FBI Successfully Runs Out the Clock on DOJ’s Inspector General Review of Use of Phone Metadata

While everyone was focused on USA F-ReDux last week, DOJ’s Inspector General submitted its semiannual report. In it, Michael Horowitz reiterated his complaint that FBI was stonewalling on document production. He listed 4 requests made after Congress defunded such stonewalling on which FBI was still stonewalling at the end of March.

The OIG has sent four letters to Congress to report that the FBI has failed to comply with Section 218 by refusing to provide the OIG, for reasons unrelated to any express limitation in Section 6(a) of the IG Act, with timely access to certain records in ongoing OIG reviews. Those reviews are:

  • Two FBI whistleblower retaliation investigations, letter dated February 3, 2015, which is available here;
  • The FBI documents related to review of the DEA’s use of administrative subpoenas, letter dated February 19, 2015, which is available here;
  • The FBI’s use of information derived from collection of telephony metadata under Section 215 of the Patriot Act, letter dated February 25, 2015, which is available here; and
  • The FBI’s security clearance adjudication process, letter dated March 4, 2015, which is available here.

As of March 31, 2015, the OIG document requests were outstanding in every one of the reviews and investigations that were the subject of the letters above. The OIG is approaching the 1 year anniversary of the Deputy Attorney General’s request in May 2014 to the Office of Legal Counsel for an opinion on these matters, yet that opinion remains outstanding and the OIG has been given no timeline for the issuance of the completed opinion. Although the OIG has been told the opinion is a priority for the Department, the length of time that has now passed suggests otherwise. Instead, the status quo continues, with the FBI repeatedly ignoring the mandate of Section 218 and the Department failing to issue an opinion that would resolve the matter. The result is that the OIG continues to be prevented from getting complete and timely access to records in the Department’s possession. The OIG’s ability to conduct effective and rigorous oversight is being undercut every day that goes by without a resolution of this dispute.

Of particular note, as of March 31, FBI was still stonewalling an October 10, 2014 request (and January 2015 deadline) connected with DOJ IG’s review of how FBI has been using metadata from phone dragnets.

The OIG requested these records in connection with its pending review of the FBI’s use of information derived from the National Security Agency’s collection of telephony metadata obtained from certain telecommunications service providers under Section 215 of the Patriot Act. The timeliness of production is particularly important given that Section 215 of the Patriot Act is set to expire in June of this year.

FBI was also still stonewalling records of how it used DEA’s dragnet, but in the case of phone metadata, Horowitz specifically tied the investigation to the upcoming sunset of Section 215 authority.

DOJ’s IG wanted to review what was happening with the 2-hop dragnet data that got turned over to FBI before Congress reauthorized Section 215. And FBI successfully stalled that effort until after Congress passed a bill that will almost certainly result in far more phone metadata being turned over to FBI, and under far more permissive rules than they had been under.

I’ll explain why that was probably important in a follow-up post. But for the moment, as pundits declare winners and losers on yesterday’s passage of USA F-ReDux (I’ll do my own version of that too, shortly!), it’s worth noting that FBI successfully ran out the clock on its own IG, preventing us from learning about the privacy impact of one little-considered aspect of the dragnet.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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 the Guardian, Salon, and the Progressive, 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 and dog in Grand Rapids, MI.

9 replies
  1. Peterr says:

    The OIG is approaching the 1 year anniversary of the Deputy Attorney General’s request in May 2014 to the Office of Legal Counsel for an opinion on these matters, yet that opinion remains outstanding and the OIG has been given no timeline for the issuance of the completed opinion. Although the OIG has been told the opinion is a priority for the Department, the length of time that has now passed suggests otherwise. Instead, the status quo continues, with the FBI repeatedly ignoring the mandate of Section 218 and the Department failing to issue an opinion that would resolve the matter. The result is that the OIG continues to be prevented from getting complete and timely access to records in the Department’s possession. The OIG’s ability to conduct effective and rigorous oversight is being undercut every day that goes by without a resolution of this dispute.

