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FBI fighting to keep power to spy on journalists, whistleblowers (with little oversight)

(AP Photo/Jim Cole)

(AP Photo/Jim Cole)

The government expects unquestioning acceptance by Americans for any effort it claims in the name of anti-terrorism.

Unfortunately, for each national security measure it takes, Americans discover that its practical uses were less innocent and crucial than they were told.

Secret investigations by the Justice Department, thanks to National Security Letters that lack judicial oversight, have been used to spy on journalists and monitor suspected government whistleblowers, according to Reason.

“The use of these letters expanded significantly after the Sept. 11 attack as a tool to try to track down information about terrorist plots,” Scott Shackford wrote, but they’re routinely used as a way for the government to prevent the public from hearing about possible violations of ethics and law.

The FBI wants to preserve a loophole that allows the broad use of NSLs, citing national security, though some members of Congress such as Sen. Ron Wyden (D-Ore.) are skeptical.

The NSLs make it more difficult for journalists to guarantee anonymity to government workers who suspect a government agency of violating the law or misleading the public.

To monitor someone, the FBI and the Justice Department usually need a judge to approve a search warrant or NSL. The judge has the responsibility to ensure that surveillance powers aren’t being abused and are used to uphold national security. However, as The Intercept found in the rules for NSLs, that isn’t always the case. The Justice Department can avoid judicial oversight and can impose little restraint on itself:

Generally speaking, there are a variety of FBI officials, including the agents in charge of field offices, who can sign off that an NSL is “relevant” to a national security investigation.

There is an extra step under the rules if the NSL targets a journalist in order “to identify confidential news media sources.” In that case, the general counsel and the executive assistant director must first consult with the assistant attorney general for the Justice Department’s National Security Division.

But if the NSL is trying to identify a leaker by targeting the records of the potential source, and not the journalist, the Justice Department doesn’t need to be involved.

The guidelines also specify that the extra oversight layers do not apply if the journalist is believed to be a spy or is part of a news organization “associated with a foreign intelligence service” or “otherwise acting on behalf of a foreign power.” Unless, again, the purpose is to identify a leak, in which case, the general counsel and executive assistant director must approve the request.

The FBI has issued about 13,000 NSLs, according to The Intercept.

The use of an NSL isn’t always illegitimate. Some government investigations need complete secrecy. However, given the common use of NSLs, and the deep lack of oversight, it’s a serious source of concern for journalists and the American public concerned with what, exactly, the American government does in the name of national security.

Expanding secrecy in the name of national security, and then using surveillance powers for questionable actions, hurts public trust in government. Only 19 percent of Americans “trust the government always/most of the time,” a Pew Research Center report found. In national security, though, 72 percent thought the government is “doing a good job.” To preserve that crucial trust in government institutions, proactively adding government oversight to protect against civil liberties violations could go a long way in repairing the damage done to public oversight under Presidents Bush and Obama.


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