FBI and DOJ refuse to release internal memo detailing domestic surveillance

McClatchy reported late last week that a Justice Department document asserts “the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight.”

In January 2010, McClatchy Newspapers petitioned the Department of Justice’s Office of Legal Counsel (OLC) for a copy of an internal memo that evidently detailed the DOJ’s legal defense for obtaining the telephone records of American citizens and residents. McClatchy learned of the memo from a heavily redacted inspector general report on abuses of power that the FBI committed while seeking telephone records.

Now, a year on, the FBI and DOJ have declined to release the memo, even though it is a document that should be available to the public under the Freedom of Information Act. However, McClatchy reports the OLC’s cover letter to McClatchy newspapers does cite a section in a 1978 wiretapping law that the office contends gives the government legal authority to collect telephone records from telecommunications firms.

While McClatchy does not get more specific, that can only be the Foreign Intelligence Surveillance Act of 1978, which outlines procedures for gathering intelligence on communications between foreign governments and their contacts within the U.S. In 2001, the PATRIOT Act expanded the law to apply to those with connections not just to other governments, but to any foreign group seen as hostile toward the U.S., and a further revision to the law in 2008 (PDF) expanded the government’s legal authority to performance surveillance without a warrant. Although the original law actually prohibits telecom companies from handing over phone records, the 2008 revisions also give those very companies immunity from lawsuits should they do so — meaning that if the FBI leans on, say, AT&T to disclose customer records, there is no incentive for it not to do so.

Kevin Bankston, a staff attorney and expert on electronic surveillance and national security laws for the Electronic Frontier Foundation, tells McClatchy the OLC’s defense could easily be expanded to include emails as well, as long as they are sent to international addresses. Meanwhile, the Department of Justice still refuses to release the original memo that McClatchy requested over a year ago.