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Domestic surveillance oversight necessary to prevent FBI abuse

Melissa Goodman [staff attorney, ACLU, National Security Project]: "When Americans hear that the military is conducting domestic surveillance we tend to get a little squeamish. Isn't that the FBI's job? What is the military doing exactly? Who are they investigating and why? Well, here is what we do know, thanks to over 1,000 pages of records released to the ACLU by the Department of Defense (DoD) in response to a Freedom of Information Act (FOIA) lawsuit:

    (1) The military is using an intrusive domestic surveillance tool — National Security Letters (NSLs) — secretly to obtain private and sensitive records about people in the U.S., without court approval, and without any real oversight. Unlike court approved search warrants, NSLs are issued unilaterally by a government agency, without court approval, when the agency itself determines that the information is relevant to a terrorism or intelligence investigation. In response to our FOIA lawsuit, the military released copies of over 450 NSLs issued since 9/11 by the Army, Air Force, and Navy that demanded people's sensitive financial or credit records. [NSL documents; NSL statistics, PDF]

    (2) The military might be circumventing the legal limits on its own NSL power by getting the FBI to issue NSLs for Defense Department investigations. There are five statutes that grant power to issue NSLs. 18 U.S.C. § 2709 grants the FBI alone the power to demand Internet, email and phone records from electronic communication service providers and states that businesses "shall comply." Similarly, 15 U.S.C. § 1681u grants the FBI alone the power to demand credit account information and states that the institution "shall furnish" the records. 12 U.S.C. § 3414, 15 U.S.C. § 1681v, by contrast, grant agencies authorized to conduct intelligence or terrorism investigations the power to demand financial and credit records but compliance is mandatory only if the request comes from the FBI. Finally, 50 U.S.C. § 436 allows government agencies to request financial, credit, and travel information about employees suspected of espionage or terrorism.
Under some of these statutes, the military might have limited authority to request financial or credit records and compliance with Defense Department-issued NSLs is voluntary. By contrast, the FBI can demand not only financial and credit records but also Internet, email and phone records and can compel compliance. Given these important differences, we were quite concerned to learn that the military may be evading the limits on its NSL power by simply asking the FBI to demand the records for DoD in strictly-DoD investigations. For example, an internal report on the military's NSL use — recently redacted as a result of our lawsuit — reveals that "a DoD component can submit a Request for Assistance (RFA) where the FBI issues an NSL on a DoD investigation (not joint with FBI)," [report, PDF] that the internal report suggested that the military should start tracking "[t]he number of NSLs issued by the FBI at the request of a DoD component or as part of a joint DOJ/DoD investigation," [report, PDF] and that the internal report suggested the military start training people as to "[h]ow to make an NSL request thorough the FBI" [report, PDF]. These records are hard to square with DoD's misleading assertion to Congress that "DoD does not ask FBI to issue NSLs in conjunction with a DoD investigation [DoD response].

If the military is accessing information it is not legally entitled to (or is getting "mandatory" NSLs rather than "voluntary" ones) simply by asking the FBI to do its bidding, there is a real problem within both agencies. The FBI's NSL power is limited to FBI investigations, and the DoD should not be allowed to do an end run around the statutory limits on its power by simply calling the FBI.
    (3) The military was (and still may be) accessing private domestic records with little oversight, training, or guidance. The FOIA documents also reveal that the military did not even bother to keep track of how many NSLs it issued or what kinds of information it obtained through NSLs. Nor did the military provide real training or guidance on NSL use. [Documents 56, 57, and 72, PDFs]. This shows that there is a dangerous lack of internal oversight, let alone necessary external checks on the military's activity.

    (4) The military is gagging the businesses it demands records from. Military NSLs come with gags. One of the most troubling aspects of the NSL power generally is that the agencies can forbid businesses, financial, and credit institutions from ever disclosing the military has demanded records from them. Every single one of the nearly 450 NSLs released through the FOIA imposed gags on the recipients.
In many ways, these documents raise more questions than they answer. But one thing is clear: whenever the government is permitted to use an intrusive surveillance power in total secrecy, abuse is inevitable. It's worth remembering that the last major revelation about military domestic spying concerned the Pentagon's monitoring of peaceful anti-war protesters and that it tracked protests in a "terrorist threat" database [ACLU report, PDF]. And now, thanks to reports issued by the Department of Justice Inspector General, we already know the FBI has seriously abused its NSL power [ACLU press release]. These agencies cannot and should not be trusted to police themselves."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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