Overview:
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Created by a reauthorization of the PATRIOT Act in 2006, the National Security Division (NSD) consolidates the primary national security functions of the Department of Justice: Counterterrorism and Counterespionage, the Office of Intelligence Policy and Review, and the new Law and Policy Office. The establishment of the NSD fulfils a recommendation from the 2005 Report of the WMD Commission (Commission on the Intelligence Capabilities of the U.S. Regarding Weapons of Mass Destruction). However, it immediately became embroiled in controversy, raising serious questions about the erosion of traditional civil liberties.
History:
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The NSD was created in 2006 in response to the 2005 USA PATRIOT Improvement and Reauthorization Act. The Division was intended to consolidate counterterrorism and counterespionage sections of the Justice Department’s Criminal Division, with experts from the Office of Intelligence Policy and Review (OIPR) who specialize in the Foreign Intelligence Surveillance Act (FISA) working collaboratively under the direction of a new Assistant Attorney General.
Patriot Act and Reauthorization
The PATRIOT Act Reauthorization also extended and/or made permanent most of the temporary terms of the USA PATRIOT Act of 2001. Among the primary (stated) purposes of The PATRIOT Act and its Reauthorization is the facilitation of information sharing between law enforcement and intelligence communities, and between intelligence attorneys and intelligence community.
The projected result is a streamlining and strengthening of domestic antiterrorism operations—with a secondary effect, many argue, being the erosion of civil liberties. It allows the application of investigative and surveillance standards and procedures (like wiretapping and financial tracking) used by law enforcement in criminal cases to be applied in the pursuit of prospective terrorists—but raises questions about probable cause, and fails to answer many more in the tension between national security and civil rights. It expands the legal definition of—and thereby, the powers of law enforcement to regulate — terrorism to include “domestic terrorism.” It also enhances the Secretary of the Treasury’s authority to regulate financial transactions, including those involving foreign individuals and entities, as well as the powers of law enforcement and immigration in detaining and deporting immigrants suspected of terrorist activities.
Justice Department to get a national security chief (by Brian Friel, National Journal)
Transcript of Press Briefing for Efforts to Stand up the New National Security Division of the Department of Justice (by Lynn Sweet, Chicago Sun-Times blog)
Expansion of Surveillance Powers / NSL
Prior to the Patriot Act, there were four statutory provisions granting authority to government agencies responsible for certain intelligence investigations (primarily the FBI) to issue written commands comparable to administrative subpoenas, known as National Security Letters (NSL). NSL statutes were originally amendments to the Right to Financial Privacy and Electronic Communication Privacy Acts, granting the FBI access to communication and financial business records under limited circumstances (“customer and customer transaction information held by telephone carriers and banks pertaining to a foreign power or its agents relevant to a foreign counter-intelligence investigation.” CRS report). In the mid-1990s, Congress added two more NSL provisions—one permitting their use in connection with investigations of government employee leaks of classified information under the National Security Act, and the other granting FBI access to credit agency reports under the Fair Credit Reporting Act. The Patriot Act amended three of the four provisions, and added a fifth. Section 505 of the Patriot Act extended the authority to issue NSLs to FBI field heads (as opposed to the central authority); eliminated the requirement that records or information sought pertain to a foreign power or the agent of a foreign power, requiring instead that it be related to investigations of international terrorism or foreign spying; and it broadened the scope of sources to include businesses such as car dealers, jewelers, real estate agents, etc.
The extension of NSL powers was intended to provide the FBI with quick access and authority to investigate suspected terrorists through surveillance of proxy and third-party targets. And whereas National Security Letters (NSL) provisions were formerly restricted to suspected terrorists or spies, the PATRIOT Act significantly expanded the use of NSL powers to include, in ambiguous language, any information that is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.”
