WASHINGTON — The Justice Department should publicly release its legal opinion that allows the FBI to obtain telephone records of international calls made from the U.S. without any formal legal process, a watchdog group asserts.
The nonprofit Electronic Frontier Foundation alleges in a lawsuit filed Thursday that the Justice Department's Office of Legal Counsel violated federal open-records laws by refusing to release the memo.
The suit was prompted in part by McClatchy's reporting that highlighted the existence of the memo and the department's refusal to release it. Earlier this year, McClatchy also requested a copy and was turned down.
The decision not to release the memo is noteworthy because the Obama administration — in particular the Office of Legal Counsel — has sought to portray itself as more open than the Bush administration was. By turning down the foundation's request for a copy, the department is ensuring that its legal arguments in support of the FBI's controversial and discredited efforts to obtain telephone records will be kept secret.
"The public has a right to know the government's reasons for engaging in a questionable, invasive practice," said David Sobel, senior counsel for the foundation.
The Justice Department has said it can't release the document for national security reasons, but it hasn't elaborated on that assertion. At the same time, the department and the FBI have refused to comment on the legal position itself.
What little is known about the stance has prompted experts to worry that it could lead to a repeat of FBI abuses that were supposed to have been stopped in 2006.
For years after the Sept. 11 attacks, the FBI sought and obtained thousands of telephone records for international calls in an attempt to thwart potential terrorists.
The bureau devised an informal system of requesting the records from three telecommunications firms to create what one agent called a "phone database on steroids" that included names, addresses, length of service and billing information.
The department's inspector general later concluded that the FBI and employees of the telecom companies treated Americans' telephone records in such an informal and cavalier way that in some cases the bureau abused its authority.
In a report made public last year, the inspector general said "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."
Prompted by the reference to the memo, McClatchy asked for a copy under open records laws. While turning down McClatchy, the department disclosed more detail about its legal position, specifying a section of a 1978 federal wiretapping law that the Justice Department believes gives the FBI the authority. That section of the law appears to be what was redacted from the inspector general's report and reveals the types of records the FBI would be seeking, experts said. No other details, however, are publicly known.
THE ELECTRONIC FRONTIER FOUNDATION'S COMPLAINT
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