    “OIG has been given no timeline . . .”? “OIG continues to be prevented . . . “? “. . . oversight is being undercut . . .”?
    .
    Let me offer Rule #1 for writing a Sternly Written Letter: avoid the passive voice like the plague.

    .For example, using most of their own language . . .

    Almost 1 year ago, the Deputy Attorney General of the OIG requested that the Office of Legal Counsel provide an opinion on these matters, yet they have not produced that opinion, nor have they told the OIG when they might complete it. Although the Department has told the OIG that the opinion is a priority, the fact that the Department has not yet produced it after an entire year suggests otherwise. Instead, the status quo continues. The FBI continues to ignore the mandate of Section 218 and the Department still has not issued an opinion that would resolve the matter. The result is that the Department continues to prevent the OIG from getting complete and timely access to records in the Department’s possession. The Department is undercutting the OIG’s ability to conduct effective and rigorous oversight with every day that goes by without a resolution of this dispute.

    Notice the difference?
    .
    . . . they have not produced . . .
    . . . they have not told . . .
    . . . the Department has not yet produced . . .
    . . . The FBI continues to ignore . . .
    . . . the Department still has not issued . . .
    . . . the Department continues to prevent . . .
    . . . The Department is undercutting . . .
    .
    If you’re going to write a Sternly Worded Letter, you need to name names, and put them in the subject of the sentence.

    • wallace says:

      quote”.
      . . . they have not produced . . .
      . . . they have not told . . .
      . . . the Department has not yet produced . . .
      . . . The FBI continues to ignore . . .
      . . . the Department still has not issued . . .
      . . . the Department continues to prevent . . .
      . . . The Department is undercutting . . .”unquote

      Indeed.

      Note to self… file under ..

      GREAT MOMENTS IN REALIZATION THAT SCUMBAG LIARS ARE COLLECTING YOUR TAXES

  2. bloopie2 says:

    I would like to hear more about the new penalties for anyone who exposes how the interaction between Feds and telcos will be happening. Or, maybe I don’t want to know …

  3. wallace says:

    quote (snip)”…it’s worth noting that FBI successfully ran out the clock on its own IG, preventing us from learning about the privacy impact of one little-considered aspect of the dragnet.”unquote

    Yet again, the Legal Imperialists of the USG powers that be thwart the very
    “rule of law” they are mandated to uphold.

    SO.. what are we to do when confronted with recalcitrant authoritarian bureaucratic bullshit???????????????? I’M ASKING WITH EVERY FIBER OF MY SOUL!!!!!!!!!!!!!!

  4. wallace says:

    btw..I sincerly hope that someone commits an act of civil disobedience if not commits the fervent commitment to understanding the consequences of spitting in Rep. Peter Kings face. It needs to be done.
    quote”Today’s Senate NSA vote is a victory for America, for freedom over ignorance and defeat for ISIS, Edward Snowden & Rand Paul”unquote

    Fuck this dickhead motherfucker

  5. jerryy says:

    .
    “(I’ll do my own version of that too, shortly!)”
    .
    That will be interesting reading, at the moment it seems the Senator McConnell won his shell game (Senator Paul certainly aided that effort) of getting all they wanted right back into operation while jettisoning the parts that probably where not currently as productive — to stave off criticisms from the activists.

    • emptywheel says:

      Nah, McConnell lost badly and Paul had a big part of that. That’s another piece I’ll do.

      • orionATL says:

        well, e.w., you know details i never wiil, but if you stand way back from all those details and all the who won/lost, what has changed ??

        really, what significant spying capability has nsa/fbi lost ??

        there simply is nothing, repeat, nothing fbi/nsa wants that they will not just reach out and grab – with a cherry “fuck you” in salutation.

        as long as we have a captive president – and jeb bush will be only slightly less captive than obama has been – there will be no legislative estoppel to anything fbi/nsa want.

        whatever mcconnell “lost” and paul “won” seems trivial to me.

        does anyone hear the spying clutch and their presidential and civilian supporters bitching and moaning about usa freedom, except about the fisa amicus, who will soon be neutered or killed ??

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