According to the CRS report, subsequent press accounts suggested that their use had become wide-spread. And in two lower federal courts, decisions were handed down that identified “uncertainties, practices and policies associated with the use of NSL authority contrary to the First Amendment right of freedom of speech, and thus brought into question the extent to which NSL authority could be used in the future.” One of the courts also found Patriot Act provisions to be in violation of Fourth-Amendment right to protections from unreasonable search and seizure. (See controversy and debate sections)
NSL Amendments (safeguards)
Some of the initial concerns raised over the Patriot Act’s extension of NSL powers were addressed in the Reauthorization:
“Both USA PATRIOT Act reauthorization statutes – P.L. 109-177(H.R. 3199) and P.L. 109-178 (S. 2271) – amend the NSL statutes. They provide for judicial enforcement of the letter requests and for judicial review of both the requests and accompanying nondisclosure requirements. They establish specific penalties for failure to comply or to observe the nondisclosure requirements. They make it clear that the nondisclosure requirements do not preclude a recipient from consulting an attorney. They provide a mechanism to lift the nondisclosure requirement. They expand Congressional oversight and call for an Inspector General’s audit of use of the authority.”
From: Techlaw Journal News, March 6-10, 2007
3/8. The Department of Justice (DOJ) published a notice in the Federal Register the announces, describes, recites, and sets the effective date (March 7, 2007) of, the DOJ's National Security Division's (NSD) rules regarding the organization, mission and functions of the NSD.
The NSD was created by Section 506 of the "USA PATRIOT Improvement and Reauthorization Act of 2005", which is now Public Law No. 109-277. The NSD has authority with respect to intelligence, counterintelligence, or national security matters.
The rules assign to the new NSD tasks related to the FISA, seizures, surveillance, CFIUS, and data collection and analysis. These rules do not reference CALEA related functions.
The new rules state that "The following functions are assigned to and shall be conducted" by the NSD: "Administer the Foreign Intelligence Surveillance Act."
It adds that the new NSD shall "Supervise the preparation of certifications and applications for orders under the Foreign Intelligence Surveillance Act of 1978, as amended, and the representation of the United States before the United States Foreign Intelligence Surveillance Court and the United States Foreign Intelligence Court of Review."
The rules also state that the NSD shall "review for concurrence the Department's use of criminal proceedings in connection with all matters relating to intelligence, counterintelligence, or counterterrorism", including "the filing of search and arrest warrants or applications for electronic surveillance pursuant".
The new rules also state that the new NSD shall "Represent the Department on the Committee on Foreign Investments in the United States", or CFIUS.
The rules also state that the NSD will "Participate in the systematic collection and analysis of data and information relating to the investigation and prosecution of terrorism cases".
The rules do not elaborate either on what data is to be systematically collected, how it is to be analyzed, or what uses and disseminations will be made of these analyses.
Neither this notice, nor the rules recited therein, reference the Communications Assistance for Law Enforcement Act or CALEA.
What it Does:
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Combining the counterterrorism, counterespionage and counterintelligence functions of the Justice Department, the National Security Division is led by the President-appointed Assistant Attorney General, and supported by a Deputy Assistant Attorney who oversees the counterterrorism and counterespionage sections, and two Deputy Assistant Attorneys General, who oversee the Law and Policy Office and FISA/ Oversight operations.
Counterterrorism Section - oversees “a coordinated national counterterrorism enforcement program, including the investigation and prosecution of international and domestic terrorism cases.” Section agents share information and “trouble-shoot” with prosecutors on terrorism matters and cases, including threat information, forming “communication network” between the Justice Department and U.S. Attorneys’ Offices for faster information sharing about terrorist threats and investigations. The network extends to international prosecutors, agents and investigating magistrates for a collaborative international antiterrorism effort. The Division also trains prosecutors and investigators.
Counterespionage Section - supervises the investigation and prosecution of cases involving “national security, foreign relations, and the export of military and strategic commodities and technology,” as well as coordinating Classified Information Procedures Act (CIPA) cases and enforcing the Foreign Agents Registration Act of 1938 (FARA).
