, , , ,

Title 18, Part I, Chapter 67, § 1385

§1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

I seem to remember a recent Attorney General saying that certain norms of behavior were “quaint.” That seems to be standard operating procedure with this administration.

The American Civil Liberties Union has done a little asking about “quaint” things. You know, search warrants and the like. National Security Letters.

….In October 2007, the ACLU received documents from the Department of Defense that reveal that DoD has secretly issued hundreds of NSLs to obtain private and sensitive records of people within the United States without court approval. A comprehensive analysis of 455 NSLs issued after 9/11 shows that the Defense Department seems to have collaborated with the FBI to circumvent the law, may have overstepped its legal authority to obtain financial and credit records, provided misleading information to Congress, and silenced NSL recipients from speaking out about the records requests….

There’s been a little erosion of Posse comitatus since 1878 but, “…it remains a deterrent to prevent the unauthorized deployment of troops at the local level in response to what is purely a civilian law enforcement matter…”

First, a little background:
November 6, 2005

….The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters — one of which can be used to sweep up the records of many people — are extending the bureau’s reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans.

Issued by FBI field supervisors, national security letters do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress. The executive branch maintains only statistics, which are incomplete and confined to classified reports. The Bush administration defeated legislation and a lawsuit to require a public accounting, and has offered no example in which the use of a national security letter helped disrupt a terrorist plot.

The burgeoning use of national security letters coincides with an unannounced decision to deposit all the information they yield into government data banks — and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for “state, local and tribal” governments and for “appropriate private sector entities,” which are not defined….

Executive Order 13388

Look what’s changed in a few years:

…A March 2007 report from the Justice Department’s Inspector General (IG) estimated that the FBI issued over 143,000 NSLs between 2003 and 2005, an astronomical increase from previous years….

There’s a math thing going on here.

Okay, so let’s take a look at some of those Freedom of Information Act documents obtained by the ACLU:

Ser 21/U0010
26 Jan 06

Dear [redacted]

I am a supervisory official designated by the General Counsel of the Department of the Navy to make the certification necessary under 15 U.S.C. § 1681v to compel disclosure of requested information and provide your agency with safe harbor.

In accordance with 15 U.S.C. § 1681v, I hereby certify that the information requested is necessary for an investigation of and/or analysis related to international terrorism.

Therefore, pursuant to Executive Order 12333 and Title 15 U.S.C. § 1681v of the Fair Credit Reporting Act you are directed to provide the Naval Criminal Investigative Service (NCIS) with a consumer report and all other information you possess in your files for the below listed consumer:

Consumer Name: [redacted]

Date of Birth: [redacted]

Social Security Number: [redacted]

Please be advised that 15 U.S.C. § 1681v prohibits [original underlined] any consumer reporting agency or officer, employee or agent of such agency from disclosing to any person that the NCIS has sought or obtained access to information or records under these provisions. Furthermore, any consumer reporting agency, or officer, employee or agent of such agency, is prohibited [original underlined] from including in any consumer report any information that would indicate or disclose that the NCIS has sought or obtained such information.

As a result of the sensitive nature of this request, please contact NCIS Special Agent [redacted] telephone [redacted] to make arrangements to provide the records. Your cooperation in this matter is greatly appreciated.


Executive Order 12333

Executive Order 13355 [amends 12333]

Hmmm. Let’s check out that part of the code:

Title 15, Chapter 41, Subchapter III, § 1681v

§ 1681v. Disclosures to governmental agencies for counterterrorism purposes

(a) Disclosure
Notwithstanding section 1681b of this title or any other provision of this subchapter, a consumer reporting agency shall furnish a consumer report of a consumer and all other information in a consumer’s file to a government agency authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism when presented with a written certification by such government agency that such information is necessary for the agency’s conduct or such investigation, activity or analysis.
(b) Form of certification
The certification described in subsection (a) of this section shall be signed by a supervisory official designated by the head of a Federal agency or an officer of a Federal agency whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate.

(c) Confidentiality
No consumer reporting agency, or officer, employee, or agent of such consumer reporting agency, shall disclose to any person, or specify in any consumer report, that a government agency has sought or obtained access to information under subsection (a) of this section.
(d) Rule of construction
Nothing in section 1681u of this title shall be construed to limit the authority of the Director of the Federal Bureau of Investigation under this section.
(e) Safe harbor
Notwithstanding any other provision of this subchapter, any consumer reporting agency or agent or employee thereof making disclosure of consumer reports or other information pursuant to this section in good-faith reliance upon a certification of a government agency pursuant to the provisions of this section shall not be liable to any person for such disclosure under this subchapter, the constitution of any State, or any law or regulation of any State or any political subdivision of any State.

What does the ACLU say about this?:

….Documents show the Defense Department may be flouting the law and, by simply asking the FBI to issue the NSLs on their behalf, accessing documents it is not entitled to receive. There is no evidence that the FBI has ever turned down such a request….

The Defense Department told Congress that it seeks NSL assistance from the FBI only in joint investigations, but an internal program review shows that the military asks the FBI to issue NSLs in strictly Defense Department investigations….

….Although compliance with Defense Department-issued NSLs is voluntary, the coercive language found in these letters would lead a reader to believe compliance was mandatory. For example, one NSL was stamped multiple times with the words “subpoena” and “non-disclosure obligation” to intimidate its recipients with authority the Defense Department does not have. According to Navy records, no credit agency has ever refused to comply with the military’s requests, and only two financial institutions have refused to comply….

….The Defense Department appears to “gag” all NSL recipients as a matter of course, and, despite recent changes to the law, the NSLs issued by the Defense Department do not inform recipients of their new right to challenge the request and gag order in court…

Would it be that difficult to go through the FBI and ask a court for a warrant? What, the paperwork is too onerous?