Covert FBI Power to Obtain Phone Data Faces Rare Test

The Wall Street Journal:

Early last year, the Federal Bureau of Investigation sent a secret letter to a phone company demanding that it turn over customer records for an investigation. The phone company then did something almost unheard of: It fought the letter in court.

The U.S. Department of Justice fired back with a serious accusation. It filed a civil complaint claiming that the company, by not handing over its files, was interfering "with the United States' sovereign interests" in national security.

The legal clash represents a rare and significant test of an investigative tool strengthened by the USA Patriot Act, the counterterrorism law enacted after the attacks of Sept. 11, 2001.

The case is shrouded in secrecy. The person at the company who received the government's request—known as a "national security letter," or NSL—is legally barred from acknowledging the case, or even the letter's existence, to almost anyone but company lawyers.

"This is the most important national-security-letter case" in years, said Stephen Vladeck, a professor and expert on terrorism law at the American University Washington College of Law. "It raises a question Congress has been trying to answer: How do you protect the First Amendment rights of an NSL recipient at the same time as you protect the government's interest in secrecy?"

The confidentiality requirements make it impossible to definitively identify the company fighting the case. Its name and other identifying details have been redacted in court documents obtained by The Wall Street Journal.

The phone company's lawyer declined to name his client or respond to questions about its identity.

There are thousands of telecom companies in the U.S. However, the court papers offer clues that can be used to narrow down the list. The Journal cross-referenced the court papers against corporate websites and Federal Communications Commission records of telecom firms, and identified five firms that appeared to be possible matches with the company described in the case.

Four of the five companies denied any involvement in the case and declined to be interviewed about national security letters. At the fifth company, a top executive declined to confirm or deny, either on or off the record, whether his firm had received an NSL or is involved in the case.

That company, Working Assets Inc., runs a San Francisco-based telecom subsidiary called Credo, and uses some of its revenue to support liberal causes. The chief executive of Credo, Michael Kieschnick, offered his firm's view, in general terms, of these types of government requests. "There is a tension between privacy and the legitimate security needs of the country," he said. "We think it is best to resolve this through grand jury or judicial oversight."

Unlike search warrants, NSLs don't require a judge's oversight.

National security letters, which date back to the 1980s, have become more common since the passage of the Patriot Act, which expanded the government's ability to use them to collect information about people. As long as the head of an FBI field office certifies that the records would be relevant to a counterterrorism investigation, the bureau can send an NSL request without the backing of a judge or grand jury.

Full article can be found here.

Eric Holder's 'Fast and Furious' Woe

From CNN:

Schadenfreude -- joy at the misfortune of others -- is a bad thing.

So I've been trying to resist temptation these past months as I watch Attorney General Eric Holder deal with public and congressional reaction to the "Fast and Furious" scheme, the failed attempt by the Bureau of Alcohol, Tobacco, Firearms and Explosives to seed and then track U.S. firearms to Mexican drug cartels.

Fast and Furious was a secretive, high-risk operation seemingly intended to deal with an intractable problem abroad. On those grounds, some may be tempted to equate it to a CIA covert action.

But even if some attributes are similar -- tough problem, edgy solution, inherent complexity, great secrecy, high operational and political risk -- it was definitely not a covert action since those are clearly defined in an executive order as the province of the Central Intelligence Agency.

Beyond that, if it had been a true covert action, the attorney general would have had to give his opinion as to its lawfulness beforehand; the implementing agency would have been required to exhaustively articulate risk; the National Security Council would have had to judge it favorably; President Barack Obama would have had to authorize it; and the Congress would have had to have been briefed before its implementation.

And all concerned would have had the opportunity to reject a bad idea, whatever its rationale.

These routine safeguards not only protect agencies, their leaders and their officers from legal and political jeopardy, they also protect the government from serious missteps.

Now Holder, without such safeguards in place, must defend himself against some very tough accusations, including one by some skeptics that the operation was intended principally to discredit, and thereby justify further regulation of, firearms dealers.

This is where the schadenfreude comes in.