Office of Intelligence Policy and Review - processes top-secret warrants under FISA. In their Intelligence Operations and Coordination capacities, the Division appears before the Foreign Intelligence Surveillance Court to obtain authorization for FISA surveillance activities—including electronic surveillance, physical searches, pen registers, and trap/trace devices. The Office can also obtain Attorney-General approval for conducting intelligence activities. The Division coordinates and oversees intelligence-related litigation matters, including FISA-related matters, and acts as the Department’s primary liaison to the Director of National Intelligence (DNI).
Law and Policy Office - oversees relevant policy matters, and provides legal assistance and advice to government agencies on national security law and policy. The Office advises the government on classification of national security information, performs “prepublication classification review” of materials, and generates guidelines on interpretation and application of terrorism policy and law. The Office represents the Department in interdepartmental collaborations relating to national security and advises the Attorney General, Congress, the Office of Management and Budget and the White House on national security law.
The Division’s oversight responsibilities include foreign intelligence, counterintelligence, and “other national security activities to ensure rigorous obedience to the Constitution of the United States and the vigorous protection of individual privacy and civil liberties.” NSD also monitors the intelligence/counterintelligence activities of the FBI “to ensure conformity with applicable laws and regulations, FISA Court orders, and Department procedures, including the Attorney General’s National Security Investigative Guidelines.”
Controversies:
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CIA Destruction of Interrogation Tapes
In December of 2007, the Justice Department and the CIA announced a preliminary investigation of the CIA’s destruction (in 2005) of videotapes depicting harsh treatment of two terrorism suspects in 2002 interrogation sessions. On December 8, NSD’s Kenneth Wainstein (see biography below) wrote to the CIA General Counsel to confirm the inquiry, asking the agency to preserve evidence and documents, and indicating that he would work with the CIA inspector general’s office to determine “whether a future investigation is warranted.”
“Based on our recent discussions, I understand that your office has already reviewed the circumstances surrounding the destruction of the videotapes, as well as the existence of any pending relevant investigations or other preservation obligations at the time the destruction occurred,” Wainstein wrote to the CIA.
(Source: Washington Post)
Later in the month, over the objections of the Justice Department, a federal judge said he would explore whether the U.S. had violated a court order to preserve evidence when the CIA destroyed the tapes. Prosecutors, seeking to show that the CIA’s actions amounted to obstruction of justice, were countered by the Justice Department, which countered that the videos weren’t covered by the order because at the time the defendants were being held in secret CIA prisons oversees, later transferred to Guantanamo.
Citing the initial inquiry by the NSD, the Justice Department claimed that an additional judicial inquiry would be “unnecessary and potentially disruptive,” and informed senior congressional leader that neither it nor the CIA would cooperate with congressional investigations into destruction of the tapes.
Shortly thereafter, the NSD recommended, and the Justice Department opened, a full criminal investigation of the matter. (See Below)
Mukasey: Criminal inquiry begins into CIA tapes: CIA said last month it had destroyed recordings of harsh interrogations (Associated Press)
Destruction of CIA tapes may have violated a court order: A federal judge will investigate whether the action defied his instructions to the federal government to preserve evidence in terrorism detentions (by Richard B. Schmitt, Los Angeles Times)
Justice, CIA Begin Videotape Inquiry: Spy Agency Asked to Preserve Evidence Related to Destroyed Interrogation Records (by Josh White, Washington Post)
Audit/ FBI Abuse of Patriot Act
On March 9, 2007, the Justice Department’s Inspector General reported that the FBI has been systematically underreporting the number of National Security Letter (NSL) requests to Congress—and that it has repeatedly violated federal law and agency policies in the collection of personal information. (Under current law, the FBI can issue NSL requests, without court approval, that require Internet Service Providers (ISPs), telecom companies, credit reporting agencies and financial institutions to disclose information about individuals’ internet, telephone and financial transactions). Witnesses criticized expansion of NSL powers under the Patriot Act and Reauthorization.
