Glenn Fine to Investigate Government Use of PATRIOT Powers Again

Main Justice reports that Pat Leahy and DOJ’s Inspector General Glenn Fine have been chatting about further IG review of the FBI’s use of the several PATRIOT provisions that were contentious issues in last years attempt to reauthorize the PATRIOT Act. This means that Fine is going to do what the legislation would have mandated–conduct further reviews of these authorities–on his own. But I’m also interested in the scope Fine lays out for his review in his response to Leahy.

We intend to initiate another review examining the FBI’s use of NSLs and Section 215 orders for business records. Among other issues, our review will assess the FBI’s progress in responding to the OIG’s recommendations in the prior reports. In addition, we intend to examine the number of NSLs issued by the FBI from 2007 through 2009, and we will closely examine the automated system to generate and track NSLs that the FBI implemented to address the deficiencies identified in the OIG reports.

In addition, our review will cover the FBI’s use of Section 215 orders for business records. It will examine the number of Section 215 applications filed from 2007 through 2009, how the FBI is using the tool today, and describe any reported improper or illegal uses of the authority. Our review will also examine the progress the FBI has made in addressing recommendations contained our prior reports that the FBI draft and implement minimization procedures specifically for information collected under Section 215 authority.

We also intend to conduct a programmatic review of the FBI’s use of its pen register and trap and trace authority under the FISA. That part of the review will examine issues such as how the FBI uses the authority to collect information, what the FBI does with the information it collects, and whether there have been any improper or illegal uses of the authority either reported by the FBI or identified by the OIG.

I find the scope interesting, first of all, because it would put all three of these provisions–NSLs, 215, pen registers–into one report. Given the way they’ve been used together in the past (Section 215 was used to get contact data more expansive than available under pen registers, for example), it will be interesting to see how Fine understands these provisions to work together. I could be overreading, but Fine seems to have a sense that the “what the FBI does with the information” might be interesting.

I’m also interested in his specific promise to investigation his recommendation that DOJ develop minimization procedures. I would bet money DOJ has done nothing to respond to that recommendation. If so, what we may get in the report will be a (probably redacted) discussion of how DOJ has collected a bunch of information from otherwise innocent people and kept it. Remember the probable use of Section 215 in the Najibullah Zazi case (focused on some associates who also bought acetone)? Those people appear never to have been charged, suggesting the possibility that some Muslims who bought beauty supplies remain in a DOJ database even though no connection with Zazi’s plot has been found. And then consider the suggestion that FBI is using Section 215 to collect more than just “records,” but also much more intrusive medical records (and possibly DNA). That might create some database indeed, full of information that was not minimized.

So it sounds like it might result in an interesting report.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

22 replies
  1. fatster says:

    O/T but related. More questions.

    Federal judge removes himself from Guantanamo case

    “WASHINGTON — A federal judge recused himself Wednesday from a case challenging the detention of a Guantanamo prisoner after the detainee’s lawyer complained that views he expressed in a ProPublica interview meant he couldn’t be fair.

    “In a January article exploring the court’s role in policing indefinite detention, Chief Judge Royce Lamberth of the U.S. District Court in Washington, D.C., was quoted as saying judges were struggling with how to assess the risks posed by detainees. Referring to no detainee in particular, he said, “How confident can I be that if I make the wrong choice that he won’t be the one that blows up the Washington Monument or the Capitol?”

    LINK.

  2. bobschacht says:

    EW,
    Thanks for this news. But now Fine is an IG, right? So he’s not going to indict anyone, but just write a sternly worded opinion? Is that all he can do?

    Bob in AZ

    • bmaz says:

      Can make an official referral for prosecution. If the submission is packaged well enough, it is very hard for DOJ to explain a declination.

      • BoxTurtle says:

        Explain?!? Why go to that trouble? Just decline to prosecute without comment. You think the same congress that approved this nonsense in the first place is going to investigate why it’s not being investigated? Leahy is a Chairman, but he’s still only one vote.

