FLE

Amid Concerns, FBI Lapses Went On

FBI counterterrorism officials continued to use flawed procedures to obtain thousands of U.S. telephone records during a two-year period when bureau lawyers and managers were expressing escalating concerns about the practice, according to senior FBI and Justice Department officials and documents. FBI lawyers raised the concerns beginning in late October 2004 but did not closely scrutinize the practice until last year, FBI officials acknowledged. They also did not understand the scope of the problem until the Justice Department launched an investigation, FBI officials said. Under pressure to provide a stronger legal footing, counterterrorism agents last year wrote new letters to phone companies demanding the information the bureau already possessed. At least one senior FBI headquarters official -- whom the bureau declined to name -- signed these "national security letters" without including the required proof that the letters were linked to FBI counterterrorism or espionage investigations, an FBI official said. The flawed procedures involved the use of emergency demands for records, called "exigent circumstance" letters, which contained false or undocumented claims. They also included national security letters that were issued without FBI rules being followed. Both types of request were served on three phone companies....


Treasury casts a wide net under Patriot Act

Under a little-noticed provision in the USA Patriot Act, the Treasury Department has ordered severe restrictions against foreign banks or countries for reasons beyond the stated purpose of the law and without producing evidence. Section 311 of the 2001 Patriot Act was drafted to halt terrorist financing and money laundering, but the Bush administration has used it against an alleged source of terrorist financing - a bank in Syria - only once. The Treasury has invoked it more often to punish alleged human-rights abuses or offshore banking havens. Although Congress has yet to examine the Treasury's use of Section 311, the provision is likely to add to the controversy over other sweeping powers the executive branch of government acquired under the Patriot Act. According to a recent audit, the FBI used the act illegally to obtain personal information about U.S. citizens, and the administration has agreed to abandon a provision that it used to replace eight U.S. attorneys for what Democrats charge were partisan political reasons. Supporters view Section 311 as a diplomatic sledgehammer that gets results. Critics - many of whom refused to speak on the record, saying they feared retribution - complain that the provision denies suspects due process and presumes that the accused are guilty rather than innocent. Through Section 311, the Treasury doesn't have to tell accused banks or countries what threat they allegedly pose to the U.S. financial system, and the Treasury has the power to act as both prosecutor and judge....


Aborted DOJ Probe Probably Would Have Targeted Gonzales

Shortly before Attorney General Alberto Gonzales advised President Bush last year on whether to shut down a Justice Department inquiry regarding the administration's warrantless domestic eavesdropping program, Gonzales learned that his own conduct would likely be a focus of the investigation, according to government records and interviews. Bush personally intervened to sideline the Justice Department probe in April 2006 by taking the unusual step of denying investigators the security clearances necessary for their work. It is unclear whether the president knew at the time of his decision that the Justice inquiry -- to be conducted by the department's internal ethics watchdog, the Office of Professional Responsibility -- would almost certainly examine the conduct of his attorney general. Sources familiar with the halted inquiry said that if the probe had been allowed to continue, it would have examined Gonzales's role in authorizing the eavesdropping program while he was White House counsel, as well as his subsequent oversight of the program as attorney general. Both the White House and Gonzales declined comment on two issues -- whether Gonzales informed Bush that his own conduct was about to be scrutinized, and whether he urged the president to close down the investigation, which had been requested by Democratic members of Congress. Current and former Justice Department officials, as well as experts in legal ethics, question the propriety of Gonzales's continuing to advise Bush about the investigation after learning that it might examine his own actions. The attorney general, they say, was remiss if he did not disclose that information to the president. But if Gonzales did inform Bush about the possibility and the president responded by stymieing the probe, that would raise even more-serious questions as to whether Bush acted to protect Gonzales, they said....


Major Second Amendment Decision

The United States Court of Appeals for the District of Columbia Circuit (commonly referred to as the "D.C. Circuit") today (Friday, March 9) issued a very important Second Amendment decision broadly upholding the right of individuals to possess and use firearms, in particular handguns, for self-defense in the home. The case involved a challenge, brought by six residents of the District of Columbia, to the District's handgun laws. These laws largely ban the private ownership of handguns in D.C. Even where such ownership is permitted (e.g., by retired D.C. police officers), the laws impose onerous restrictions on the use of such handguns, including a requirement that all firearms be kept unloaded and unassembled or bound by a trigger lock or similar device. (See Decision at 4.) The plaintiffs wanted to possess "functional firearms" in their homes for purposes of self-defense. The D.C. guns laws, obviously, frustrated these perfectly reasonable aims. The case was heard by a three-judge panel, composed of Laurence Silberman (appointed by President Reagan in 1985), Thomas Griffith (appointed by President George W. Bush in 2005), and Karen LeCraft Henderson (appointed by President George H.W. Bush in 1990). Judge Silberman and Judge Griffith concluded (in an opinion written by Judge Silberman, in classic originalist style) that the Second Amendment protects an individual right to "keep and bear arms" (as opposed to merely a collective right related to the maintenance of state militias); that handguns are among the types of "arms" protected by the Second Amendment; and that the District's handgun laws violate the Second Amendment insofar as they prohibit an individual from owning and using a handgun for self-defense in the home. Judge Henderson dissented from the decision. This is only the second time a federal appellate court has decided that the Second Amendment protects an individual right to possess firearms. The Fifth Circuit also has reached this result. In contrast, the First, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits all have concluded that the Second Amendment only protects a collective right. (See Decision at 16.) The Second Circuit (which covers New York, Connecticut, and Vermont) still has not addressed the issue....