The IG report found that: 22 percent of the NSL requests they investigated were not reported by the FBI; a fifth of investigated NSL files contained unreported violations of federal law and policy; and 700 exigent letters—used to request information in emergency situations—were used illegally in non-emergency situations.
According to the 2007 CRS Report on the NSL investigations, in its initial report the IG found that the FBI “‘used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies,’ but that no criminal laws had been broken.”
CRS also reported that two federal courts have found the NSL statues “could not withstand constitutional scrutiny unless more explicit provisions were made for judicial review and permissible disclosure by recipients.” In Doe v. Ashcroft, the court found that the relevant PATRIOT Act provisions violate Fourth-Amendment protection against unreasonable search and seizure. Both Doe v. Ashcroft and Doe v. Gonzales found the NSL powers to the First Amendment.
The NSD is to work with the FBI on implementing the OIG’s suggested reforms.
Source: OMB Watch (April 14, 2007)
FBI Audit Exposes Widespread Abuse of Patriot Act Powers (ACLU website)
National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments (CRS Report to Congress)
Congress Urged to Reform USA PATRIOT Act (OMB Watch News Release)
Report: FBI abuse of investigative tool continued in 2006 (by Terry Frieden, CNN)
FBI Audit Prompts Calls for Reform: Some Lawmakers Suggest Limits On Patriot Act (by Dan Eggen and John Solomon, Washington Post)
Bush Pledges Swift Action on FBI Reform: Justice Dept. Audit Showed Agency Abused Intelligence-Gathering Powers (by Dan Eggen, John Solomon and Peter Baker, Washington Post)
Suggested Reforms:
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Reauthorization
When the Senate first voted on the PATRIOT Act in 2001, only one senator opposed it. In 2006 opposition increased ten-fold and a bipartisan group of 52 senators filibustered the Reauthorization. In the House, bipartisan majorities supported checks and balances to limit the reach of the Act.
Patriot Act II
The “Domestic Security Enhancement Act,” or “Patriot Act II,” was rejected by lawmakers.
‘Patriot Act II’ Irks Civil Libertarians (FOX News)
Arguments for Reform/Curbing Surveillance
Reform the Patriot Act to ensure civil liberties (by Anita Ramasastry, CNN)
Corporate Interests
Corporate Interests Seek Patriot Act Reform (by TChris, TalkLeft: The Politics of Crime)
From the Right: Reform Debate
Intelligence Reform: The Heritage Foundation's Research (by Heritage Foundation)
From the Left
In addition to the reforms introduced by the reauthorization, reform activists also suggest passage of the SAFE Act (see The SAFE Act of 2005), as well as various amendments sponsored by lawmakers, before the next debate (2009) over sunset on the provisions that were extended in 2006.
Another Cave-In on the Patriot Act (editorial, New York Times)
Debate:
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Activists on both sides of the left-right divide are generally suspicious of increased collaboration between the OIPR and prosecutors, because FISA surveillance offers less protection for suspects than those offered by criminal courts. Democrats tend to lean towards reform and determinate limits for the controversial sections, while conservatives favor putting off reform and extending the breadth and sunset of the same provisions.
Among the provisions that raise questions of constitutionality are the government’s ability to monitor individual’s web surfing records, use roving wiretaps to monitor phone calls made by individuals “proximate” to the primary target, access ISP records, request personal financial records from banks and other institutions. See Below:
Section 213
Allows law enforcement to conduct secret searches of individuals’ home or office, take pictures, and seize items for an indefinite period of time, without informing them that a warrant was issued. (ACLU)
Section 215
Give law enforcement broad access to all kinds of records (medical, financial, gun, library, sales, education, etc.) without probable cause. It further prohibits intermediaries who hold this information (libraries, banks) from disclosing that they’ve produced the records, under threat of imprisonment. Court orders are issues by a secret intelligence court in the capitol in which judges have little oversight power. (ACLU)
Section 505 and NSLs
Under Section 505, the NSD can seize a wide variety of business and financial records using NSLs, issues at the sole discretion of the Justice Department (no external oversight). With NSLs, agents can demand personal records (including website histories and e-mail addresses) without prior court approval. In addition to expanding NSL powers the Patriot Act also imposed a blanket gag order on recipients.
