FBI can obtain phone records without oversight, Justice Dept memo claims

By Nathan Diebenow
Saturday, February 12th, 2011 -- 5:35 pm

Tags: american civil liberties, american civil liberties union, civil liberties union, electronic frontier foundation, general, inspector, law,mcclatchy newspapers, memo, phone

Without court oversight, the nation's top law enforcement agency can obtain domestic records of telephone conversations made to international receivers, the Justice Department claimed recently.

"[The Office of Legal Counsel] agreed with the FBI that under certain circumstances (word or words redacted) allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency," the Justice Department's inspector general said in a recent report by McClatchy Newspapers.

The claim put forth in the document released to McClatchy seemed to indicate that the Obama administration has continued the previous administration's policies.

The Bush administration maintained that the FBI needed such policing powers in order to stop possible terrorism. Critics of the FBI's surveillance program stated that the tactic was frequently applied in abusive manners.

Kevin Bankston, a lawyer with the Electronic Frontier Foundation, told McClatchy that the OLC's disclosure that explained its legal position on part of the 1978 federal wiretapping law was a missing puzzle piece.

"Apparently, they've decided that this provision means that your international communications are a privacy-free zone and that they can get records of those communications without any legal process," Bankston said.

Bankston added that the law would still prevent the telecommunication companies from voluntarily giving the FBI their customers' data even upon request.

The Justice Department failed to provide McClatchy with a copy of a memo the newspaper group had originally requested, a move which countered the Obama administration's claim to perform its duties more transparently.

The American Civil Liberties Union told McClatchy that the Justice Department should not withhold the legal reasoning it uses to justify the FBI's authority in gathering citizens' telephone records.

"The law should never be secret," said Michael German, an ACLU spokesperson who is a former FBI agent.

At the time Obama authorized the released four Bush-era interrogation memos previously held secret, he said information contained in them had already been widely reported and would not harm ongoing investigations. Furthermore, the techniques described in them such as waterboarding had ceased.

However, McClatchy noted that information contained in the new yet secret OLC memo was also in the public record. The inspector general added in a report that the FBI broken the law repeatedly as a result of an informal review of the phone surveillance program that the secret memo covered.