The other day I commented on the ABC report that the government has been collecting secretly the phone records of reporters at ABC News, the NY Times, and Washington Post. Allegedly, this was intended to help the administration to track down leakers inside the CIA who'd spoken to reporters. Yes, Nixon's plumbers are back in business.
A fresh outrage surely, but which kind?
The mystery was solved when the FBI confessed to ABC that it had issued National Security Letters to get the phone records. So there were no warrants, secret or otherwise. It was all done by fiat of the FBI, thanks to the repellent provision in the USA Patriot Act that allows the FBI to decide, on its own stick, that it really would rather do an end run around the Constitution.
The FBI acknowledged late Monday that it is increasingly seeking reporters' phone records in leak investigations.
"It used to be very hard and complicated to do this, but it no longer is in the Bush administration," said a senior federal official....
In a statement, the FBI press office said its leak investigations begin with the examination of government phone records.
"The FBI will take logical investigative steps to determine if a criminal act was committed by a government employee by the unauthorized release of classified information," the statement said.
Officials say that means that phone records of reporters will be sought if government records are not sufficient.
Officials say the FBI makes extensive use of a new provision of the Patriot Act which allows agents to seek information with what are called National Security Letters (NSL).
The NSLs are a version of an administrative subpoena and are not signed by a judge.
It will cheer Americans no end to learn that, though it used to be hard for the FBI to secretly seize citizens' phone records--per the Constitution--the Bush administration has made it all quite easy. In any case, note that the FBI statement indicates that this particular seizure of reporters' phone records involves "the unauthorized release of classified information". I'll come back to that fact.
It just happens that a couple of weeks ago I wrote about this perversion of law: FBI: We don't need no stinkin' warrants. The Bureau had admitted to Congress, in a typically underhanded way, that last year it issued over 9,200 NSLs, not counting all the NSLs it wasn't, well, counting.
On a side note, it's remarkable that yesterday the ABC reporter who broke the story about the FBI seizure of his phone-records, Brian Ross, finally got around to mentioning this weeks-old story about the widespread abuse of National Security Letters. Civil liberties abuses seem to mean a lot more when they're directed against oneself, at least if one is a journalist.
Anyhow as that earlier post of mine pointed out, US District Judge Victor Marrero had already ruled these provisions of the Patriot Act unconstitutional. But all to no avail with the DOJ. The text of this stinkin' law remains embedded in the Federal Code.
(a) Duty to Provide.-- A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.
(b) Required Certification.-- The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may--
(1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and
(2) request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States....
(e) Requirement That Certain Congressional Bodies Be Informed.-- On a semiannual basis the Director of the Federal Bureau of Investigation shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate, concerning all requests made under subsection (b) of this section.
You will search in vain in that text for any provision allowing the FBI to issue NSLs to seize reporters' phone records because of "the unauthorized release of classified information". But since the FBI does not bring its myriad National Security Letters before a judge at all, evidently there was never an occasion for anybody--at least nobody who takes upholding the law to heart--to point out that the FBI had no legal basis for doing it.
The FBI does however have to bring notice of NSLs to the attention of Congress, after the fact. Has the FBI ever told any of the congressional committees cited above that it has seized reporters' phone records by means of NSLs?
Inquiring minds would like to know. We might surmise from the disgust expressed to FBI Director Mueller two weeks ago by Sen. Feingold (of the Judiciary Committee), at the extremely high number of NSLs the FBI was reporting, that if the Senator had been informed that the FBI was seizing reporters' phone records, he would have had one or two very choice things to say about it.
One other question for your Representatives and Senators: During their legislative careers, have they ever happened to notice this text?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This is the First Amendment, the exercise of which rights is supposed to be protected--even under these appalling provisions in the Patriot Act. That would seem to be another strike against the FBI's justification of the seizure of reporters' phone records.
As recent history has demonstrated exceedingly well, a supine press does a pretty inadequate job of keeping the people informed about the grievances for which they might want to petition the Government for redress. How could a supine and blind press possbily be an improvement? That is the direction that Government is pushing the news media, as NPR reported this morning.
But reports about NSA surveillance, combined with the ongoing investigation into who outed CIA officer Valerie Plame, and now the ABC News report all add up to a climate where journalists and writers say it's increasingly hard to get their sources to talk. ...[Michael Isikoff] agrees sources are being intimidated...."Over the last few years, you can feel a palpable chilling effect of the multiple leak investigations that the government has been mounting and you get sources who become extremely jittery about talking to reporters over the phone."
Our government, doing nothing more effectively than driving a wedge between reporters and their sources: Fission Accomplished.
What can you do about these burgeoning spy scandals?
I'll suggest three ways that you can help to put people on the spot. These seem to me the most obvious ways to ensure that our disgust with government spying has real impact.
First, contact your Senators and Representatives who serve on the following committees, asking for a written response stating whether they or the committees were informed by the FBI that it had issued NSLs to seize reporters phone records.
Second, write to your Senators and Representative asking them to investigate `whether during the last five years the federal government has without warrant conducted surveillance or obtained phone records' regarding you or any organizations you belong to. If their offices are inundated with requests from constituents to chase down this information, and pin down the Executive Branch to explain precisely what it has been doing, it will drive the point home forcefully that (a) nobody really knows what this President is up to, (b) the scope of wrong-doing is beyond measure, (c) citizens have specific worries, and these include fears that ordinary groups are under surveillance, and (d) it would really be much better and less trouble to everybody after all if the government would just follow the law in the first place.
Your request to your congressmen should be expressed in general, not specific, terms because the administration's excuses and evasions are always carefully worded to imply much more than they actually state. You can only pin them down by demanding to know broadly whether the government is doing any kind of warrantless spying.
You may recall that last December I urged people to contact Congress when the NSA spying scandal broke, here, here, and here. In particular, I urged people to put their Senators and Representatives on the spot to do specific things to rein in the administration. I argued that the more and the bigger hurdles they were asked by constituents to leap, the more fed up they'd get with Bush's warrantless spying.
Well, they've been dawdling for months so that's doubly true now. Last December, for instance, I asked Sen. Specter's Chief of Staff to investigate whether I personally had been spied upon without warrant. He responded saying that Specter's office could investigate if I wish, but their time would be better spent on legislative matters.
I think it's time to insist that his office spend the time investigating on my behalf, and I'd urge you to do the same. If every congressional office receives scores or hundreds of such requests, they will be obliged to take the matter seriously. I'd wager that rather than trying to satisfy constituents on an individual basis, they'll do what they should have done in the first place--go to the heart of the problem and demand that the Bush administration come clean about what it's up to.
Third, I'd suggest you contact your phone companies, local and long distance (especially the latter), and put them on the spot for answers. Ask them to state in writing `whether without being presented with a warrant they have given or allowed the federal government to have access, either directly or indirectly, to' your phone records or personal information. Ask them also to state in writing that they will not do so in the future, without warrant. If they refuse to do both or either of those things, ask that they tell you in writing why. Make sure that you also state that you prohibit them from doing so ever.
At this stage, the heat is being turned up by lawyers on the dissembling phone companies. Both Bell South and Verizon have denied that they `gave' records to the NSA. It looks like their denials are as carefully worded as anything the Bush administration could have generated. They may, for example, have given the records to some other agency, or to a private company working under contract with a federal agency. Or they may have allowed the NSA to gain access to their system, to `take' what the companies were not permitted under law to `give' them.
Feel free to cross post this elsewhere, as long as it is not a site associated with the NSA, the FBI, or any of the federal beast's other tentacles.