Assistant Attorney General David Kris made the case for the National Security Division’s robust powers on Thursday.
At a conference sponsored by the liberal American Constitution Society, Kris told a few jokes. But he also gave a serious argument: The Department of Justice works better when it has more power.
As the audience hunched over box lunches, Kris defended the three-year-old division, which was created by a Patriot Act revision in 2006. He praised the post 9/11 tearing down of what had become known as the “wall” between intelligence gathering under the Foreign Intelligence Surveillance Act and criminal prosecution.
The FISA wall “made it harder to identify law enforcement methods,” Kris said. “If law enforcement is off the table and you’re looking elsewhere, you’re going to have to resort to solutions that may not be as appealing from a civil liberties standpoint.”
Before 9/11, the FBI and CIA were often working at cross purposes, Kris said. ”You’d have these two separate, but equal squads not coordinated. It made it difficult for the government to connect the dots.”
Kris said he’s worked hard to break down barriers among intelligence and law enforcement agencies. After he was sworn in as head of the division in April, Kris said his mantra, repeated in staff meetings, was “synergy!”
Kris said the division provides oversight that should assuage civil liberties concerns. ”It’s not really a very serious rallying cry, but it does make sense: bring in the lawyers,” Kris said.
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The Obama administration has blessed three controversial provisions of the Patriot Act that expand the government’s reach in counter-terrorism investigations.
In a Sept. 14 letter to lawmakers, Assistant Attorney General Ron Weich said the Justice Department supports the use of roving wiretaps, the authority to access business records and the ability to track so-called “lone-wolf” terrorists, or those without visible ties to a foreign terrorist organization. The provisions sunset at the end of the year.
The Justice Department’s position was expected. During his confirmation hearings, Attorney General Eric Holder told members Congress he would review the provisions but said he would likely endorse their re-authorization.
“The tools that we have been given by Congress in FISA are important ones, so I would look at all three and make the determination of whether I would be able to support them,” Holder told member of the Senate Judiciary Committee. “I expect that I will.”
Weich said the administration is willing to consider changes that would increase privacy protections, as long as they preserve the effectiveness of the tools. Still, his letter embittered civil libertarians who have long opposed the measures.
“We are very encouraged to learn that the Obama administration has stated a willingness to discuss reforming the deeply flawed provisions in the Patriot Act, though we are disappointed at its support for the reauthorization of the three expiring provisions,” Michael Macleod-Ball, acting director of the ACLU’s Washington Legislative Office, said in a statement.
A refresher on the three provisions:
- Lone wolf: Allows government to track a target without any discernible affiliation to a foreign power, such as an international terrorist group. The provision only applies only to non-U.S. persons. It has never been used in a FISA application.
- Business records: Allows investigators to compel third parties, including financial services and travel and telephone companies, to provide them access to a suspect’s records without the suspect’s knowledge. From 2004 to 2007, the FISA court issued about 220 orders to produce business records.
- Roving wiretaps: Allows the government to monitor phone lines or Internet accounts that a terrorism suspect may be using, whether or not others who are not suspects also regularly use them. The government must provide the FISA court with specific information showing the suspect is purposely switching means of communication to evade detection. The government has applied for roving wiretaps an average of 22 times a year since 2001.
The House and Senate Judiciary committees are scheduled to hold hearings on the provisions next week. Sen. Patrick Leahy (D-Vt.), the Senate Judiciary chairman, said in a statement today he was “pleased that the Justice Department has signaled its willingness to work with Congress” on the issue.
This post has been updated.
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Only three Justice Department lawyers, including then-Deputy Attorney General John Yoo, were privy to the details of the Bush administration’s warantless eavesdropping program, according to a report released today by inspectors general from various intelligence and law enforcement agencies. Click here for The Washington Post story.
The watchdogs — from the CIA, the Defense Department, the Justice Department, the Office of the Director for National Intelligence, and the National Security Agency — could not determine how Yoo “came to deal directly with the White House on legal issues related to the TSP.”
Only Yoo, then-Attorney General John Ashcroft and intelligence policy lawyer James Baker were aware of the program initially. The watchdogs called the arrangement ”extraordinary and inappropriate” and concluded that the secrecy hindered the Justice Department’s ability to render legal advice.
From the WaPo:
One former department lawyer, Jay S. Bybee, told investigators that he was Yoo’s superior in the Office of Legal Counsel but was never read into the program and “could shed no further light” on how Yoo became the point man on memos that confirmed its legality. By following this route, the memos avoided a rigorous peer review process.
Yoo prepared hypothetical documents in in the fall of 2001 before writing a formal legal memo in November. By then, Bush had already authorized the initiative.
In that memo, Yoo concluded that the FISA law could not “restrict the president’s ability to engage in warrantless searches that protect the national security” and that “unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not- then the statute must be construed to avoid such a reading,” according to the report.
Once higher-level DOJ officials read his analysis in late 2003 and 2004, they questioned the program’s legality. The report is scant on details of the program, but the watchdogs said Yoo failed to “accurately describe the scope” of the other activities — the ones not disclosed by The New York Times in 2005 — which created “a serious impediment to recertification of the program.”
After Yoo left the department, OLC lawyers Patrick Philbin and Jack Goldsmith were briefed on the program and began meeting with Alberto Gonzales, then White House Counsel, and Vice President Dick Cheney’s chief of staff, David Addington. The White House lawyers said they would terminate the program if became a serious problem, but they continued to lobby the Justice Department to support it while the legal problems were sorted out.
On March 9, 2004, intelligence officials and Cheney met to discuss the issue without inviting Justice Department leaders. Cheney suggested that the president “may have to reauthorize without [the] blessing of DOJ,” according to previously unreported notes taken by Mueller described in today’s report. Mueller told the investigators he would have a problem with that approach.
After the now-infamous hospital rush, in which Gonzales and Andy Card tried to prevail on an ailing Ashcroft to reauthorize the program, Deputy Attorney General James Comey threatened to resign, and with him FBI Director Robert Mueller III, among other Justice officials.