After the congressional elections of 2006, the CIA was forced to defend edgy (often controversial and sometimes unsuccessful) actions in a tough political environment. President George W. Bush was politically weakened, the Senate and the House were under Democratic control and a presidential election was in the offing.

On the Hill, the questions were aggressive, often partisan and, in my view, sometimes even deeply mean-spirited and unfair to the many intelligence professionals who were putting their lives and careers on the line in a very successful effort to protect America from further attack. The agency dealt with the committees as best a nonpolitical organization could, fully recognizing that, although congressional oversight was a necessary instrument, it could sometimes be a difficult one.

But any personal instinct toward some common "executive branch" empathy for Holder is muted not only by the dubious character of Fast and Furious, but by some of the attorney general's other actions, as well. While out of office, for example, he famously called for a "reckoning" for CIA officers and other officials who authorized and conducted operations that were edgy and risky and intended to deal with difficult circumstances.

Once in office, he launched a "reckoning" of CIA renditions, detentions and interrogations of terrorists by directing the Justice Department to reopen investigations closed years before by career prosecutors. This decision was opposed by then-CIA Director Leon Panetta and seven of his predecessors, and Holder reportedly made the decision without reading detailed memos prepared by those career prosecutors declining to pursue further proceedings.

The CIA officers affected by this may be forgiven some feelings of irony when they now hear the attorney general repudiating some of the charges made against his officers by stating: "Those who serve in the ranks of law enforcement are our nation's heroes and deserve our nation's thanks, not the disrespect that is being heaped on them by those who see political advantage."

Of course, it was also Holder who decided in 2009 to release what had been secret DOJ memos outlining the details and providing the legal justification for the Bush administration's interrogation program. The release was defended by the administration as part of a broad commitment to "transparency."

Full article can be found here.

Seattle Police Issues in US DOJ Report

An 11-month investigation by the Department of Justice into the Seattle Police Department has uncovered widespread use of excessive force and constitutional violations, especially against people of color, by officers at the Seattle Police Department. The 67 page report details a number of issues with the Seattle Police Department with interesting findings, for example:

"Use of Force – We find that SPD engages in a pattern or practice of using unnecessary or excessive force, in violation of the Fourth Amendment to the United States Constitution and Section 14141. Deficiencies in SPD’s training, policies, and oversight with regard to the use of force contribute to the constitutional violations."

Good to know if litigating in Seattle. Full coverage in the Seattle Times as well including the Seattle Police's response today.

Justice Department Asks Appeals Court To Reconsider Ruling Allowing Challenge To Warrantless Wiretapping Law

From the ACLU:

The Justice Department late Thursday petitioned a federal appeals court to rehear a lawsuit filed by the American Civil Liberties Union challenging the FISA Amendments Act (FAA), which gives the executive branch virtually unchecked power to collect Americans' international emails and telephone calls. In March, a three-judge panel of the U.S. Court of Appeals for the Second Circuit unanimously ruled the plaintiffs have the right to challenge the constitutionality of the law. Now the government wants all 11 judges of the appeals court to reconsider that ruling.

The ACLU filed the lawsuit in July 2008 on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and email communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials and victims of human rights abuses located outside the U.S. The Justice Department is arguing that the plaintiffs should not be able to sue without first showing that they have, in fact, been monitored under the program – information that the government refuses to provide.

"The Obama administration's effort to shield government surveillance programs from judicial review is disappointing and dangerous," said Jameel Jaffer, Deputy Legal Director of the ACLU, who argued the case before the appeals court. "If the administration's argument were to prevail, Americans' privacy rights would be left entirely to the mercy of the political branches. The appeals court should reject the administration's petition for rehearing and instead allow the trial court to evaluate the constitutionality of the surveillance statute our clients have challenged."

The government's latest request comes just after the FBI provided a surprising explanation for withholding information about its surveillance activities under the Freedom of Information Act (FOIA). Despite a lawsuit by the ACLU, the government has refused to identify which telecommunications companies are facilitating the warrantless wiretapping program because, the FBI's court filing said, "The stigma of working with the FBI would cause customers to cancel the companies' services and file civil actions to prevent further disclosure of subscriber information." The filing added that such consequences would also prompt the companies themselves to resist taking part by filing lawsuits of their own.

