FBI director, James B. Comey, doesn’t agree with the recommendation that NSL requests be subject to judicial review.
The intelligence review group President Obama created to address surveillance concerns recently submitted 46 recommendations for improving the federal government’s surveillance programs. FBI director James B. Comey spoke out against one in particular, which proposed requiring judicial approval for issuing national security letters (NSL). The document highlighted in today’s posting, an unclassified 2008 Department of JusticeInspector General (IG) report on the FBI’s use of NSLs, helps contextualize both the FBI’s concerns altering one of its key investigative tools, and the serious civil rights concerns that tool elicits.
Insufficient judicial oversight has been a long-standing concern with NSLs, which demand business records from a wide array of organizations for national security investigations, and its unsurprising to see them addressed by Obama’s intelligence review panel. The 2004 case Doe v. Ashcroft challenged the constitutionality of the letters, specifically their non-disclosure provisions, and the resulting ruling issued by Judge Victor Marrero found they NSLs violate the Fourth Amendment. This led to revisions of the USA Patriot Act, allowing for greater judicial review and clarifications to the non-disclosure clauses. However, there are still no requirements to seek approval or judicial review when sending an NSL, and the non-disclosure provisions prevent the full extent of the NSL program from becoming known. A strong argument can be made that even though the Patriot Act allows NSLs containing gag orders to continue being issued without judicial approval, they are nevertheless unconstitutional because they violate the Fourth Amendment’s prohibition on “unreasonable searches” of citizen’s “persons, houses, papers, and effects” without a warrant issued only “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” There is also the chance that because the NSLs are secret law, their reach goes well beyond what we now know.
Jude Marrero’s ruling was one of the impetuses for the 2008 IG report, which was the second in a series addressing NSL-related concerns. The report underscores the importance of NSL requests to the FBI, by far the largest employer of the letters, and their reluctance to change current practices. The report notes that the FBI issued a total 192,499 NSL requests between 2003 and 2006 alone. The ACLU reported “that the agency so thoroughly abused the program that it truly had no idea how many letters had been issued. An audit of the program also found that 60% of the audited files had no supporting documentation and that 22% contained at least one unreported legal violation,” making the lack of oversight of the letters’ issuance and the metadata they collect all the more alarming.
The 2008 IG report states between 2003 and 2006 the “overwhelming majority” of the FBI’s NSL requests were for phone billing information, email subscriber information, and other electronic transaction records. The second most frequently requested records were financial records from banks and credit card companies, followed by financial identifying information and full credit reports. The IG report also reveals a continued, upward trend in NSL issuances, the increase in requests related to the investigations of U.S. persons, and the decrease in requests related to the investigations of non-U.S. persons.
The 2008 report concludes by saying the FBI made “significant progress” in implementing recommendations from an earlier 2007 report, including reinforcing “throughout all levels of the FBI the necessity of adhering to the rules” and issuing “needed” guidance on the use of NSLs. The report offered 17 additional recommendations for improvements (judicial approval for issuing NSLs not being one of them), all of which the FBI agreed with.
Overall, the exhaustive 2008 IG report highlights the effectiveness of national security letters as an investigative tool and the FBI’s increasing reliance on them. FBI director Comey said regarding issuing the NSL letters, “[b]eing able to do it in a reasonably expeditious way is really important to our investigations. So one of my worries about the proposal in the review group is it would add or introduce a delay.” Comey did suggest that compromises could be made regarding the contentious non-disclosure agreements, saying “[w]e ought to be able to work something out that adopts a nondisclosure regime that is more acceptable to a broader array of folks than the one we have now.” However, it seems highly unlikely these compromises would satisfy the intelligence review panel’s recommendations or civil rights advocates concerns given the bureau’s opposition to judicial approval. President Obama is expected to announce whether he will implement any of the 46 recommendations, including judicial approval for NSL issuances, as early as next week.
For more in-depth information on the FBI’s broad range of operations, check out Jeff Richeleson’s EBB, “Documenting the FBI.”
FRINFORMSUM 1/09/2014: Obama Considers Surveillance Changes, the FBI is “just keeping up with the times,” and Much More.
The president’s advisory recommended 46 surveillance changes, including halting the NSA storage of Americans’ telephone records. (Photo: Patrick Semansky/AP/File)
Today President Obama will meet with a group of lawmakers to discuss challenges to the federal government’s surveillance programs, including the National Security Agency’s (NSA) bulk collection of phone records. President Obama’s intelligence advisory panel recently presented him with46 recommendations for changes to current surveillance practices, and the President’s aides say they expect him to act on some of them. Changes the President is “likely” to make include placing a public advocate on the Foreign Intelligence Surveillance Court (FISC) and “shifting the NSA’s bulk collection and storage of domestic telephone calling records to private hands.” The President will announce any changes to the government’s surveillance programs before his January 28 State of the Union Address.
