27 Years Later, Senators Want Inquiry into Barr’s Blessing of Call Logs Collection
WASHINGTON — Two Democratic senators asked the Justice Department’s internal ethics watchdog on Thursday to investigate Attorney General William P. Barr for blessing a secret program at the Drug Enforcement Administration more than a quarter-century ago that went on to collect billions of records of Americans’ phone calls.
The senators — Ron Wyden of Oregon and Patrick J. Leahy of Vermont — accused Mr. Barr, during his first stint as attorney general, of approving “an illegal, bulk surveillance program” in 1992 “without conducting any legal analysis” of it.
“Mr. Barr’s authorization of this sweeping surveillance program without requiring, at minimum, an appropriate legal analysis, was not consistent with his oath to support and defend the Constitution and it likely amounted to professional misconduct,” the senators wrote to the Justice Department’s Office of Professional Responsibility.
A spokeswoman for Mr. Barr did not respond to a request for comment.
The letter comes at a time when Democrats have frequently criticized Mr. Barr for aligning himself with President Trump’s attacks on the F.B.I.’s Russia investigation and for supplying legal defenses for aggressive White House moves, like invoking emergency powers to spend more on a border wall than Congress appropriated and defying subpoenas.
Against that backdrop, the letter portrayed Mr. Barr as having a history of willing to undermine the rule of law in service of expansive uses of executive power.
Mr. Barr approved the call records program in January 1992, when he was attorney general under President George Bush. It continued and expanded under the presidencies of Bill Clinton, George W. Bush and Barack Obama before then-Attorney General Eric H. Holder Jr. ended it in 2013.
The Justice Department disclosed the program’s existence after it ended, in a 2015 court filing, and it was later the subject of a detailed investigative report by USA Today. In March, the Justice Department’s Office of the Inspector General issued a report about the program that included new details about it.
Mr. Holder shut down the program amid the uproar following the leaking of the existence of a similar National Security Agency bulk phone records program by Edward J. Snowden, a former intelligence contractor, in June 2013.
Unlike the N.S.A. program, which collected bulk logs of purely domestic phone calls to be analyzed in hunting for hidden terrorist cells, the Drug Enforcement Administration program collected bulk logs of outgoing international phone calls from the United States to countries deemed to be linked to narcotics trafficking.
But the legal theory behind both programs was similar: The government secretly interpreted statutes allowing law-enforcement officials to gather records deemed to be “relevant” to an investigation as also permitting systematic, bulk collection of American’s communications logs. That theory was aggressive, and a federal appeals court later rejected it in a case challenging the N.S.A. program that Mr. Snowden had brought to light.
In the case of the D.E.A., the agency obtained the records by issuing administrative subpoenas to phone companies. The program had no court oversight and relatively few internal rules and controls for how the data could be used.
By contrast, the Foreign Intelligence Surveillance Court issued orders to the phone companies that they provide their customer records to the N.S.A., and the court imposed many more rules on how that data could be used — although the N.S.A. had technical troubles complying with those rules and frequently violated them, documents declassified after Mr. Snowden’s leaks showed.
After Mr. Barr’s original tenure, the D.E.A. eventually came to share its massive databases with other law-enforcement agencies for querying about matters that did not involve drug cases. It also later invoked the same legal theory to use administrative subpoenas to collect bulk data about Americans’ purchases of money-counter machines, the report from the Office of the Inspector General disclosed.
Citing that report, Mr. Wyden and Mr. Leahy suggested Thursday that Mr. Barr had abused his powers as attorney general by authorizing the counternarcotics agency to use administrative subpoenas to collect Americans’ call records in bulk without conducting an appropriate legal analysis of the idea first.
“Attorney General Barr knew, or should have known, that neither statutory law nor federal case law permitted the D.E.A. to sweep up, in bulk, billions of records of Americans’ telephone communications,” they wrote.
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