White House backs FBI use of records
By Marisa Taylor
WASHINGTON — Although the FBI has acknowledged it improperly obtained thousands of Americans' phone records for years, President Barack Obama's administration continues to assert that the bureau can obtain them without any formal legal process or court oversight.
The FBI revealed this stance in a newly released report, troubling critics who'd hoped the bureau had been chastened enough by its own abuses to drop such a position.
In further support of the legal authority, however, the Justice Department's Office of Legal Counsel backed the FBI in a written opinion issued this month.
The opinion by the OLC — the section that wrote the memos that justified enhanced interrogation techniques during the last administration — appears to be yet another sign that Obama's administration can be just as assertive as Bush's in claiming sweeping and controversial anti-terrorism powers.
The Justice Department's watchdog, the inspector general, said the OLC opinion has "significant policy implications that need to be considered by the FBI, the Department, and the Congress."
"The FBI says that this kind of activity is in the past," said Michael German, a former FBI agent who's now the American Civil Liberties Union's policy counsel. "But if they're saying that they have a continuing legal authority that means it's not in the past."
In another similarity to Bush-era legal decisions to keep legal theories under wraps, Obama's Justice Department refused to release to McClatchy Newspapers the OLC opinion, despite the administration's vow to be more open than its predecessors.
The little-noticed revelation about the OLC opinion and the FBI's legal position appears in a heavily redacted section of an inspector general's report released Wednesday.
In the report, Inspector General Glenn Fine concluded the FBI committed egregious violations of the law when it obtained thousands of telephone records without court oversight or through any formal legal process.
The report described a "casual" environment in which FBI agents and employees of telecom companies treated Americans' telephone records so cavalierly that one senior FBI counterterrorism official said getting access to them was as easy as "having an ATM in your living room."
Yet it also stated that "the OLC agreed with the FBI that under certain circumstances (word or words redacted) allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency."
FBI and Justice Department officials declined to comment.
In a letter sent Friday, Sens. Russ Feingold, D-Wis., Richard Durbin, D-Ill., and Ron Wyden, D-Ore., demanded that Attorney General Eric Holder release a copy of the memo.