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

Reader Comments

Subscribe: RSS

View by: Time | Thread

  1. identicon
    ProgressiveLibertarian, 14 Feb 2011 @ 10:38pm

    Re: Really guys?

    Above all else because democracy and the Rule of Law matter. Our government is not supposed to have this power. Based on their experiences our founders thought it was a bad idea. We cannot allow a precedent in which government can spy on anyone based on undisclosed, secret laws. Especially when they are also doing the same thing with the terrorist kill list, claiming American citizens and others have broken unknown laws, without proof, and then putting execution orders on them (i.e. Anwar al-Awlaki). Don't know if he is a terrorist or not, but he deserves to have a right to prove his innocence in court like any other American.

    Why does it matter, if you aren't doing anything wrong? Well, only if you aren't doing anything wrong in the eyes of the current politicians in power. Is organizing a third party wrong? Is alternative, non-corporate media wrong? Was the civil right movement wrong? To a corporate bribed politician of one of the establishment parties - read 95% of Congress - it might seem wrong. Especially, if you can claim it as wrong in secret, and not face public scrutiny for it.

    Again, this is the reason for the Rule of Law, and Limited Government. To avoid these kinds of abuses. And it is not merely speculative either. That's why other posters brought up COINTELPRO, look it up. The government spied on Martin Luther King, John Lennon, the Black Panthers and others. Nixon spied on his political rivals. If his rivals had not been the other establishment party, think he would have been caught? Under the current spying program authorized by Bush, we know at the very least in Maryland that anti-death penalty and anti-war activists were targeted for spying and put on terrorist watch lists. Again, don't believe me, look it up.

    Some discount spying, because it is only listening, not action. But information is power. It allows governments to get inside information on groups, and use that to try to attack them or discredit them publicly. In the case of the Black Panthers it was used to insert plants in the group and spread misinformation to promote dissent and distrust within the group, fostering its breakdown. Might not be a group u like, but does this seem an appropriate way for a government to deal with a group it doesn't like, before they had been convicted of wrong doing?

    We also must consider the chilling effect on free speech. Knowing any of their communications can be tapped, will people feel free to speak out against their government, to try to organize, peacefully and lawfully to change it? Could government agencies not single out communities, companies, political groups, Internet forum users, etc. for retaliation (dump government contracts, redirect government projects, release embarrassing or compromising info, reveal identities of internet authors using pen names - often used because of worry of negative reactions from employers) based on learning people's identities through spying? The list of potential abuses go on, as do the examples where known abuses have already happened.

    This "why should you be concerned about privacy if your not a terrorist" reasoning is EXTREMELY dangerous. The greatest threat to our democracy is and always has been from our own government, not any foreign country or terrorist group. Sell out our freedom and what exactly are we defending from the terrorists anyways? The American government? The institution of the State? Our armed forces and political leaders do not take an oath to defend the State or the powers of government, but to uphold the Constitution.

    And yes, civil liberties might make it harder for law enforcement to do its job at times. That's part of the trade off of living in a free country. You can't limit the ability of government to abuse power, without to some degree limiting its ability to use power properly. And in the long run, no matter how successful it may allow the authorities to be in thwarting terrorists, eroding our liberties in the long run will not make us safer from violence, it will expose us to much more. Either through violent repression, violent revolt, or any mix of the two.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Insider Shop - Show Your Support!

Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Report this ad  |  Hide Techdirt ads
Recent Stories
Report this ad  |  Hide Techdirt ads


Email This

This feature is only available to registered users. Register or sign in to use it.