According a U.S. Department of Justice (DOJ) report released today on the “FBI’s Use of Section 215 Orders for Business Records in 2006,” the United States Foreign Intelligence Surveillance Court (FISA Court) twice refused to authorize Section 215 requests by the FBI “based on concerns that the investigation was premised on protected First Amendment activity, and the FBI subsequently issued [National Security Letters] NSLs to obtain information” about American citizens built on the same premise rejected by the Court.
Under Section 215 of the U.S. Patriot Act, the FBI is authorized to apply to the FISA Court to review applications for warrants related to national security investigations.
Critics of the FISA Court have noted that the court effectively acts as a rubber stamp only rejecting .03 percent of all government surveillance requests, according to the Wall Street Journal.
In emails between the DOJ's Office of Intelligence Policy and Review (OIPR) and FBI’s National Security Law Branch, it is reported that the FISA Court decided that “the facts were too ‘thin’ and that this request implicated the targets First Amendment rights.”
The report cites a former counsel for intelligence policy who stated the OIPR should have subsequently examined the FBI’s underlying investigation after the FISA Court rejected the Section 215 request but that it was stretched too thin to “serve such an oversight role.”
An internal FBI audit in 2007 found that the “bureau potentially violated the law or agency rules more than 1,000 times while collecting data about domestic phone calls, e-mails and financial transactions in recent years,” according to The Washington Post.
It is deeply troublesome that the FBI would pursue national security investigations of American citizens “premised on protected First Amendment activity.” It is even more disconcerting that the FBI would use NSLs to obtain such information after the FISA Court refused to authorize a warrant, given the Court’s near 100 percent approval of such requests.
The DOJ’s OIPR lack of ability to examine the FBI’s underlying investigation at the time of the request due stretched resources also raises serious questions about how well the Office is able to protect the civil liberties of Americans.
The DOJ’s Office of the Inspector General report only labels such possible FBI violations of the law as “noteworthy” cases. The report does not provide any substantive recommendations to address these possible FBI abuses – unless such suggestions were made in one of the heavily redacted sections.
 U.S. Department of Justice Office of the Inspector General “A Review of the FBI’s Use of Section 215 Orders for Business Records in 2006 (U),” 2014. Report was requested by Congress via the USA PATRIOT Improvement and Reauthorization Act of 2005.
2 Wall Street Journal, “Secret Court's Oversight Gets Scrutiny,” Evan Perez June 9, 2013. Website: http://www.wsj.com/articles/SB10001424127887324904004578535670310514616
3 The Washington Post, “FBI Finds It Frequently Overstepped in Collecting Data,” John Solomon, June 14, 2007. Website: http://www.washingtonpost.com/wp-dyn/content/article/2007/06/13/AR2007061302453.html
It's generally true that most lawmakers are lawyers, or at least are familiar with the law. It appears, however, that that may not be the case in North Carolina, where at least 11 Republicans sponsored a clearly unconstitutional bill that would allow North Carolina to declare Christianity its state religion by arguing that the First Amendment doesn't apply to states.
One of the basics of constitutional law is that the Fourteenth Amendment (the one extending citizenship to former slaves) makes it clear that states are required to follow the U.S. Constitution, at least the provisions of the Bill of Rights.
The relevant section is called the Equal Protection Clause, and it reads:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The purpose at the time was primarily to overturn Jim Crow laws, such as the barring of blacks from juries in West Virginia. But it has since been used much more broadly, to protect the infringement of citizen's fundamental rights as contained in the Bill or Rights.
Of course, the First Amendment of the Bill of Rights guarantees freedom of speech and religion. There is no more fundamental right in American tradition than the freedom to worship (it was numbered first for a reason). The First Amendment states, in its entirety:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Key in it is the Establishment Clause, which prevents the government from establishing a state religion.
Again, the Fourteenth Amendment means that states, and their divisions, need to respect all fundamental liberties of their citizens. But this point is apparently lost on some in North Carolina where the resolution with 11 Republican sponsors reads:
SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.
SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools or any political subdivisions of the State from making laws respecting an establishment of religion.
The reason for this clearly unconstitutional proposal is to establish Christianity as the official religion of North Carolina and ensure that all prayers offered at the beginning of meetings can be Christian ones. The ACLU recently filed a lawsuit charging the Rowan County Board of Commissioners with breaching the Establishment Clause by having 97% Christian prayers at their meetings, and some in the state capitol are trying to run around this.
Hopefully those with a basic understanding of the US Constitution kill the resolution in committee, where it currently is, but if not it certainly can't be upheld by any federal court. A better proposal might be to require some basic civics classes for the Republican cosponsors. I'm sure CAIR or the ACLU would be happy to oblige.
Todd Gallinger is the director of chapter development at CAIR's national headquarters in Washington, D.C.