WASHINGTON — The Obama administration's Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.
That assertion was revealed — perhaps inadvertently — by the department in its response to a McClatchy request for a copy of a secret Justice Department memo.
Critics say the legal position is flawed and creates a potential loophole that could lead to a repeat of FBI abuses that were supposed to have been stopped in 2006.
The controversy over the telephone records is a legacy of the Bush administration's war on terrorism. Critics say the Obama administration appears to be continuing many of the most controversial tactics of that strategy, including the assertion of sweeping executive powers.
For years after the Sept. 11 attacks, the FBI sought and obtained thousands of telephone records for international calls in an attempt to thwart potential terrorists.
The bureau devised an informal system of requesting the records from three telecommunications firms to create what one agent called a "phone database on steroids" that included names, addresses, length of service and billing information.
A federal watchdog later said a "casual" environment developed in which FBI agents and employees of the telecom companies treated Americans' telephone records so cavalierly that one senior FBI counterterrorism official said getting access to them was as easy as "having an ATM in your living room."
In January 2010, McClatchy asked for a copy of the Office of Legal Counsel memo under open-records laws after a reference to it appeared in a heavily excised section of a report on how the FBI abused its powers when seeking telephone records.
In the report, the Justice Department's inspector general said "the OLC 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."
In its cover letter to McClatchy, however, the OLC disclosed more detail about its legal position, specifying a section of a 1978 federal wiretapping law that the Justice Department believes gives the FBI the authority. That section of the law appears to be what was redacted from the inspector general's report and reveals the type of records the FBI would be seeking, experts said.
"This is the answer to a mystery that has puzzled us for more than a year now," said Kevin Bankston, a senior staff attorney and expert on electronic surveillance and national security laws for the nonprofit Electronic Frontier Foundation.
"Now, 30 years later, the FBI has looked at this provision again and decided that it is an enormous loophole that allows them to ask for, and the phone companies to hand over, records related to international or foreign communications," he said. "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."
Applies to e-mail
That interpretation could be stretched to apply to e-mails as well, he said.
However, Bankston said, even if the law allows the FBI to ask for the records — an assertion he disagrees with — it would prohibit the telecommunication companies from handing them over.
Meanwhile, the refusal to provide to McClatchy a copy of the memo is noteworthy because the Obama administration — in particular the OLC — has sought to portray itself as more open than the Bush administration. The decision not to release the memo means the details of the Justice Department's legal arguments in support of the FBI's controversial and discredited efforts to obtain telephone records will be kept from the public.
The FBI and Justice Department have refused to comment on the matter.