No Comment — January 25, 2010, 11:30 am

A New Scandal for OLC?

Last week, the Department of Justice’s Inspector General issued a new report (PDF) looking at the FBI’s improper use of Exigent Letters to unlawfully secure phone records—prominently in connection with leak investigations targeting major newspapers. The report is remarkable for a number of reasons, but particularly because of the collusive relationship it describes between the federal government and the telecommunications industry. At this point, the attitude could be described simply: “You want ‘em, you got ‘em.” Never mind that turning over the documents may be a criminal act under both state and federal law. The Justice Department is not about to apply the law to themselves. Neither will they permit state law enforcement agencies to enforce their law. Here’s how Wired’s Ryan Singel puts it:

The FBI and telecom companies collaborated to routinely violate federal wiretapping laws for four years, as agents got access to reporters’ and citizens’ phone records using fake emergency declarations or simply asking for them.

The Justice Department Inspector General’s internal audit, released Wednesday, harshly criticized how the Federal Bureau of Investigation’s Communications Analysis Unit — a counterterrorism section founded after 9/11 — relied on so-called “exigent” letters to get carriers to turn over phone records immediately. The letters were a hangover from the investigation into the 9/11 attacks in New York and promised telecoms, falsely, that subpoenas would follow shortly.

The major abusers are in the New York Field Office of the FBI as well as the Bureau’s Communications Analysis Unit. And the report focuses heavily on an unlawful snatch of telecommunications records targeting the New York Times and the Washington Post. Because of redactions, we don’t know exactly which reporters were targeted, but we do know that “leak” investigations were carried out following Dana Priest’s Pulitzer Prize-winning disclosures about the CIA black site torture system and James Risen’s Pulitzer Prize-winning disclosures of a National Security Agency surveillance program that involved the warrantless examination of communications data relating to tens of millions of Americans. These facts suggest a motive for the investigations that is quite different from the ones mentioned in the inspector general’s report.

As will be burningly apparent to 23 American officials who were recently convicted by an Italian court for serious crimes connected with extraordinary renditions operations, the black site system and the renditions program associated with it were fundamentally a criminal enterprise. The Justice Department was itself involved in prosecuting government officials after a comparable World War II-era program, seeking the death penalty for some of them. The Bush-era Justice Department could, and did, thwart the enforcement of American law against torture and “disappearings”—but it could not stop the work of criminal investigators and prosecutors around the world. The Washington Post’s exposure of this system therefore presented a grave threat of criminal prosecution to those involved in it.

Similarly, Risen’s disclosures revealed to the American public that the confidentiality of their telecommunications were compromised and that the Bush Administration took free license to snoop when and where it liked, even when a proper reading of FISA would call that conduct a felony. Once again, the press for a leak investigation seems intended not to pursue but rather to cover up potentially criminal conduct.

The OIG report states that the FBI investigations were driven by a desire to identify individuals inside the government who violated national security rules. Translated into normal English: it was meant to silence whistleblowers and exert pressure on journalists pursuing investigations based on their accounts. But these two cases were not run-of-the-mill “leak” investigations. The information that was being provided could support the future criminal prosecution of Bush Administration officials, and in fact did materially advance criminal prosecutions leading to the conviction of a number of them. In other words, the principal function of the “leak” investigations may have been to obstruct criminal investigations by other law enforcement agencies.

The OIG report states, implausibly, that the agents in Manhattan and Washington involved were “unaware” of the special rules concerning snooping on reporters. It is far more likely that the use of illegal methods resulted directly from pressure to do whatever it took to get the White House its desired results.

But the real kicker in this report comes right near the close, where the Obama Administration’s Office of Legal Counsel is reported to have issued a secret ruling just two weeks ago stating that the FBI’s circumvention of privacy protections was nevertheless legal. This sure looks like another example of covering up Bush-era crimes that makes bad precedent for the future.

Let me balance this by saying that the matter shouldn’t be judged until the OLC opinion can be examined. Senators Feingold, Durbin, and Wyden have, quite appropriately, demanded to see it. The opinion needs to be published, in fact. Dawn Johnsen, designated by President Obama to run the OLC, still isn’t on board, due to G.O.P. blocking maneuvers. However, Martin Lederman and David Barron are presently in charge. They are two of the best legal minds of their generation, and their scholarship on national security issues is balanced, cautious, and very impressive. They are not lawyers who would engage in the sophistry that was the staple of the last OLC. But this ruling strikes me as too institutionally convenient and too disrespectful of the protections Congress has put in place to be allowed to stand. There may well be another scandal brewing for OLC.

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