Story here.
Is this necessary? Justified? Overreaching? Unconstitutional?
I vote unnecessary, unjustified, definitely overreaching, and possibly unconstitutional. I’m particularly upset that it appears to be the military and the CIA gathering this “intelligence” on U.S. soil. Ironic that this comes to light just before Shrub gives up on his domestic wiretapping project discussed here:
As reported in Newsweek a year ago, the Pentagon’s Counterintelligence Field Activity office has been directing its attention to . . . antiwar protest groups; or even groups protesting particular abuses like Halliburton’s profiteering.
Counterpunch gave us a heads-up about this two years ago, BTW. As did NBC News.
I offer no opinion on your first three analyses, but I am curious as to which part of the Constitution you feel is violated by these actions.
*Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. *
I think you need a warrant to look at financial records. Could possibly be one of those rubberstamp FISA warrants, but a “National Security Letter” doesn’t cut it in my book.
It is worrisome that we are fostering a division in intelligence, like the Soviets did with military intelligence/enforcement and political, the GRU and the NKVD. To put it bluntly, they kept stepping on each others dicks.
It is heartening to note that our military leaders are alert to the threat of radical Islamist infiltration of the Quaker anti-war movement.
If you’ll read the article closely, the Pentagon is now using a “noncompulsory” version of the “national security letter.” A distinction that might or might not be clear to the financial entities asked to produce the records; but I’m sure they all have lawyers on staff.
But the KGB handled both foreign espionage and domestic secret-police work, which made it, arguably, too effective from a civil-liberties POV. The American intelligence system, OTOH, since WWII has been based on the assumption that foreign and domestic intelligence-gathering should be done by separate agencies. E.g., the CIA is not supposed to do domestic espionage, leaving that to the FBI. As for the Pentagon . . . well, I’ve always assumed the Defense Intelligence Agency was likewise limited to gathering intelligence abroad.
Consent is a long-recognized exception to the warrant requirement of the Fourth Amendment. And the article says:
(Bolding mine). Just as a policeman is free to walk up to to you on the street and ask you where you’re going, the Fourth Amendment is not implicated as long as you’re free to disregard his inquiry and go about your business.
The fact that this was practiced, but not known, is a rather clear indication that the letters were weasel-worded in such a way as to appear to compel the recipient to 1)cooperate and 2)not disclose the cooperation.
The latitude Bricker mentions does not allow a policeman to deliberately create the false impression that you are not free to disregard his inquiry and go about your business, while technically avoiding an “arrest” in order to avoid the consequences of false arrest.
Don’t get me wrong - I agree with you, I’m sure - but financial data/activity has long been subject to special rules, governed and implemented by the banking industry itself. Money laundering regulations; “know your customer”, SAR (suspicious activity reports), evidence of so-called “structured” deposits, etc. etc., on a side note, merely holding large amounts of cash is apparently evidence of drug activity and the money can and usually confiscated. In the past, the president took it upon himself to confiscate all the gold coinage from the populace in 1933, renege on contract law, etc - under the dubious guise of the 1917 “Trading with the Enemy” act, so this sort of thing is hardly new. Not saying I like it. One parallel is precisely determining when the “emergency” is over - one assumes that the depression has ended, /s but who knows.
Still, we’re talking about banks, not libraries; and as I noted above, all banks almost certainly have lawyers on staff.
How does this not violate the The Right to Financial Privacy?
And said lawyers are there to protect the banks, not the individuals who put money in the banks. If a financial institution is asked to turn over private records, they certainly have the right to refuse, but they almost certainly will be thinking about what the government might do unofficially if they do so.
Umm, just who’s records are they? The banks’ or their customers? Either the government should ask the account holder’s consent or (if they refuse/ or the government doesn’t want them to know) go get a warrent from a judge. It’s not hard.
That’s very true.
And when the subject of the inquiry is a drug-addled prostitute, we might well inquire if she knew she was free to disregard the inquiry and go about her business.
When the subject is multi-million dollar financial institutions, who have adequate legal representation available, that’s not a concern.
It’s also irrelevant to the issue of constitutionality, which is the only point I raised. The bank voluntarily exposes the customers’ records, and that makes them legitimate evidence without offending the Fourth Amendment.
You are talking about what the government SHOULD do, an issue on which I will take no position at this time. I am simply responding to the claim that the practice is unconstitutional.
Sorry to break it to you, but all that constitution stuff went out the window decades ago. To be sure, lip-service is paid, but that’s about it. Usually the best indication is the policy name - “The Privacy Act” is just that - an act, it just informs you that you have no privacy. As far as whose records they are, the actual depositor is last in line.
Here’s an example of what I’m talking about:
Privacy Act Notice. <<<---- ha hah
“We are authorized to request this information under 5 U.S.C. Chapter 84. Executive Order 9397 authorizes us to ask for your Social Security number, which will be used to identify your account. We will use the information you provide to process the transaction you request.”
Now, one might think their financial information would be private, but it is accessible to just about anyone, and everyone.
“This information may also be shared with other Federal agencies to administer your account or for statistical, auditing, or archiving purposes. In addition, we may share the information with law enforcement agencies investigating, prosecuting, or enforcing a violation of civil or criminal law or with other agencies for the purpose of implementing a statute, rule, or order.”
“It may also be shared with congressional offices, retirement plan sponsors, auditing firms, spouses, former spouses, beneficiaries, persons responsible for your care, and representatives of your estate.”
“It may also be released in response to a court subpoena or to appropriate parties preparing for or engaged in litigation affecting your account.”
And the compulsory-is-voluntary clause:
“You are not required to provide this information, but if you do not, , it will not be possible to process any action you request.”
It still is illegal as far as I can tell.
I’m not sure it is. We lack some critical information necessary to reach that conclusion. For example, these non-compulsory letters could be a “formal written request” pursuant to 12 USC § 3408. I don’t know if customers whose records have been handed over were given notice in accordance with § 3408(4)(A); the story doesn’t say. Or these inquiries might be limited to the name, address, account number, and type of account particular customers hold, in accordance with § 3413(g)(1). Again, the story doesn’t give us enough information to judge.