By Kenneth J. Theisen
According to a report in the Washington Post on January 19, 2010, the FBI routinely claimed false “terrorism emergencies” to illegally collect thousands of phone records of Americans between 2002 and 2006 by abusing an already expansive PATRIOT Act power. The PATRIOT Act was rushed through Congress after 9/11 and gave the federal government broad authority to spy on all of us.
The law was a virtual wish list of all those who had dreamed of creating a national security state in the U.S. One of the new spy tools was the use of “national security letters.” By utilizing “exigent letters,” or emergency letters, to gain private records for investigations when no emergency existed, the FBI regularly violated the Electronic Communications Privacy Act. The FBI also routinely issued National Security Letters (NSLs) after the fact in an attempt to “legitimize” the use of exigent letters.
The NSL statute, widely broadened with the passage of the Patriot Act in 2001, allows the FBI to secretly demand personal records about innocent customers from Internet Service Providers (ISPs), communications service providers, financial institutions, and credit reporting agencies without suspicion or prior judicial approval. It allows the government to go on virtual fishing expeditions in violation of the fourth Amendment which allegedly should prevent such illegal search and seizures. The statute also allows the FBI to bar NSL recipients from disclosing anything about the record demand. Congress recently extended three unrelated provisions of the Patriot Act set to expire last year until February 28, 2010. There are several bills in both the House and Senate that address those provisions, as well as the NSL statute.
In 2004, the ACLU and New York Civil Liberties Union filed a lawsuit on behalf of an ISP that the FBI served with an NSL. Because the FBI imposed a gag order on the ISP, the lawsuit was filed under seal. Although the U.S. Court of Appeals for the Second Circuit ruled in 2008 that the gag order provisions were unconstitutional, the “John Doe” NSL recipient in that case currently remains gagged. This is part of the attempt of the government to hide it abuses from the public.
Michael Macleod-Ball, Acting Director of the ACLU Washington Legislative Office denounced the recently revealed abuses, “The FBI was given broad authority to issue NSLs in the Patriot Act, and to flout even the minor privacy protections within that statute shows a blatant disregard for the civil liberties of Americans. The FBI has a notorious reputation for being unable to police itself and, in this instance, its internal oversight controls clearly failed. Even after being warned by their own lawyers, FBI supervisors continued sending exigent letters even though no emergency existed and they had no statutory authority for such letters.
“The agency has shown time and again its contempt for internal guidelines and restrictions, even when someone is looking over its shoulder. Worse still is the evidence that higher-ups at the agency attempted to cover up their wrongdoing. It is not enough to for the FBI to claim these practices have ended; its ability to file exigent letters must be narrowed and subject to increased oversight. With the reauthorization of Patriot Act authorities now pending, Congress has an opportunity to narrow the use of NSL powers and help avoid such abuses in the future. Given what we now know, it would be unthinkable not to make such changes in the law now while it’s possible.”
According to the Post story, “A Justice Department inspector general’s report due out this month is expected to conclude that the FBI frequently violated the law with its emergency requests, bureau officials confirmed.”
Melissa Goodman, staff attorney with the ACLU National Security Project further stated,
"The FBI showed flagrant duplicity in obtaining thousands of phone records over several years without any legal basis or justification for doing so. The FBI must be forthcoming and release information about its use of exigent letters and NSLs in order to hold accountable those who contributed to what clearly amounts to a systemic abuse of power. The FBI should also lift unnecessary and unjustified gag orders that continue to silence thousands of NSL recipients from speaking out about the FBI’s misuse of this intrusive record demand power, including our John Doe client who has now been gagged for nearly six years."
The latest revelations in the Post story should come as no surprise. I have written other articles for this site on the consistent abuse in the use of NSLs. This abuse has occasionally been covered by the mainstream media as well. But each time abuses are revealed the government pretends to address it and then tells us not to worry. The story then goes away until the next revelation.
While the latest abuses are said to have occurred during the Bush regime we have no guarantee that they are not still occurring under the Obama administration. And even if the detailed abuses in the Post story no longer occur, why has not the Obama Department of Justice (DOJ) prosecuted any one for the past abuses. But then the FBI is part of DOJ so what can we expect. And do not expect the Obama administration to ask for the case to be referred to an independent prosecutor. Since coming into office a year ago the Obama administration has consistently covered up the crimes of the Bush regime, particularly those crimes related to “national security.” Crimes such as torture, kidnappings (rendition), massive spying, illegal detention without trial, war crimes, assassination, etc. have not been crimes worthy of prosecution under the Obama administration. (In fact many of those crimes continue under Obama.) Why should these latest revealed crimes be any different?