The NSA has already begun exploring alternatives for storing vast amounts of phone data and “is examining whether there are feasible ways for third parties such as phone companies to hold the data while allowing the agency to exploit the records.” One of many hurdles to this alternative is the phone companies’ aversion to it. The companies argue “storing the data for the NSA would lead to a flood of requests from local prosecutors, federal agents and divorce attorneys, unless legislation mandates it be used strictly for government counterterrorism purposes” –not to mention concerns that capturing and storing the information without a warrant in the first place violates the Fourth Amendment.
The DOJ has appealed the December 16 ruling that called the NSA’s bulk phone collection program “almost certainly” unconstitutional. (Photo Credit: National Security Agency)
Last week the Justice Departmentsubmitted its appeal to a December 16 ruling that called the NSA’s phone data collection program “almost certainly” unconstitutional. The Office of the Directorate of National Intelligence called the December 16 ruling a “lone contrary decision,” and last week the Obama administration revealed that, despite the legal setback, FISC renewed another order allowing the NSA’s domestic phone record collection to continue. In a separate case two weeks after the December 16 ruling, a federal judge in New York rejected the ACLU’s challenge to the phone data collection program and ruled that it was legal. The ACLU plans to appeal.
Elsewhere in the courts, a federal appeals court ruled “that a confidential Justice Department legal opinion on the scope of the FBI’s surveillance authority can remain secret.” The document in question is a 2010 Justice Department’s Office of Legal Counsel memo “that allowed the FBI to informally gather customer phone call records from telecommunications companies.”
The FBI has made an interesting change to the “primary functions” listed on its fact sheet distributed to the public. Now, instead of citing “law enforcement” as its “primary function,” the FBI lists “national security” as its main priority. A spokesman for the agency said the change in the bureau’s mission statement “is just keeping up with the times,” which have changed drastically since 9/11.
Also this week, the burglars who broke into an FBI field office on March 8, 1971, revealed their identities for the first time in order to be interviewed for a new book detailing the heist. The group broke into an FBI office in Media, PA to steal documents confirming the bureau took part in “extensive spying” on dissident groups, then mailing them to journalists. The leaks dealt “the first significant blow” to the bureau in its history, and revealed the existence of COINTELPRO, a series of covert projects carried out by the bureau intended to disrupt domestic political groups.
A huge collection of FBI documents on the CIA between 1946 and the mid-1990s were recently highlighted on Matthew Aid’s blog. According to Aid, “[t]his compendium consists of thousands of pages of documents about the FBI’s oftentimes tortured relationship with the CIA. Many of these documents I have never seen before, and I have been at this for over 25 years.”
Sen. Bernie Sanders (I-VT) asked the NSA if they were now, or had ever, spying on members of Congress. (Photo Credit: Alex Wong/Getty Images)
In FOIA news, the Navy mistakenly sentan NBC reporter a memo explaining the attempts the agency was going to take dodging his FOIA request on the Navy Yard shooting. While that communication is something of a head-scratcher, it’s not nearly as baffling as the NSA’s response to Senator Bernie Sanders’ letter asking if the agency has spied, or is currently spying, on members of Congress or other elected American officials. The NSA’s response? “NSA’s authorities to collect signals intelligence data include procedures that protect the privacy of US persons. Such protections are built into and cut across the entire process. Members of Congress have the same privacy protections as all US persons. NSA is fully committed to transparency with Congress. Our interaction with Congress has been extensive both before and since the media disclosures began last June.”
Finally this week, the National Geospatial-Intelligence Agency just unveiled a History Page on its website. The site includes “a 76-page compendium of information about the command leadership of NGA and its predecessor organizations; and an 82-page chronology of key events in the history of NGA and its antecedents.” Hopefully this page is a sign of more documents to come from a very interesting agency.
Happy FOIA-ing in 2014!
FRINFORMSUM 12/19/2013: NSA’s Bulk Data Collection “Almost Certainly Unconstitutional,” the Senate Intel Committee Squares off with the CIA, EPA Employee Pretended to Work for CIA to Miss Two Years of Work, and More.
The NSA’s bulk phone collection programs were ruled “almost certainly unconstitutional” this week. Photo Credit: National Security Agency.
Federal Judge Richard J. Leon of the U.S. District Court for the District of Columbiaruled Monday that the National Security Agency’s (NSA) bulk collection of Americans’ phone records is “almost certainly unconstitutional.” In his 68-page ruling, Leon said “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.” On Tuesday one of the NSA’s staunchest supporters, Senate Intelligence Committee Chairwoman Dianne Feinstein (D-CA), said she is looking forward to the Supreme Court determining the constitutionality of the program for itself. Feinstein, hedging her bets, also said she believed the surveillance program was important, but not indispensable.
