Obama Administration Says It Can Spy On Americans, But Can't Tell You What Law Allows It

from the secret-laws! dept

Remember how President Obama, while campaigning, promised to reject the questionable spying practices of the federal government of President Bush? Yeah, forget all that. Over the past two years, we've seen time and time again that he's actually extended those abuses even further. The latest to come out is that the Justice Department is now claiming that the FBI has the right to get phone records on any call made from inside the US to an international number without any oversight. You may recall a few years back that there was a similar controversy, when it came out that the FBI would regularly just call up phone companies and ask for records -- despite the fact that this violates certain laws designed to protect consumer privacy. Sometimes, they would just use post-it notes.

Apparently, a year ago, McClatchy newspapers put in a FOIA request, asking for the details of a particular Office of Legal Counsel (OLC) memo that was mentioned in the (previously released, but highly redacted) report that showed how frequently the FBI abused the law in this manner. The OLC took its sweet time responding, but finally responded, and in the cover letter admitted that the Obama administration believes it is perfectly legal for the FBI to route around the in-place oversight for getting access to such records and claimed that the law said so.

Which law says so? Oh, see, that they can't say. Yes, the part of the letter that explains which law lets the FBI get these records without oversight was redacted.

It's a secret law! And here I thought, in the US, if the government was going to base actions on a particular law, at the very least, they were supposed to tell you what law. Apparently, the Justice Department under the Obama administration does not believe that to be the case.

Basically, what this means is that the federal government believes that it's free to request information without first getting court approval -- and without telling the public what law says they're allowed to get this information. That's not what the laws on the books seem to say at all. But, of course, big telcos such as AT&T, who are so closely tied to the government, are going to roll over and give the government such info (or, perhaps, give them direct access to the info), even if it violates other laws. Why do you think President Obama voted to support giving telcos retroactive immunity on this issue, while he was running for President despite having earlier said he was against it? Now that he's in power, he apparently is perfectly happy to let the FBI twist the clear intentions of the law to spy on Americans without oversight, and then to refuse to reveal what law he's relying on to make such spying on Americans without oversight legal.

McClatchy quotes Michael German, a former FBI agent, who now works for the ACLU pointing out the obvious:
"It's wrong that they're withholding a legal rationale that has to do with the authorities of the FBI to collect information that affects the rights of American citizens here and abroad.... The law should never be secret. We should all understand what rules we're operating under and particularly when it comes to an agency that has a long history of abuse in its collection activities."
And so far, it doesn't seem like most people care. About the only politician who really seems concerned about this is Senator Wyden, who says this level of secrecy "is a serious problem" and he's "continuing to press the executive branch to disclose more information to the public about what their government thinks the law means." Once again, kudos to Senator Wyden for being one of a very small number of politicians who seems to consistently be concerned about the rights of individuals. But it's sad that the rest of our elected officials aren't up in arms about this. The government shouldn't be spying on Americans, and if it is, it should at least have to tell Americans what law it's basing that decision on.

Filed Under: fbi, justice department, phone records, spying, warrantless


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  1. identicon
    Anonymous Coward, 14 Feb 2011 @ 10:40am

    Re: Re: Facist State?


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