McClatchy Newspapers made a request to the Justice Department recently asking for a copy of a secret memo. In response to that request, the Justice Department (possibly inadvertently) revealed that
the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight...
The problem is, according to some critics,
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.
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.
This comes from an interpretation of a section of the 1978 Federal Wiretapping Law that the Justice Department felt gave the FBI this authority.
"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."
That interpretation could be stretched to apply to e-mails as well, he said.
What's even more troubling is,
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.
In light of this, let's not forget President Obama's pledge on transparency:
Transparency and the rule of law will be the touchstones of this presidency.