contrary to the OIG’s finding that the FBI “appeared to operate UAS only after obtaining the required approvals, including [Federal Aviation Administration (FAA)]-approved [Certificates of Authorization (COAs)] or emergency COAs,” the FBI in fact deployed drones in instances where the FAA had not issued a COA. A March 26, 2013 email from an INSD employee explains: “The OIG has requested a COA and after-action report for each deployment below. If no COA was issued by FAA, a written explanation is needed as to why.” (CREW-969) In response, an OTD employee responds regarding a specific drone deployment: “COA—Not given by FAA.” (CREW-968)

The FBI in fact deployed drones in instances where the FAA had not issued a Certificate of Authorization.

Another email from March 28 contains a redacted draft of this written explanation: “For the deployments where no COA was issued, here is a written explanation for the OIG based on your latest feedback.” (CREW-1047) Moreover, a later email in this chain suggests the FBI also did not follow its own SOPs by failing to file after action reports (AARs) for some drone deployments: “I also checked on how we want to mention missing AARs. My management thinks we may have to supply a similar-type written justification since they are a requirement stated in our SOPs. Any suggested language?” (CREW-1046)

Further, emails exchanged between March 26 and April 2, 2013, show the FBI may have tinkered with the information it provided to the OIG to appear to have operated within the parameters of its COAs. In an email to a group of FBI employees, an INSD employee explains: “The OIG asked us to provide the names and contact information for the following [full time equivalents] dedicated to working with or using UAVs and FBI personnel qualified to operate UAVs.” (CREW-1043)

After learning he or she did not qualify as a UAV pilot, an FBI employee with a UAV student pilot certificate writes: “This is news to me…I thought I was a qualified UAV pilot.” (CREW-1041) The Field Flight Operations Unit Chief responds: “Since our COA requires the Private Pilot certificate, we aren’t counting you for the purposes of the OIG audit.” (CREW-1041)

“This is news to me…I thought I was a qualified UAV pilot.”

As noted in CREW’s analysis of the FBI’s first batch of responsive documents, none of the documents produced to CREW in this round gave any indication the FBI was engaged in a review of the pressing civil liberties and privacy rights concerns implicated by its domestic drone surveillance program. Additionally, CREW’s review of this production found no evidence the FBI began “developing and reviewing an Aviation Policy Implementation Guide” in early June 2013, despite the OIG’s finding that new “consistent policy specific to UAS…may be merited in light of the trending technological capabilities of UAS in order to guide their proper and safe use in circumstances unanticipated by existing policies.” Instead, the FBI provided CREW with the same—though presumably unredacted—SOP it submitted to OIG dated October 28, 2010. (CREW-998, 860-61).

Rather than providing any answers, this latest batch of documents raises more questions about the evolving “footprint” of the FBI’s growing drone program.

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