DOJ Headed By William Barr Asked To Explain Warrantless Bulk Data Collection William Barr Authorized 27 Years Ago When He Was The Head Of The DOJ

Legal Issues

from the DOJ's-timeline-has-become-a-flat-circle dept

More than a quarter-century ago, then-Attorney General William Barr gave the DEA something it shouldn’t have had and something it certainly hadn’t earned. The War on Drugs was a forever war and it demanded an expansion of the government’s powers. AG Barr OK’ed it: the warrantless bulk collection of multiple third party records, including call records, banking information, and the tracking of purchases.

Twenty-seven years after the fact, the DOJ’s Inspector General released its review of these programs, finding they had been crafted and deployed with no underlying legal basis. Some of these programs are defunct. Others have been codified into quasi-legitimacy by War on Terror-related government power expansions.

Twenty-seven years later, William Barr is Attorney General once again. And he’s likely just as interested in expanding law enforcement surveillance programs (without worrying too much about how legal they are) as he was three decades ago. He has shown no love for the public nor their rights since he took office, making it crystal clear that neither the administration he works for nor the law enforcement agencies he oversees should be questioned by other branches of the government, much less the public they’re supposed to be serving.

More questions are on the way, though. Senator Ron Wyden and Senator Pat Leahy want some answers from the DOJ about Barr’s past legal misadventures and what he’s doing now to address the findings of the long-delayed Inspector General’s report.

“Mr. Barr’s authorization of this sweeping surveillance program without requiring, at minimum, an appropriate legal analysis, was not consistent with his oath to support and defend the Constitution and it likely amounted to professional misconduct,” Wyden and Leahy wrote. “Attorney General Barr knew, or should have known, that neither statutory law nor federal case law permitted the DEA to sweep up, in bulk, billions of records of Americans’ telephone communications. We write to ask that you open an investigation into the authorization of this recently-disclosed illegal, bulk surveillance program that collected billions of records of Americans’ telephone calls without conducting any legal analysis of the program.”

The program Barr authorized ran for more than 20 years, finally being mothballed in 2013 following the Snowden leak exposing the NSA’s bulk phone records collection. The collection continued past that point, but was modified significantly, at least according to the DOJ’s public statements. The Senators want specifics. Their letter [PDF] asks for details about the long-running program Barr summoned into existence for President Bush the First.

1. During the two decades in which the DEA operated Program A, did any telecommunications companies ever raise questions about its legality, refuse to comply with a DEA subpoena for bulk data, or seek judicial review?

2. According to the OIG report, the DEA transitioned in 2013 from collecting bulk records under Program A to requesting records about specific targets. What legal analysis, if any, did DOJ and DEA engage in before beginning this reconfigured surveillance program? If no legal analysis was conducted, why not?

3. Under target-specific data collection operations, DEA officials must now provide “reasonable articulable suspicion” that the target is involved in drug activity.

a. What safeguards are in place to ensure the target is actually involved in drug activity?

b. What constitutes involvement in drug activity?

c. If someone is targeted under this program, and it is later revealed there was no nexus to drug activity, what happens to the data that the DEA collected, and is the person ever notified that data about them was obtained by the government?

d. What actions will be taken to ensure this program will not be abused in a similar manner to the programs discussed in the OIG report?

The Senators also want to know what the DOJ is doing to prevent this sort of thing from happening again. They’re also asking the DOJ if it’s following through with the recommended overhaul of its parallel construction practices as well as the internal legal process authorizing new bulk records collection programs.

Considering Barr’s running the place again, it seems unlikely answers are forthcoming, and — if and when answers do eventually arrive — they will be forthcoming. The new AG has made it clear the administration doesn’t need to answer to anyone, not even other branches of the government that are supposed to ensure one branch doesn’t grab too much power for itself.

The DOJ doesn’t like talking about its screw-ups or its secrets or its ridiculous belief that Drug Wars are good and easy to win. AG Barr’s position at the head of the department only buttresses these positions. I wish Wyden and Leahy all the luck in the world, but something tells me the clock will run out on this administration before the DOJ’s willing to talk about a twenty-seven-year-old, potentially illegal surveillance program.

Filed Under: 4th amendment, bulk data collection, dea, doj, surveillance, warrantless surveillance, william barr