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The American Prospect

Administration Wants To Expand Reach Of National Security Letters

Adam Serwer

Civil libertarians have been trying to add more restrictions to the FBI's National Security Letters since their use exploded after the attacks of September 11th. NSLs, which allow the government to obtain private records from commercial and financial institutions without a warrant as long as they deem them "relevant" to an investigation -- with a gag order that stops companies from mentioning they've received them for good measure. Internal Justice Department reports have found NSLs are subject to widespread abuse. Last year, Sen. Russ Feingold along with some Democrats in the House tried to rein in NSLs by requiring that the FBI show the information is somehow relevant to terrorism or espionage, but they were stymied by members of their own party.

Today, The Washington Post reports that the Obama administration wants Congress to expand the type of data that can be gained through the use of National Security Letters:

The administration wants to add just four words -- "electronic communication transactional records" -- to a list of items that the law says the FBI may demand without a judge's approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user's browser history. It does not include, the lawyers hasten to point out, the "content" of e-mail or other Internet communication.

This is on the heels not only of the administration blocking reasonable restrictions on what has objectively been widespread misuse of NSLs, but of the FBI recently beginning to investigate whether or not "hundreds" of agents cheated on the exam meant to "ensure that they could follow aggressive investigative guidelines without intruding on Americans' privacy rights." That's on top of threatening to veto the meager intelligence-oversight reforms being proposed by Congress. As Gene Healy wrote yesterday, "Our interminable war on terror sometimes seems designed to justify every bad thing libertarians have ever said about government." Having acted irresponsibly with the surveillance power it already has, and blocked reform that would have made the government more accountable, the Obama administration now wants even more power to violate the privacy rights of American citizens. When it comes to national security, there's nothing like failed government performance to justify giving the government more power.

How does the administration get away with this? The same way they get away with pretending to be immigration doves when they're immigration hawks, and restorers of the rule of law rather than upholders of the national-security legacy of the late Bush administration. They simply talk a really good game, and between a Democratic Party mostly unwilling to buck its president and a GOP worried about the New Black Panther Party and whether or not the president is a racist, there's no meaningful resistance to be found.

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Adam Serwer blogs about civil rights, human rights and criminal justice. An archive of his articles for The American Prospect can be found here.

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