Posted on Fri, Feb. 11, 2011
Justice Department assertion: FBI can get phone records without oversight

McClatchy Newspapers

The Obama administration's Justice Department has asserted that the FBI can 
obtain telephone records of international calls made from the U.S. without any 
formal legal process or court oversight, according to a document obtained by 
McClatchy Newspapers.

That assertion was revealed - perhaps inadvertently - by the department in its 
response to a McClatchy Newspapers request for a copy of a secret Justice 
Department memo.

Critics say the legal position is flawed and creates a potential loophole that 
could lead to a repeat of FBI abuses that were supposed to have been stopped in 

The controversy over the telephone records is a legacy of the Bush 
administration's war on terror. Critics say the Obama administration appears to 
be continuing many of the most controversial tactics of that strategy, 
including the assertion of sweeping executive powers.

For years after the Sept. 11, 2001, attacks, the FBI sought and obtained 
thousands of telephone records for international calls in an attempt to thwart 
potential terrorists.

The bureau devised an informal system of requesting the records from three 
telecommunications firms to create what one agent called a "phone database on 
steroids" that included names, addresses, length of service and billing 

A federal watchdog later said a "casual" environment developed in which FBI 
agents and employees of the telecom companies treated Americans' telephone 
records so cavalierly that one senior FBI counterterrorism official said 
getting access to them was as easy as "having an ATM in your living room."

In January 2010, McClatchy Newspapers asked for a copy of the Office of Legal 
Counsel memo under open records laws after a reference to it appeared in a 
heavily excised section of a report on how the FBI abused its powers when 
seeking telephone records.

In the report, the Justice Department's inspector general said "the OLC agreed 
with the FBI that under certain circumstances (word or words redacted) allows 
the FBI to ask for and obtain these records on a voluntary basis from the 
providers, without legal process or a qualifying emergency."

In its cover letter to McClatchy Newspapers, however, the OLC disclosed more 
detail about its legal position, specifying a section of a 1978 federal 
wiretapping law that the Justice Department believes gives the FBI the 
authority. That section of the law appears to be what was redacted from the 
inspector general's report and reveals the type of records the FBI would be 
seeking, experts said.

"This is the answer to a mystery that has puzzled us for more than a year now," 
said Kevin Bankston, a senior staff attorney and expert on electronic 
surveillance and national security laws for the nonprofit Electronic Frontier 

"Now, 30 years later, the FBI has looked at this provision again and decided 
that it is an enormous loophole that allows them to ask for, and the phone 
companies to hand over, records related to international or foreign 
communications," he said. "Apparently, they've decided that this provision 
means that your international communications are a privacy-free zone and that 
they can get records of those communications without any legal process."

That interpretation could be stretched to apply to e-mails as well, he said.

However, Bankston said, even if the law allows the FBI to ask for the records - 
an assertion he disagrees with - it would prohibit the telecommunication 
companies from handing them over.

Meanwhile, the refusal to provide to McClatchy Newspapers a copy of the memo is 
noteworthy because the Obama administration - in particular the OLC - has 
sought to portray itself as more open than the Bush administration. The 
decision not to release the memo means the details of the Justice Department's 
legal arguments in support of the FBI's controversial and discredited efforts 
to obtain telephone records will be kept from the public.

The FBI and Justice Department have refused to comment on the matter.

For years, the Bush administration had refused to release the memos that 
provided the legal underpinning for harsh interrogations of overseas terror 
suspects, citing national security, attorney-client privilege and the need to 
protect the government's deliberative process.

In April 2009, the Obama administration released four of the Bush-era memos 
that detailed many of the controversial interrogation methods secretly 
authorized by the Bush administration - from water-boarding to confining 
prisoners in boxes with insects.

Experts that track government spying and the Freedom of Information Act said 
the refusal to release the FBI memo to McClatchy Newspapers appears to be 
improper and contrary to the intent of FOIA.

Since the memo appears to be exclusively on the OLC's legal justification for 
getting the phone records, the Justice Department should be able to release at 
least portions of it, experts said.

"It's wrong that they're withholding a legal rationale that has to do with the 
authorities of the FBI to collect information that affects the rights of 
American citizens here and abroad," said Michael German, a former FBI agent of 
16 years who now works for the American Civil Liberties Union. "The law should 
never be secret. We should all understand what rules we're operating under and 
particularly when it comes to an agency that has a long history of abuse in its 
collection activities."

Sens. Richard Durbin, D-Ill., and Ron Wyden, D-Ore., demanded more than a year 
ago that Attorney General Eric Holder release a copy of the memo.

The Justice Department has responded, Wyden said this week, but he declined to 
elaborate on the exchange.

"I do think the level of secrecy that surrounds the executive branch's 
interpretation of important surveillance law is a serious problem," he told 
McClatchy Newspapers, "and I am continuing to press the executive branch to 
disclose more information to the public about what their government thinks the 
law means."

When President Barack Obama authorized the release of the interrogation memos, 
he said at the time that he was compelled to release them in part because of an 
open records lawsuit by the ACLU.

"While I believe strongly in transparency and accountability, I also believe 
that in a dangerous world, the United States must sometimes carry out 
intelligence operations and protect information that is classified for purposes 
of national security," he said.

Obama said he had concluded the documents could be released because they 
wouldn't jeopardize national security and because the interrogation techniques 
described in the memos had been widely reported. By then, the practices were no 
longer in use.

The FBI's activities discussed in the most recent and still secret OLC memo 
also have been widely publicized. An inspector general report that revealed the 
existence of the FBI memo was one in a series on the FBI's informal handling of 
telephone records and it concluded the bureau had committed egregious 
violations of the law.

When revealing the existence of the OLC memo, the inspector general described 
it as having "significant policy implications that need to be considered by the 
FBI, the Department, and the Congress."

The report also described a "casual" environment in which FBI agents and 
employees of telecommunications companies treated Americans' telephone records 
so cavalierly that one senior FBI counterterrorism official said getting access 
to them was as easy as "having an ATM in your living room."

Since 2006, it appears the bureau has refrained from using the authority it 
continues to assert, according to another heavily redacted section of the 
inspector general's report.

"However, that could change, and we believe appropriate controls on such 
authority should be considered now, in light of the FBI's past practices and 
the OLC opinion," the inspector general warned.

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