"The government doesn't want Americans to know whether their internet or phone companies are cooperating with the government's dragnet surveillance program because people and businesses might file lawsuits asserting their constitutional rights," said Alexander Abdo, staff attorney with the ACLU National Security Project. "The government should not be withholding information simply to insulate its surveillance activities from judicial review. The courts have an important role to play in ensuring that government surveillance is consistent with the Constitution."

More information about the ACLU lawsuit challenging the FAA is available at: www.aclu.org/national-security/amnesty-et-al-v-clapper

More information about the FOIA lawsuit for records about the FAA, including the FBI's response, is available at:  www.aclu.org/faa

DOJ FOIA Guide

The FOIA generally provides that any person has the right to obtain access to federal agency records except to the extent those records are protected from disclosure by the FOIA. Agencies increasingly provide a great deal of information on their websites so before making a request you are encouraged to review the materials already posted on agency websites, as you may find there the information you are interested in.

The FOIA applies to records of the Executive Branch of the federal government and does not provide access to records held by Congress, the federal courts, advisory offices of the President, state or local government agencies, or by private businesses or individuals. All states have their own statutes governing public access to state and local government records; state agencies should be consulted for further information about obtaining access to their records.

This Reference Guide is designed to familiarize you with the specific procedures for making a FOIA request to the United States Department of Justice (DOJ). The process is neither complicated nor time consuming. Following the guidance below will make it more likely that you will receive the information that you are seeking in the shortest amount of time possible. This Reference Guide also includes descriptions of the types of records maintained by DOJ's bureaus, divisions, offices, and boards, which are collectively referred to as DOJ's "components." This Guide provides contact information for all DOJ components so that you may contact those components directly. DOJ's FOIA home page, which contains this Reference Guide, is located at www.usdoj.gov/foia.

Initially, it is important to understand that there is no central office in the government that processes FOIA requests for all federal departments and agencies. Each federal department and agency responds to requests for its own records. Therefore, before sending a request to DOJ you should determine whether DOJ is likely to have the records you are seeking. Each federal department and agency is required to provide reference material to assist those who wish to request records from them. Accordingly, you should view the websites of any federal agency which might have records you seek. By doing so you will learn what records are already available on the agency's website and you will also be able to determine which agency is likely to maintain the records you are seeking. Contact information for other federal departments and agencies is attached as Attachment A of this Guide, and is also available on DOJ's FOIA home page at http://www.usdoj.gov/oip/foiacontacts.htm.

The formal rules for making FOIA requests to DOJ are set forth in Chapter 16 of DOJ's regulations. These regulations are available on DOJ's FOIA website under "Making a FOIA Request" (click on "DOJ FOIA and Privacy Act Regulations"). In most cases this Reference Guide should provide you with all the basic information that you will need for submitting requests.

 

2009 National Institute of Justice Report to Congress

With some remarkably honest statistical analysis, DOJ's National Institute of Justice 2009 Annual Report to Congress has a wealth of information for the criminal investigator and practitioner. With study results from Sex Offender Registration (studies show doesn't curb recidivism and researchers question cost of implementation (!)); forensic science in the U.S. (could be better); using DNA to clear the wrongly convicted (200 + freed and counting); improving reentry programs; and improving law enforcement technology. The report is worth a perusal as it gives a sense of what has been and will be funded for law enforcement as well as some helpful information that can be used in sentencing issues with information on courts and recidivism.

DOJ abandonds attempt to warrantless access of email

CNET report here

From FourthAmendment.com

The U.S. Justice Department has abruptly abandoned what had become a high-profile court fight to read Yahoo users' e-mail messages without obtaining a search warrant first.

In a two-page brief filed Friday, the Obama administration withdrew its request for warrantless access to the complete contents of the Yahoo Mail accounts under investigation. CNET was the first to report on the Denver case in an article on Tuesday.

While We are on the Topic of Wiretapping...

