Comments on: The Pentagon, the CIA, and National Security Letters http://www.concurringopinions.com/archives/2007/01/the_pentagon_th.html The Law, the Universe, and Everything Sun, 22 Nov 2009 15:33:39 -0700 http://wordpress.org/?v=2.8.3 hourly 1 By: James Maxwell http://www.concurringopinions.com/archives/2007/01/the_pentagon_th.html/comment-page-1#comment-55632 James Maxwell Sun, 18 Mar 2007 04:34:16 +0000 http://www.solove.org/archives/2007/01/the-pentagon-the-cia-and-national-security-letters.html#comment-55632 See Flowers v. USA presently before the U.S. Supreme Court#06-918 Military v.the right to finncial privacy act. The 9th Circuit in its opinion Flowers v. Dept of Army, et al. decided military personnel cannot sue under the RFPA. See Flowers v. USA presently before the U.S. Supreme Court#06-918 Military v.the right to finncial privacy act. The 9th Circuit in its opinion Flowers v. Dept of Army, et al. decided military personnel cannot sue under the RFPA.

]]> By: Crystal http://www.concurringopinions.com/archives/2007/01/the_pentagon_th.html/comment-page-1#comment-55631 Crystal Mon, 15 Jan 2007 19:50:38 +0000 http://www.solove.org/archives/2007/01/the-pentagon-the-cia-and-national-security-letters.html#comment-55631 I wish they would spend a little time looking at thee Bush financial transactions ( all Of them. Daddy, and the sons). It would also be refreshing and enlightening for them to review Jim Baker and Dick Cheny's financial records for the past 30 years. I wish they would spend a little time looking at thee Bush financial transactions ( all Of them. Daddy, and the sons). It would also be refreshing and enlightening for them to review Jim Baker and Dick Cheny’s financial records for the past 30 years.

]]> By: Tracy Johnson http://www.concurringopinions.com/archives/2007/01/the_pentagon_th.html/comment-page-1#comment-55630 Tracy Johnson Mon, 15 Jan 2007 17:00:58 +0000 http://www.solove.org/archives/2007/01/the-pentagon-the-cia-and-national-security-letters.html#comment-55630 Is this a result of last night's episode of '24' ? (Although they did FBI letters in the show.) Is this a result of last night’s episode of ‘24′ ? (Although they did FBI letters in the show.)

]]> By: Bruce Boyden http://www.concurringopinions.com/archives/2007/01/the_pentagon_th.html/comment-page-1#comment-55629 Bruce Boyden Sun, 14 Jan 2007 18:08:43 +0000 http://www.solove.org/archives/2007/01/the-pentagon-the-cia-and-national-security-letters.html#comment-55629 P.S. 15 U.S.C. § 1681v provides similar authority for non-FBI agencies under the FCRA, only in that case disclosure by the consumer reporting agency is mandatory ("a consumer reporting agency <i>shall furnish</i> a consumer report"). P.S. 15 U.S.C. § 1681v provides similar authority for non-FBI agencies under the FCRA, only in that case disclosure by the consumer reporting agency is mandatory (”a consumer reporting agency shall furnish a consumer report”).

]]> By: Bruce Boyden http://www.concurringopinions.com/archives/2007/01/the_pentagon_th.html/comment-page-1#comment-55628 Bruce Boyden Sun, 14 Jan 2007 17:37:57 +0000 http://www.solove.org/archives/2007/01/the-pentagon-the-cia-and-national-security-letters.html#comment-55628 Interesting. 3414(a)(1) provides: <blockquote>(1) Nothing in this chapter . . . shall apply to the production and disclosure of financial records pursuant to requests from— . . . (C) a Government authority authorized to conduct investigations of, or intelligence or counterintelligence analyses related to, international terrorism for the purpose of conducting such investigations or analyses.</blockquote> So if the Defense Dept. and CIA are in fact authorized to conduct investigations of, or intelligence or counterintelligence analyses related to, international terrorism in the U.S. (are they?), then the limits imposed on government requests for records by the rest of the RFPA don't apply. The pre-RFPA law, under U.S. v. Miller, was that it was not a Fourth Amendment violation to collect such information from banks. Of course merely having the authority to investigate is only one side of the coin; the banks have to actually comply. That could explain the references to "voluntary" compliance. 3414(a)(5)(A) makes compliance with a 3414(a)(1) request mandatory, but only in the context of a "request for a customer’s or entity’s financial records made pursuant to this subsection by the Federal Bureau of Investigation." The rest of 3414(a)(5) then goes on to place limits on the FBI's authority to make such requests, such as that the "investigation of a United States person is not conducted solely upon the basis of activities protected by the [F]irst [A]mendment . . . ." Perhaps the intent was that only the FBI could make such requests, whether compulsory or not -- but then subparagraphs 3414(a)(1)(A) and (B) are a bit puzzling, as they appear to make the RFPA not applicable to non-FBI agencies. Alternatively, perhaps the idea was that only the FBI's requests were compulsory, and that's why the limits were placed on the FBI but not other agencies. As a third theory, maybe 3414(a) as a whole has been entirely mucked up by amendments and it's indeterminate what the interrelationship is supposed to be. (a)(1)(C), quoted above, was added in 2001 by the Patriot Act; (a)(5) was tacked on in 1986, and not part of the original RFPA. A look at the 1986 amendment legislative history might be helpful. There's a record-keeping requirement for general 3414(a)(1) requests in 3414(a)(4), but no explicit command (unlike 3414(a)(5)(C) for the FBI) that it be disclosed to Congress. Interesting. 3414(a)(1) provides:

(1) Nothing in this chapter . . . shall apply to the production and disclosure of financial records pursuant to requests from— . . .

(C) a Government authority authorized to conduct investigations of, or intelligence or counterintelligence analyses related to, international terrorism for the purpose of conducting such investigations or analyses.

So if the Defense Dept. and CIA are in fact authorized to conduct investigations of, or intelligence or counterintelligence analyses related to, international terrorism in the U.S. (are they?), then the limits imposed on government requests for records by the rest of the RFPA don’t apply. The pre-RFPA law, under U.S. v. Miller, was that it was not a Fourth Amendment violation to collect such information from banks.

Of course merely having the authority to investigate is only one side of the coin; the banks have to actually comply. That could explain the references to “voluntary” compliance. 3414(a)(5)(A) makes compliance with a 3414(a)(1) request mandatory, but only in the context of a “request for a customer’s or entity’s financial records made pursuant to this subsection by the Federal Bureau of Investigation.” The rest of 3414(a)(5) then goes on to place limits on the FBI’s authority to make such requests, such as that the “investigation of a United States person is not conducted solely upon the basis of activities protected by the [F]irst [A]mendment . . . .” Perhaps the intent was that only the FBI could make such requests, whether compulsory or not — but then subparagraphs 3414(a)(1)(A) and (B) are a bit puzzling, as they appear to make the RFPA not applicable to non-FBI agencies. Alternatively, perhaps the idea was that only the FBI’s requests were compulsory, and that’s why the limits were placed on the FBI but not other agencies. As a third theory, maybe 3414(a) as a whole has been entirely mucked up by amendments and it’s indeterminate what the interrelationship is supposed to be. (a)(1)(C), quoted above, was added in 2001 by the Patriot Act; (a)(5) was tacked on in 1986, and not part of the original RFPA. A look at the 1986 amendment legislative history might be helpful.

There’s a record-keeping requirement for general 3414(a)(1) requests in 3414(a)(4), but no explicit command (unlike 3414(a)(5)(C) for the FBI) that it be disclosed to Congress.

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