Obushma Watch Vol. 99: National Security Letter Edition


Reason Contributing Editor Julian Sanchez, writing at the American Prospect, looks at another Obama change promise lost, to, as Sanchez puts it, "restore some of the checks on government surveillance power that had been demolished in the panicked aftermath of the September 11 attacks."

More from Sanchez on this byzantine story of how governments tend to want the power to surveill, and will do whatever it takes to keep what they got and keep trying to get more:

[L]ast week…a Democratic-controlled Congress quietly voted to reauthorize three controversial provisions of the USA Patriot Act without implementing a single one of the additional safeguards that had been under consideration—among them, more stringent limits on the national security letters (NSLs) Obama had once decried. Worse yet, the vote came on the heels of the revelation, in a blistering inspector general's report, that Obama's Office of Legal Counsel (OLC) had issued a secret opinion, once again granting retroactive immunity for systematic lawbreaking—and opening the door for the FBI to ignore even the current feeble limits on its power to vacuum up sensitive telecommunications records.

NSLs…allow investigators to obtain a wide array of financial records and telecommunications transaction data without a court order—revealing the phone numbers, e-mail accounts, and Web addresses with which their targets have been in contact….

But as a detailed report released last month by the office of the inspector general (OIG) revealed, between 2003 and 2006, the FBI sought to stretch its NSL powers beyond even these ample boundaries. Investigators obtained thousands of records from telecommunications providers using a made-up process called an "exigent letter"—which essentially promised that a proper NSL would be along shortly. Among those whose records were obtained in this way were reporters for The Washington Post and The New York Times—in violation of both the law and internal regulations requiring that the attorney general approve such requests.

Still more incredibly, investigators sought records pertaining to more than 3,500 telephone numbers without any process at all, simply requesting records verbally or via scrawled Post-It notes….

Following standard practice, the OIG sent a draft copy of its report to the FBI for comment before publication. Understandably distressed by the watchdog's finding that analysts had broken the law repeatedly and systematically over a period of years, FBI attorneys scrambled for retroactive cover. As a heavily redacted section of the report explains, they hatched a novel theory, according to which some broad class of records was actually exempt from the requirements of the ECPA, and therefore eligible to be handed over "voluntarily" by the telecoms. Even in the freewheeling days of the Bush administration, apparently, nobody had come up with this particular rationalization for evading federal privacy statutes—but it would still serve as a retroactive excuse if Obama's Office of Legal Counsel could be persuaded to bless the new reasoning.

Shamefully, the OLC appears to have done just that in a secret opinion issued in January…

And the depressing but true conclusion, after noting that the latest Patriot renewal will have to be reconsidered again in a year:

The question, given the muted public reaction to the abuses that have already been disclosed, is why we should hope legislators will be any more willing to expend political capital resisting the intelligence community's demands a year from now. The "choice between the liberties we cherish and the security we provide" may be a false one, but in the current political climate, it appears to be an easy one as well.

Sadly, yes.