The Department of Justice released a report this week about the FBI’s Communications Analysis Unit (CAU)which found "shocking" violations, including embedded telecom employees providing customer phone records in response to post-it notes.

Post it notes?

FOIA Request Added

A permalink has been added under our subpoena sidebar to the Department of Justice Freedom of Information Act (FOIA) request page. The DOJ FOIA site has a list of principal FOIA contacts for federal agencies. For example, there are FOIA contacts for the Department of Veteran's Affairs, the Department of Homeland Security, and the Department of Justice's Handbook.

Foreign Bribery Investigation Leads to Indictments

From The Blog of Legal Times: (full article here)

Nearly two dozen corporate executives and employees were arrested Monday in Las Vegas and in Miami in the first large-scale foreign bribery investigation using undercover federal agents, the Justice Department announced today.

Sixteen indictments were unsealed today in the U.S. District Court for the District of Columbia charging executives and employees in the military and law enforcement equipment industry with violations of the Foreign Corrupt Practices Act. Twenty-one people were arrested Monday at a convention in Las Vegas. The indictments were returned in federal court in Washington in December.

Justice Department Orders New Crackdown on Tribal Crime

From ABC News:

(AP) - The Justice Department is ordering prosecutors in 33 states to step up efforts to combat crime on Indian reservations, particularly offenses against women and children.

Attorney General Eric Holder was announcing the effort after his deputy, David Ogden, sent a memo instructing those federal prosecutors to do more to fight tribal crime.

The memo says 47 new prosecutors and FBI personnel will be assigned to this work.

On tribal lands, federal officials are usually responsible for prosecuting serious crimes. While the nationwide crime rate is falling, statistics show American Indians are victims of violent crime at more than twice the national rate — and some tribes have murder rates against women ten times greater than the national average.

Full article here.

Key DOJ Spots-Stay Tuned

From Sentencing Law and Policy

More news about likely key players in Obama Administration's Justice Department

The Blog of Legal Times has this new post titled "More Names Emerge for Key DOJ Slots." Here are snippets that should be of particular interest to those interested in key players for the federal criminal justice system:

We're getting a clearer picture of the new Justice Department’s top ranks, as Attorney General nominee Eric Holder Jr.’s confirmation hearings begin.

The leading candidate to head the Justice Department's Criminal Division, Lanny Breuer, who is Holder’s partner at Covington & Burling, was named by the The Washington Post last week. The BLT has learned of a few more frontrunners for top DOJ slots:...

Georgetown law professor Neal Katyal, who successfully argued the landmark detainee rights case Hamdan v. Rumsfeld before the Supreme Court, is the top pick for principal deputy solicitor general, the office’s No. 2 spot, the sources say. From 1998 to 1999, Katyal (Yale Law) served as Holder’s national security adviser in the Justice Department.

Eric Holder as next Attorney General

This from Sentencing Law and Policy regarding Eric Holder as President-Elect Obama's pick as Attorney General.

1. Race: The import and impact of racial issues in all aspects of the work of the federal Justice Department (both criminal and civil) should not be overlooked, even though war on terror and political issues have dominated modern DOJ and AG discussions. An appointment of the first African-American Attorney General is therefore noteworthy and important for many reasons. And, while many aspire for post-racial dialogues about crime and justice, the interplay between race and justice will be that much more salient when Eric Holder becomes the nation's top cop.

2. Tough: Jeff Rosen wisely notes here that, because Holder "has impeccable credentials as a tough-on-crime prosecutor," he might be uniquely positioned to achieve a "Nixon in China on Crime." While many might be concerned about his past connection to all the tough-on-crime posturing during the Clinton Administration, that very background might give him a unique ability and unique credibility if and when he tries to turn the corner on "tough-on-crime" in an effort to now be "smart-on-crime."

3. Tech: I was pleased to learn during this NPR segment that Holder is, according to a close friend, "a technology junkie." As some of my regular technocorrections blogging helps to highlight, I expect some of the hardest and most unpredictable crime and justice issues on the horizon will involve technology issues. Whatever his policy positions or instincts, the fact that Holder has an affinity and comfort with technology should be a great assert for his new job.