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DOJ failed to issue key wiretap reports during Bush’s second term

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For the Bush administration’s entire second term, the U.S. Department of Justice (DOJ) failed to tell Congress how many intrusive wiretaps were carried out by law enforcement, despite a legal requirement that it produce an annual report detailing the practice, a security researcher has learned.

At the same time, Congress shirked its duties as a watchdog and apparently didn’t even ask for the report, Wired reporter David Kravets noted Monday morning.

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The reports, detailing the use of pen registers and trap and trace devices — wiretap methods that reveal a subject’s communications, and who a subject is communicating with, all in real time — were obtained by privacy activist Christopher Soghoian, who used a Freedom of Information Act (FOIA) request to shoehorn out not just the reports, but a series of revealing emails as well.

One of the emails (PDF) — a 2009 exchange between the former deputy assistant attorney general for legislative affairs and a staffer for former Sen. Russ Feingold (D-WI) — lays the situation bare: “I am pleased to attach the criminal pen/trap reports for the last five years,” the DOJ’s Mark Agrast wrote. “The Criminal Division recently discovered that reports had not been filed for 2004 and subsequent years, so they filed all of the reports in 2009.”

In the department’s internal communications, included in the FOIA, Agrast asked subordinates what became of the reports and when they stopped being filed. One individual replied: “Although there was an annual reporting requirement, apparently, no one had been actually filing the annual report. When we discovered the problem this year, we had OEO go back and do the report this year.”

It’s not clear how long the reports were not being filed, but an analysis by Soghoian claims that 1999-2003 did not see reports filed either, with data from all of those years being made public all at once in 2004.

Reached by Raw Story, a DOJ spokesperson did not comment on this report.

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Even if Congress had been given the data on time, it’s not clear if they would have done anything with it.

President Barack Obama, as a U.S. Senator, was skeptical of the blanket spying powers approved by Congress in the Patriot Act, passed shortly after the attacks of Sept. 11, 2001. As a candidate for president and even shortly after taking office, the president was looking to reform those laws to give Congress a greater oversight role. Despite these pledges, Obama in 2011 signed a four-year extension of the act after virtually no debate in Congress.

The last serious debate over wiretapping came ahead of the 2008 presidential election, when Congress went to the mat over whether telephone companies should be held accountable in civil suits for violating laws while assisting federal authorities in domestic spying without adequate court oversight.

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Though initially opposed to that measure as well, Senator Obama changed his stance at the last moment and voted in favor, drawing praise from Republicans after its passage. The Obama administration has since defended that immunity in court filings.

Photo: Flickr user jeffschuler.

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