        Boxturtle (He can’t even get that obviously bogus Anthrax report reopened)

  3. BoxTurtle says:

    I’m thinking anything interesting will be redacted. The government will never willingly show how much data they’ve collected and on whom. Because if they did, somebody might ask to see the 200 Million search warrants.

    Boxturtle (I think they’re planning to solve the national debt by selling that database to marketeers)

  4. BoxTurtle says:

    “How confident can I be that if I make the wrong choice that he won’t be the one that blows up the Washington Monument or the Capitol?”

    I wonder if he worries about that when he has an abortion protestor in front of him.

    Boxturtle (Or any non-brown, non-moslem for that matter)

    • skdadl says:

      Thanks for that link, klynn. My memory as usual is fuzzy, but I think this development was foretold to us — several months back, someone linked here to news that the U.S. would be engaging with the ICC, but mainly to neuter basic principles like the prosecution of the crime of aggressive war. EW herself may have written to this? But it may have been in comments.

      “Controversial institution of law” my eye. To whom is the ICC “controversial,” President Obama? You, maybe. Not most of the rest of the world.

      And that only the Nuremberg and Tokyo tribunals have ever prosecuted the crime of aggressive war somehow makes it — oh, what would be the word Alberto Gonzales might choose? — quaint? Some people gotta lotta noive.

      • klynn says:

        It may have been my link to a Guardian article some months back.

        Still, I thought the comment is worth looking at and had me wondering why 2017?

        • skdadl says:

          Well, now that I’ve actually done my homework *blush* and read the ICH article, I’m reminded that it was Harold Koh we were talking about — he was predicting then that the ICC would need him to help it along in just this way, and a number of us cast nasturtiums in his general direction.

          There are several things wrong with that ICH article (the Tokyo tribunal was U.S.-run, but the main tribunal at Nuremberg, the one that prosecuted the crime of aggressive war, was international — ie, the then-Allies — even though the subsequent individual trials like the Doctors’ and Lawyers’ trials were, I know, also U.S.-run, and admirably so).

          But what leaps out from the outline of Koh’s position is the condescension, the presumption that it’s a good thing for benighted peoples in Africa especially to have themselves sorted out by the ICC, but heaven forfend that kind of justice should ever come to, y’know, us powerful Western white folk.

  5. Hmmm says:

    I suppose the more the publicly released version is redacted, the smaller the explanation would need to be.

    “Spit.” is, I believe the customary rejoinder here.

    • PJEvans says:

      Only on the excuses he’ll offer us for why it’s necessary not to prosecute anyone and why it’s necessary to torture (excuse me, ‘strenuously intterogate’) innocent people.

      • fatster says:

        I just can’t get a thing past you, PJEvans. I was substituting ‘abuse’ for ‘torture’, but your ‘strenuously interrogate’ works much better.

    • bobschacht says:

      Ah. So at last the Durham inquiry is ready to say whether or not the DOJ needs to investigate CIA torture. Because, after all, Durham was not “investigating,” but merely “reviewing.” And of course even if he recommends an investigation, it will only be for acts in excess of the Yoo/Bybee “get out of jail free” memos.

      I used to have a stock phrase teasing people for “getting ready to commence to begin.” So, it seems like the DOJ may be nearing the end of its “getting ready” phase, which has taken what, a year? …to move on to “commence”. We are left to hope that they will eventually “begin.”

      What is the legalese equivalent of “getting ready to commence to begin”?

      Getting ready = review?
      Commence = investigate?
      Begin = empanel a grand jury?

      Bob in AZ

      • bmaz says:

        Yes. And ain’t none of those contain the phrase “indict”. The good news is I believe Durham does have a GJ he has been operating under so all he would have to do is present to them, which can be done in a day if he is geared up and ready. But there has to be a determination to actually do so.

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