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Article posted Jul 10 2013, 2:36 AM Category: Big Brother/Orwellian Source: EFF.org Print

Questions for Comey: Former Top DOJ Attorney Who Oversaw NSA Spying Under Bush is Nominated to Become Next FBI Director

BY MARK M. JAYCOX, Electronic Frontier Foundation

Current Federal Bureau of Investigation (FBI) Director Robert Mueller's term is expiring (again), and the Senate Judiciary Committee will be holding a hearing to question the nominee to replace Mueller, James Comey. The FBI is deeply linked with the NSA's unconstitutional domestic spying, and Comey was the Deputy Attorney General and Acting Attorney General under President Bush who approved almost all of the aspects of the secretive programs that collect Americans' information, emails, and phone calls. One such program--uncovered in a leaked top secret order of the secret court overseeing the spying--uses Section 215 of the PATRIOT Act to order Verizon Business Network Services to send all of its customers' call information to the NSA.

Tomorrow's hearing is another chance for the Senate to further investigate these programs. A coalition of over 100 civil liberties organizations and 500,000 people have come together to demand a special investigatory committee, more accountability, and legislative fixes to end the unconstitutional program of domestic spying. (Join them now.) We've already drafted questions that Congress must ask about these programs. With the upcoming hearing, the Senators should get Comey's word that he will stop the unconstitutional programs facilitated by the FBI.

Here are a some questions to ask Comey:

1)   Rep. Jim Sensenbrenner, one of the original authors of Section 215 of the PATRIOT Act, has stated that the FBI's use of Section 215 is an "abuse of the law." Will you make a commitment today that, if confirmed, you will stop the FBI from using Section 215 to collect calling information, or any other information, about Americans in bulk?

2)   Articles by both the Wall Street Journal (paywall) and New York Times revealed that the secret court overseeing the spying, the Foreign Intelligence Surveillance Court (FISA Court), doesn't believe that communications metadata is protected under the Fourth Amendment or First Amendment of the Constitution. Do you think the FISA Court is right?

3)   Officials have stated that the Supreme Court case Smith v. Maryland supports the constitutionality of the 215 program. Of course, Smith only considered the Fourth Amendment implications of calling information for a single subscriber. Do you believe that the constitutional analysis changes when calling information is collected by the government in bulk? Is the constitutional analysis different for any information collected in bulk? What are the implications for the First Amendment when it comes to collecting information in bulk?

4)   Section 215 of the PATRIOT Act allows the FBI to obtain "any tangible things" that are relevant to an authorized national security investigation. Articles by both the Wall Street Journal and New York Times revealed that the secret court overseeing the spying, the Foreign Intelligence Surveillance Court (FISA Court), has vastly expanded the ability of law enforcement to sidestep Fourth Amendment protections by redefining "relevant." Can you explain how my call records are relevant to an authorized national security investigation? How are all Americans' calling information relevant?

5)   Section 215 of the PATRIOT Act allows the FBI to obtain "any tangible things" that are relevant to an authorized national security investigation. Prior to this nomination, you were the Acting Attorney General of the Department of Justice and well versed in national security and constitutional law. Can you explain how "any tangible things" could include information that a communications company would not otherwise produce, record, or store in a tangible form?

6)   The top secret order compelling Verizon to give the NSA all Americans' calling information asks for calling information to be provided on an "ongoing, daily basis." Yet, Section 215 only permits the production of "tangible things." Can you explain how an order issued under Section 215 can compel the production of something that does not yet exist--indeed, the very definition of an intangible thing?

7)   In light of the revelations of widespread, dragnet, unconstitutional spying, are you personally satisfied that the government--Congress, the Bush and Obama Administrations, and the FISA court system--has disclosed enough about these domestic surveillance programs and the law that sustains them to meet the standards of the rule of law in a democratic society?





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