TLJ News from July 11-15, 2007

DOJ Announces Enhanced Oversight of Surveillance Activities

7/13. Attorney General Alberto Gonzales and Federal Bureau of Investigation (FBI) Director Robert Mueller sent a letter [6 pages in PDF] to Rep. Nancy Pelosi (D-CA), the Speaker of the House, and a substantially identical letter to Vice President Richard Cheney, in his capacity as President of the Senate, regarding measures to be taken by the Department of Justice (DOJ) and its FBI to enhance DOJ oversight of the surveillance and search and seizure activities of the DOJ and FBI. The letters state that this oversight pertains to "national security activities".

Members of the House and Senate, the DOJ's Office of the Inspector General (OIG), and others have faulted the DOJ's and FBI's failure to comply with applicable laws and/or internal procedures governing electronic surveillance. The DOJ may now seek to head off outside oversight of its activities.

On Tuesday, July 24, 2007, at 9:30 AM, the Senate Judiciary Committee (SJC) will hold an oversight hearing on the Department of Justice (DOJ) in Room 216 of the Hart Building.

The DOJ letter states that "The effort will include the implementation of a dedicated Oversight Section within the Department's National Security Division and the proposed establishment of a new Office of Integrity and Compliance within the Federal Bureau of Investigation."

The DOJ also issued a release that states that the new Oversight Section of the National Security Division (NSD) will be "specifically dedicated to ensuring that the Department fulfills its national security oversight responsibilities."

This release adds that "Until recently, the Department’s national security oversight largely focused on the FBI’s use of FISA authorities, with the Department conducting accuracy reviews to ensure the accuracy of FBI declarations to the Foreign Intelligence Surveillance Court (FISC) and minimization audits to ensure FISA information is handled appropriately."

This release also addresses the government's use of National Security Letters (NSLs). It states that "The Oversight Section will expand this focus beyond FISA to include all aspects of the FBI’s national security program and its use of national security tools."

It adds that the new section will conduct "regular reviews of national security activities at FBI field offices and FBI Headquarters national security units", and that these reviews "are not limited to the FBI’s use of FISA or National Security Letters, but examine all national security activities to ensure compliance with all applicable laws, guidelines and policies".

Whether or not the federal government has violated the Foreign Intelligence Surveillance Act (FISA) in connection with its operation of the program titled "Terrorist Surveillance Program" or "TSP", and other programs, is the subject of much debate.

Also, on March 9, 2007, the Office of the Inspector General (OIG) released a report [30 MB in PDF] titled "A Review of the Federal Bureau of Investigation's Use of National Security Letters", and a second report [10 MB in PDF] titled "A Review of the Federal Bureau of Investigation’s Use of Section 215 Order for Business Records".

The OIG found that the FBI did not have sufficient controls over its NSL process, did not provide adequate training, and failed to follow its own policies and Attorney General Guidelines. See, story titled "DOJ IG Releases Reports on Use of NSLs and Section 215 Authority" in TLJ Daily E-Mail Alert No. 1,551, March 13, 2007.

NSLs empower the federal government to seize records from internet service providers, phone companies, banks, credit card companies and other financial entities, without court approval. § 505(a) of the USA PATRIOT Act expanded the reach of NSL authority by removing the requirement that these NSLs pertain to an "agent of a foreign power", and by allowing NSLs to be used to compel ISPs to produce records about people who use their services.

People and Appointments

7/13. The Senate confirmed Preston Geren to be Secretary of the Army. See, Congressional Record, July 13, 2007, at Page S9227.

USTR Requests WTO Dispute Settlement Panel on PR China Subsidies

7/12. The Office of the U.S. Trade Representative announced in a release that it has requested that the World Trade Organization (WTO) establish a dispute settlement panel regarding "subsidies provided by China that appear to be prohibited by WTO rules".

The OUSTR release elaborates that this request "challenges several subsidy programs maintained by China that the United States believes are prohibited by WTO rules. Subsidies conditioned either on a firm's use of domestic over imported products or on exports are prohibited by the WTO Agreement on Subsidies and Countervailing Measures. They also are inconsistent with other WTO obligations, including specific commitments undertaken by China as part of its WTO accession agreement to eliminate such subsidies before it joined the WTO on December 11, 2001."

The OUSTR's Sean Spicer stated in this release that there have been two rounds of WTO consultations on this issue, and that "China has taken a positive step by repealing one of the subsidy programs we challenged, but much more needs to be done. We continue to prefer a negotiated settlement to this dispute, but without assurance of complete corrective action by China, we must continue to pursue the WTO process to enforce our rights."

The OUSTR added that Mexico will file its own related request with the WTO.

People and Appointments

7/12. President Bush nominated Thomas O'Brien to be the U.S. Attorney for the Central District of California for the term of four years. If confirmed by the Senate he would replace the previous U.S. Attorney, Debra Yang, whose departure has been the subject of much partisan debate. See, White House release.

7/12. President Bush nominated Edward Yarbrough to be the U.S. Attorney for the Middle District of Tennessee for the term of four years. See, White House release.

More News

7/12. The Federal Communications Commission (FCC) released the text [PDF] of its Second Report and Order and Further Notice of Proposed Rulemaking regarding its Emergency Alert System (EAS) rules. The FCC adopted, but did not release, this item at a May 31, 2007, event. See, story titled "FCC Expands EAS Program" in TLJ Daily E-Mail Alert No. 1,589, May 31, 2007.  This item is FCC 07-109 in EB Docket No. 04-296. Initial comments on the NPRM portion of this item will be due 30 days after publication of a notice in the Federal Register. Reply comments will be due 45 days after such publication. The FCC has not yet published this notice.

People and Appointments

7/11. President Bush nominated Donald Kerr to be Principal Deputy Director of National Intelligence at the Office of the Director of National Intelligence. He is currently Director of the National Reconnaissance Office. He was previously Deputy Director for Science and Technology at the Central Intelligence Agency (CIA). Before that, he worked for the Federal Bureau of Investigation (FBI). If confirmed by the Senate, he would replace U.S. Air Force General Michael Hayden who, along with Attorney General Alberto Gonzales, had been one of the Bush administration's lead spokesmen on the electronic surveillance program titled "Terrorist Surveillance Program". Hayden is now Director of the CIA. See, White House release and release.

7/11. President Bush announced his intent to appoint Kyle McSlarrow (head of the National Cable & Telecommunications Association), Ivan Seidenberg (Ch/CEO of Verizon), and Mike Zafirovski (P/CEO of Nortel) to be members of the President's National Security Telecommunications Advisory Committee (NSTAC). See, White House release.

Go to News from July 6-10, 2007.