The surveillance task force ordered by President Obama to review the NSA’s domestic programs in the wake of Edward Snowden’s leaks has delivered its final report to the White House. The report recommended more than 40 changes to the NSA, however no details of those changes were provided, with the White House only announcing it would finish reviewing the report and release the results in January. One change that won’t be made to the agency is splitting up leadership of the NSA and U.S. Cyber Command. The White House decided to keep the two positions under the same command despite concerns that combining them places too much power in one person. This decision also assures a civilian won’t be heading the spy agency anytime soon, meaning that long-time NSA deputy director John Ingles is no longer General Keith Alexander’s slated replacement.
Edward Snowden’s leaks about the NSA’s activities are hurting its hiring prospects and retention rates. Photo: EPA
The NSA has bore the brunt of widespread criticism since revelations of its surveillance practices this summer, which is even taking a toll on the agency’s staffing. A recentForeign Policy article reported that job applications to the agency are down by more than a third, and retention rates are also declining, shifting the work culture of an agency that has traditionally had life-long employees. In an effort to boost its image, the NSA granted an interview with CBS’ television news program ’60 Minutes,’ which aired on Sunday night. However, the attempt at a public relations coup faltered when media outlets questioned the slant of many of the ’60 Minutes’ reports’ key facts, and when it was learned that the segment’s host, John Miller, was “an intelligence community veteran and former public affairs officer for the Federal Bureau of Investigation, who failed to disclose to viewers that he was eyeing a return to his career in law enforcement.”
The CIA is currently involved in a heated debate with the Senate Intelligence Committee over the CIA’s internal counter-terrorism practices report “that lawmakers believe is broadly critical of the C.I.A.’s detention and interrogation program but was withheld from congressional oversight committees.” A lawyer for the Department of Justice even told committee members “that crucial legal opinions about intelligence matters were beyond the scope of the committee.” The debate comes at the same time the two are battling over the release over Committee’s own6,000-page report on interrogation practices that was completed last December but has yet to be declassified. Officials familiar with the Senate report say it is “unsparing in its criticism of the now-defunct interrogation program and presents a chronicle of C.I.A. officials’ repeatedly misleading the White House, Congress and the public about the value of brutal methods that, in the end, produced little valuable intelligence.”
The kidnapping of Robert Levison, a retired FBI agent who disappeared in Iran six years ago on an unauthorized mission for the CIA, has led to major changes at the agency. After emails and other documents surfaced proving Levison was in Iran for the CIA, “[t] he agency changed the rules outlining how analysts conduct business with contractors, including academics and other subject-matter experts who don’t work at the CIA.” While it may sound far-fetched, free-lancing for the CIA is such an effective cover that one of the Environmental Protection Agency’s (EPA) highest-paid civil servants, John C. Beale, skipped work –the equivalent of two and half years– for over a decade by pretending he worked for the CIA. Beale even had the EPA reimburse him for time off visiting his family by claiming he was working remotely on a research project for the spy agency.
In FOIA news, last week a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit heard the Archive’s arguments for public release of the last secret volume of the CIA’s internal history of the 1961 Bay of Pigs disaster, which the CIA has long-argued would “confuse the public” if released. Judge Judith Rogers responded to that absurd claim by saying she did not “find that totally persuasive.” In another recent FOIA victory, U.S. District Judge Ellen Seal Huvelle ruled the unclassified, widely-circulated Presidential Policy Directive on Global Development is not exempt from FOIA. The administration argued that the directive is protected under the FOIA’s executive communication privilege, but Judge Huvelle strongly disagreed, writing “[t]he government appears to adopt the cavalier attitude that the President should be permitted to convey orders throughout the Executive Branch without public oversight, to engage in what is in effect governance by ‘secret law.’”
In declassification news, the latest posting from the Archive’s Nuclear Vault on nuclear proliferation contains newly declassified documents on South Africa’s Cold War-era intentions and capabilities, competing pre-Iraq War claims within the intelligence community about specialized aluminum tubes Iraq tried to procure, and much more. Give the whole posting a read! And just in case you need some fun declassified documents to read around the Yule log, the Archive just got the NSA’s “Holiday Talking Points” officially released thanks to our recent FOIA request (the corner stamp denotes official release).
NSA’s officially released “Holiday Talking Points”
Don’t miss the sordid tale of a the senior Environmental Protection Agency official who skipped work for over a decade by pretending he worked for the CIA. While the audacity of John C. Beale (sentenced to 32 months in prison) is certainly notable, the story also demonstrates that government secrecy inherently hinders oversight and accountability.
Finally, checkout the rejuvinated FOIA subreddit: reddit.com/r/FOIA
As always, happy FOIA-ing!