A new report by a government watchdog demonstrates why Americans must be vigilant and not too trusting when it comes to Uncle Sam’s prying eyes.
The Justice Department’s Office of the Inspector General, in a review issued Thursday, came as close as it could to saying the Drug Enforcement Administration illegally ran a massive data collection effort. The extensive campaign started in 1992 during William P. Barr’s first stint as attorney general, under President George H.W. Bush. Barr took office again this year under President Trump.
DEA’s collection of “records for billions of telephone calls from the United States to many different countries,” said the report, “raised significant legal questions” until it was halted in 2013 under the Obama administration.
That’s one point in a long and disturbing review of three programs, one still operating. The government’s suspect actions and apparent overreach in the name of law enforcement are strikingly like those that exploded in controversy after the release of National Security Agency secrets by the self-exiled Edward Snowden in 2013.
In fact, “several contemporaneous events after the Snowden disclosures,” according to the report, led the inspector general’s office to begin its examination of the DEA’s suspect activity.
Shady because the DEA’s vast information gathering was “not connected to specific investigations or specific individuals under investigation” as required by law, said Deputy Inspector General Bill Blier. “This use of the subpoena authority conflicts with court decisions stating that a federal agency’s issuance of administrative subpoenas must be for records relevant or material to a specific investigation.”
He issued the statement because his boss, Inspector General Michael E. Horowitz, recused himself from the examination. Horowitz had senior management jobs in the department’s Criminal Division, from 1999 through 2002, when it was involved with the DEA operation.
Administrative subpoenas were issued by DEA without court approval and allowed the bulk data collection “in support of investigations by non-DEA federal agencies that had no apparent connection to specific drug investigations,” according to the report. But in addition to the court decisions Blier mentioned, the report said the law limits the subpoenaed information to that needed for “a drug investigation.”
DEA contends it is committed to vetting its practices “through a rigorous legal review” and following Justice Department policies and procedures. “We take very seriously our responsibility to remain fair and impartial during criminal investigations and remain closely tethered to the rule of law,” said Mary Brandenberger, chief of DEA’s national media affairs section.
The inspector general’s findings about DEA’s apparent violation of the law makes the tethering seem weak and the claimed rigorous review appear false.
Instead of following the statutes and court decisions, the DEA “failed to conduct a comprehensive legal analysis of the DEA’s use of its administrative subpoena authority” and exhibited an “absence of a robust legal review,” the report said.
One problem might be what the law allows. Why should agencies be allowed to issue subpoenas without court review? Why shouldn’t officials be required to convince a judge that a far-reaching subpoena is necessary?
DEA agreed with an inspector general’s recommendation to do “a rigorous written legal assessment” before using bulk collection administrative subpoenas and has already begun that process, Brandenberger said. That’s no substitute for independent judicial review.
The collection of “metadata” telephone records did not include the content of calls. Their dates, times, lengths and numbers of the originating and receiving phones were captured.
Another program that began in 2008 used administrative subpoenas “to collect bulk purchase data for a particular good or service sold by selected vendors.” But again, according to the report, not for “particular identifiable investigations or targets.”
Instead, the “subpoenas were issued periodically to selected vendors of the particular good or service and required production of customer information for each purchase.”
DEA would then compare that data with “various law enforcement databases to identify any matches, or ‘hits,’ to identify potential targets for further investigation.” The report said DEA stopped this program in 2013 after questions from the inspector general’s office.
Still active is a third program that uses an unidentified telecommunications company to maintain and analyze “its own collection of bulk telephone metadata for billions of calls,” the report said. In response to administrative subpoenas, the company can “generate reports that identify unique connections to target phone numbers” for law enforcement agencies, including DEA.
“Although this program is not one that the DEA owns,” the inspector general’s office added, “the DEA is a major customer.”
While the metadata programs DEA operated are stopped now, a memo sent March 22 to the inspector general’s office from Bradley Weinsheimer, an associate deputy attorney general, leaves open the possibility DEA could create another program later.
Although Justice and DEA “have no plans to reinstate any of the discontinued bulk collection programs discussed in the OIG report,” the memo said department officials “will ensure that the Department establishes a policy or directive sufficient to ensure that, if the DEA or the Department considers another bulk collection using administrative subpoenas, the DEA … will conduct a rigorous, objective legal analysis, memorialized in writing, in advance of initiating such a program.”
We have DEA’s word on that.