When The FISA Court Rejects A Surveillance Request, The FBI Just Issues A National Security Letter Instead

from the oversight! dept

We’ve talked quite a bit about National Security Letters (NSLs) and how the FBI/DOJ regularly abused them to get just about any information the government wanted with no oversight. As a form of an administrative subpoena — with a built in gag-order — NSLs are a great tool for the government to abuse the 4th Amendment. Recipients can’t talk about them, and no court has to review/approve them. Yet they certainly look scary to most recipients who don’t dare fight an NSL. That’s part of the reason why at least one court found them unconstitutional.

At the same time, we’ve also been talking plenty about Section 215 of the PATRIOT Act, which allows the DOJ/FBI (often working for the NSA) to go to the FISA Court and get rubberstamped court orders demanding certain “business records.” As Ed Snowden revealed, these records requests can be as broad as basically “all details on all calls.” But, since the FISA Court reviewed it, people insist it’s legal. And, of course, the FISA Court has the reputation as a rubberstamp for a reason — it almost never turns down a request.

However, in the rare instances where it does, apparently, the DOJ doesn’t really care, knowing that it can just issue an NSL instead and get the same information. At least that appears to be what the DOJ quietly admitted to doing in a now declassified Inspector General’s report from 2008. EFF lawyer Nate Cardozo was going through and spotted this troubling bit:

If you can’t read it, it says:

We considered the Section 215 request for [REDACTED] discussed earlier in this report at pages 33 to 34 to be a noteworthy item. In this case, the FISA Court had twice declined to approve a Section 215 application based on First Amendment Concerns. However, the FBI subsequently issued NSLs for information [REDACTED] even though the statute authorizing the NSLs contained the same First Amendment restriction as Section 215 and the ECs authorizing the NSLs relied on the same facts contained in the Section 215 applicants…

In other words, the FBI had a neat way to get around a rare FISA Court rejection: just issue an NSL and ignore the First Amendment concerns.

Apparently, to some, whatever weak “oversight” there is from the FISA Court really just means “find another door in to violate the same Constitutional issues.”

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Comments on “When The FISA Court Rejects A Surveillance Request, The FBI Just Issues A National Security Letter Instead”

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15 Comments
That One Guy (profile) says:

Good on the surface, rotten at the core

When the judge ruled that NSL’s were unconstitutional, instead of letting the government continue to use them while they appealed the decision, he should have blocked them entirely.

‘We acknowledge that your actions are unconstitutional, but you may continue to do them for the years it will take for the appeal to make it through the court’ is actually worse than no ruling at all, because it allows the FBI or any other agency that uses NSL’s to point to the eventual appeal in order to dismiss any other legal challenges they might face regarding them.

Put plainly, the judge screwed up, and rather than hand a victory to the public and their rights, he instead gave it to the FBI and those using NSL’s, as this article shows.

Dean says:

Re: Good on the surface, rotten at the core

Do you seriously believe the Department of “Justice” would have complied with such a court order? Everything about this whole program screams “we’ll do whatever we want, and you can’t stop us.” They don’t give a crap. No one in the legislative branch is going to stop them. Obama doesn’t care. So it will continue until these weasels decide to close up shop, which will happen precisely never.

Anonymous Coward says:

Once again we see how the oversight really works and it means rather than strong as the word to describe it one should use the word, non-existent.

One should also note that not only the FBI but all the rest of the three letter alphabet soup are going to each other to share info or request the one that can get around such a court finding obtain the info for them even though they have been told they can’t do it themselves.

Then when you add the take over by insiders into the oversight groups, suddenly you have no oversight at all other than in name only.

So much for being legal and proper.

Anonymous Coward says:

Who gives the FBI permission to issue a NSL? The President, the Attorney General, or does the FBI issue themselves permission? All three of them are part of the executive branch, under the President’s authority.

Somebody is going over the Judicial Branch’s head. One of three supposed branches to provide checks and balances against government abuse.

If the DOJ or President are in fact going over the Judicial Branch’s head. I believe the Judicial Branch deserves a explanation and evidence for why they’ve been removed from one of the three oversight bodies enshrined into the constitution of this Republic, for which it stands.

Unless they’re perfectly happy to get steam rolled by the Executive Branch’s war on terror. With all the classification “trust us” surrender your rights or a terrorist might kill you stuff Benjamin Franklin warned us about back in the 1700’s.

Anonymous Coward says:

Re: Re: Re: Re:

Just as soon as all of the lazy people stop paying the politicians in votes to take from others, giving a lot to themselves then a little bit to those poor voters.

The Constitution works just fine, unfortunately it is really just a piece of paper, and without honest people standing behind it, there is no value. Just like a gun, it really depends on the person standing behind it on how useful it becomes.

Hans says:

Re: Re:

“Who gives the FBI permission to issue a NSL? The President, the Attorney General, or does the FBI issue themselves permission?”

We the people, do. You and me, through our elected representatives. And then we keep renewing that authority every few years. It’s part of the PATRIOT Act. EFF and Wikipedia have good articles, if you’re actually interested enough to google. They’re regularly misused and the FBI has repeatedly lied about their (mis)use.

If we don’t like this sort of FBI behavior, perhaps we should reconsider who we elect to represent us?

BP says:

For a whole body of law that seems never to get much discussion, one need only look at the rules promulgated by Military Tribunal One at Nuremburg, particularly in the Doctor’s cases, which have some extremely important laws and principles that are far too often ignored or overlooked in the United States. So look. Dig deep. There’s much to find there that should be making its way into courts in the US but which seldom does. Here’s a starting point for anyone interested. Fascism is unfortunately alive and too well in this country and abroad from my perspective.

https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights

Even though I have great admiration for the one lawyer who dared to ask the question at a Bush Administration White House meeting about torture “Why are we discussing this in the White House” still left room for complaints from one particular disenchanted husband of a nice lady librarian that these rules could be used to defend. http://www.joebageant.com/joe/2004/05/john_ashcroft_k.html
Good old Joe, God bless his drug addled-soul, he had the audacity to ask the man who hated naked Roman statues an important question. (But I still find some comfort in knowing that Mr. Ashcroft’s co-conspirator in another matter is in charge of some of these kinds of things that still matter).

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