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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.
More from Scott Horton:
Conversation — August 5, 2016, 12:08 pm
Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
Flor Arely Sánchez had been in bed with a fever and pains throughout her body for three days when a July thunderstorm broke over the mountainside. She got nervous when bolts of light flashed in the sky. Lightning strikes the San Julián region of western El Salvador several times a year, and her neighbors fear storms more than they fear the march of diseases — first dengue, then chikungunya, now Zika. Flor worried about a lot of things, since she was pregnant.
Late in the afternoon, when the pains had somewhat eased, Flor thought she might go to a dammed-up bit of the river near her house to bathe. She is thirty-five and has lived in the same place all her life, where wrinkled hills are planted with corn, beans, and fruit trees. She took a towel and soap and walked out into the rain. Halfway to the river, the pains returned and overcame her. The next thing Flor remembers, she was in a room she didn’t recognize, unable to move. As she soon discovered, she was in a hospital, her ankle cuffed to the bed, and she was being investigated for abortion.
Average duration of a Japanese prime minister’s tenure since August 1993, in months:
Brain shrinkage has no effect on cognition.
An Indianapolis fertility doctor was accused of using his own sperm to artificially inseminate patients, and a Delaware man pleaded guilty to fatally stabbing his former psychiatrist.
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“Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'”