Since the PATRIOT Act in 2001, as a result of relaxed restrictions on FBI authority, the number of NSLs has increased significantly: Previous reports had indicated a hundred-fold increase to 30,000 annually, but a March 2007 DOJ OIG report estimates more than 143,000 NSLs have been issues between 2003 and 2005. See Controversy section for more about the 2007 OIG Report and FBI abuses.
(Also see History section)
Section 216
Allows the government to obtain records showing e-mail subject lines and web histories without probable cause.
Debate over formation of the NSD
Gonzales Mulls Need for Terror Reform (by Vanessa Blum, Legal Times)
Retroactive immunity for telecom companies
As Congress struggled to overhaul the 1978 Foreign Intelligence Surveillance Act (FISA) at the beginning of this year, the Bush Administration and civil libertarians alike opposed a compromise measure introduced by Sen. Arlen Specter (R-Pa) that addresses one of the more contentious issues: whether or not to grant retroactive immunity to telecommunications firms that took part in the NSA’s warrantless wiretapping activities after September 11, 2001. (The companies in question assisted the government in surveillance activities before it had Congressional mandate to engage in them).
While Democrats objected to the measure on the grounds that it would circumvent the 1978 law and provide no civil recourse to the many cases pending against telecom companies, Republicans generally favored an immunity provision, and threatened to veto any legislation that didn’t contain one. During the debates over the proposed legislation, a spokesman for the NSD said that any measure which fails to provide retroactive immunity would “risk losing the cooperation of private partners in the future,” and that allowing the cases to continue “risks the further disclosure of highly classified information.” He also added that the lawsuits “could result in the expenditure of taxpayer resources.” From the other end the political spectrum, the ACLU condemned the Specter amendment for leaving loopholes open to the government.
In March 2008, the House approved a new FISA bill (passed by a 213-197 margin) denying retroactive immunity to telecommunications companies that have broken the law. The bill also refused to grant most new executive surveillance powers without warrants.
As of March 27, 2008, the Senate continues to debate two bills, one granting retroactive immunity, the other denying it. Civil and constitutional rights groups continue to contend that the OIG investigation-mandated reforms have not done enough to prohibit NSL powers, which federal agents continue to abuse. (e.g., surveillance investigations and seizure of secondary targets without any basis for suspicion).
Reforms Failed to Curb FBI Spying (by William Fisher, Inter Press Service/Antiwar.com)
House Democrats reject telecom amnesty, warrantless surveillance (by Glen Greenwald, Salon News)
DoJ, ACLU cool to Specter’s FISA deal,” (by Helen Fessenden, The Hill)
Telecoms Pressed on Surveillance: Democrats Seek Details on What Government Is Given (by Ellen Nakashima, Washington Post)
Former Directors:
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Kenneth Wainstein
A Virginia native, Kenneth Wainstein grew up outside of Alexandria, VA, and earned an undergraduate degree from the University of Virginia in 1984. After earning a law degree from the School of Law at the University of California, Berkeley, he clerked for the Thomas Penfield Jackson in the U.S. District Court for the District of Columbia.
Bush promoted Wainstein to Assistant to the President for Homeland Security and Counterterrorism in March 2008.
Kenneth L. Wainstein Sworn in as First Assistant Attorney General for the National Security Division, Other Senior National Security Division Officials Announced (DOJ Press Release)
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- Overview
- History
- What it Does
- Where Does the Money Go
- Controversies
- Suggested Reforms
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National Security Division
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