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
How would Dr. Martin Luther King, Jr., have reacted to recent revelations that the U.S. government is collecting and storing nearly every citizen's phone records and gathering their electronic data?
From 1958 until his 1968 assassination, the FBI conducted extensive surveillance on Dr. King, amassing over 17,000 pages of material on his day-to-day activities.
Today King's legacy as a civil rights leader is celebrated; there is even a federal holiday named after him. But during his lifetime, the government tracked his movements, tapped his phones, bugged his offices and hotel rooms, and planted informants to spy on him. In addition, the FBI anonymously sent him a letter threatening to destroy his credibility and suggesting that he commit suicide to avoid this.
King was also separately targeted by an NSA domestic spying program called "Minaret." With others, including Muhammad Ali, Dr. King wasÂ labeledÂ and watch-listed as a possible "domestic terrorist and foreign radical" suspect.
We know that Dr. King was aware of his constant surveillance and the threat that it posed to him, yet he continued to teach and promote the ideals of peaceful organizing and resistance, equality, fraternity, and freedom until his life was taken.
So how would he react to the recent disclosures that the NSA and FBI, along with the CIA, DEA, and even local law enforcement agencies like the NYPD are spying on U.S. citizens by collecting communication metadata and infiltrating public demonstrations, activist circles, and houses of worship?
Today Dr. King would be confronted with the Orwellian truth that we are all under surveillance, although some groups -- like American Muslims -- are under more scrutiny than others. However, whether you are white or black, Hispanic or Asian, Muslim or Christian, the government is spying on all groups as potential "domestic terrorist and foreign radicals."
Just as it was 50 years ago, the NSA and FBI have once again been caught abusing their surveillance powers, infringing on the liberties they are sworn to protect -- all in the name of national security.
These government spying programs constitute a clear violation the U.S. Constitution's Fourth Amendment ban on unreasonable searches and seizures, and chills First Amendment freedom of speech.
Dr. King supported the Constitution as a framework for all citizens to achieve equal rights, and I believe he would have vocally opposed such government intrusions and spying. While he may have remained publicly silent on the government's unlawful invasion of his personal life, it's hard to believe that he would have sat idly by and let every American experience similar attacks on personal liberties as he faced while leading the battle for civil rights and the nation's soul.
To honor Dr. King's legacy and the values on which our nation was founded, Americans should work together to challenge these expansive domestic spying programs that are robbing us of our civil liberties.
Some members of Congress and the Obama administration make the claim that these spying programs are lawful under the USA PATRIOT Act and Foreign Intelligence Surveillance Act. Dr. King would know better -- the Constitution is clear and these programs are illegal and need to be ended.
Robert McCaw is the government affairs manager at CAIR's national office in Washington, D.C.