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
by Robert McCaw
"Our country's Founders understood the best way to honor the place of faith in the lives of all Americans was to fight for justice and equality as well as liberty and freedom."
- Deputy Secretary of Defense Bob Work, 2014 Pentagon Iftar Dinner
On Veteran's Day, American Muslims, like other communities, thank those who have served in our nation's armed forces.
The nation's military draws its service members from all communities including the American Muslim community, which has contributed over 6,000 soldiers who have served honorably in overseas war deployments since 2001.
Out of those volunteer soldiers, at least 14 American Muslims have made the ultimate sacrifice having been killed in action.
In March, CAIR staff and board members who are U.S. veterans marked Memorial Day with the release of a video featuring Muslim veterans honoring the sacrifices Muslim soldiers have made for their country.
Today's celebration finds its origins in Armistice Day, a day of national reflection and gratitude for the hard fought victory that marked the end of World War I. As history marched forward each generation of Americans has responded with courage and bravery to the call of service and we as a nation have established Veterans Day to demonstrate our deep appreciation.
There is not a single faith or community that is not represented by our nation's soldiers in uniform. When Deputy Defense Secretary Gordon England helped dedicate the Marine Corps' first Islamic prayer center in 2006, he recognized that we are "a nation of people from all races and creeds who believe in liberty and freedom."
As a nation we are able to salute the service of our veterans while still publicly opposing the immoral political motivations that some administrations have used to justify sending our troops into harm's way. We are able to separate the service of volunteer soldiers from the decisions of policy makers and elected officials.
As a nation, we should better honor our veterans every day by empowering them through streamlining veterans' health care and benefits systems, securing more scholarships and educational grants for veterans, promoting veterans hiring programs, and ending the serious problem of veteran homelessness.
U.S. Muslims, like all other Americans today, will thank those who have served on our behalf and remember in our thoughts and prayers the ones who did not come home.
In response to a court order, the Obama administration has released the Justice Department's 41-page legal memo on U.S. targeted killing operations. The memo was used in the decision-making process that led to the 2011 extrajudicial killing of U.S. citizen Anwar al-Awlaki and, two weeks later, his 16-year-old son, Abdurrahman, who was also a U.S. citizen. The memo was released in response to a court order in consolidated FOIA (Freedom of Information Act) lawsuits filed by the ACLU and The New York Times.
For the past several years, CAIR has joined the ACLU, Amnesty International, Human Rights Watch, and other civil liberties and human rights organizations in calling on the president and submitting testimony to Congress seeking the release of all U.S. government targeted killing memos related to counterterrorism and drone warfare programs.
It's critical for Americans to know how our government determines its own authority to assassinate U.S. citizens suspected of supporting or engaging in acts of terrorism. And the U.S. government's targeted killing program has not only taken the lives of several American citizens but has killed thousands of other people, including countless civilians who are all too often referred to as necessary collateral damage.
As a nation we must ensure that the rule of law and respect for human life is preserved -- whether the intended target is a U.S. citizen or a foreign national -- when targeting groups like al-Qaeda. If we don't, such groups will continue to capitalize on America's targeted killing program, drawing support from popular resentment built around unintended but all too frequent civilian deaths.
CAIR looks forward to reviewing the memo, and continues to urge our government to commit to further disclosure and transparency of American counterterrorism and drone warfare programs.
Robert McCaw is the government affairs department manager at CAIR's national office in Washington, D.C.
On July 4, CAIR will mark Independence Day by joining fellow Americans at the "Restore the Fourth" rally in Washington, D.C. in support of the U.S. Constitution's Fourth Amendment right to be free from unreasonable searches.
This rally comes at a time when the country's national security and law enforcement agencies are accused of engaging in several domestic spying programs that allowed them to obtain the daily phone, email and online records of American citizens and foreigners alike, without any probable cause or suspicion of wrongdoing.
The Fourth of July honors that triumphant day in 1776 when the Continental Congress adopted the Declaration of Independence, asserting that America's thirteen colonies were free and independent from the tyrannical British rule. That our nation would establish a new Government under the principles that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
Our nation's founders rejected the British Crown's "absolute despotism" and its "long train of abuses and usurpations" of Americans rights and state laws. Among the colonies' grievances against King George III were that he "obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers," "depriving us in many cases, of the benefits of trial by jury" and abolished "our most valuable laws ... altering fundamentally the forms of our governments."
Prior to the Deceleration of Independence, in 1761, Boston lawyer James Otis spoke against overly-broad warrants issued by the British government. These Writs of Assistance allowed the crown's agents to search any house or ship they wished, without any specific reason. John Adams -- signer of the Declaration of Independence and our nation's second president -- said of Otis's speech, "Then and there, the child Independence was born."
Twelve years after the signing of the Declaration of Independence the U.S. Constitution was formally adopted, shortly followed by the ratification of the first ten amendments to that Constitution, the Bill of Rights. Those fundamental principles of liberty guided the American Revolution were enshrined in the Bill of Rights, preserving the personal freedoms of all American against any future tyrannies, abuses and usurpations of law.
Today, recent leaks have revealed that the National Security Agency, in cooperation with the FBI, is covertly carrying out at least two nationwide surveillance programs that collect information on the private calls and online activities of U.S. citizens and non-permanent residents alike. These programs are being carried out in secret partnership with some of the nation's top telecommunications and internet and technology companies.
That is why organizations like CAIR are celebrating Independence Day this year by rallying in support of the Bill of Rights and the Fourth Amendment. We rally under disheartening reports that our nation's national security or law enforcement agencies are engaged in domestic and international spying programs that undermine the core constitutional protections of privacy and prohibition against unreasonable search and seizure.
Through secret Foreign Intelligence Surveillance Court orders, the federal government is obtaining -- without any probable cause or suspicion of wrongdoing -- data from millions of American Verizon Business Network Services customers and user account information from Google, Yahoo!, Facebook, Microsoft (Hotmail, etc.), Apple, PalTalk, YouTube, Skype and AOL. It is strongly suspected that the federal government is also collecting call data from all other major phone carriers.
While some in Congress and the White House say that these spying programs are lawful under the Patriot Act and Foreign Intelligence Surveillance Act, CAIR and the civil rights community believe that the Fourth Amendment of the U.S. Constitution is clear: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause. ..."
Again, CAIR urges the president and Congress to establish clear criteria for how such communication records are collected and for how long they can be stored. Congress should amend of section 215 of the Patriot Act to enact better safeguards that protect Americans from such abuses, and commit to full public disclosure and transparency by declassifying aspects of the spying programs.
Legislative initiatives like these are necessary to protect the fourth amendment rights of all Americans, including members of the American Muslim community, which has been subject to unwarranted and discriminatory acts of surveillance for more than a decade. Furthermore, without additional information about the criteria that determine "foreignness," CAIR remains concerned that these programs could discriminate on the basis of religion and national origin.
CAIR is proud to be a part of that long tradition established by our nation's founding fathers in asserting the rights and liberties of our fellow citizens against the tyranny of government abuses and usurpations of law.
In celebration of the Fourth of July, we encourage you to read copies of the U.S. Declaration of Independence, the U.S. Constitution and Bill of Rights, and take action by contacting the president and Congress to demand an immediate end to these abusive and unconstitutional government spying programs.
Robert McCaw is the government affairs manager at CAIR's national headquarters on Capitol Hill.