U.S. can target bank records, expert believes
WASHINGTON – Because a person’s bank records are not deemed to be private in national security investigations, U.S. government agencies – including the Pentagon – can request these records without a warrant, an expert in privacy law said Sunday.
The Defense Department and CIA are barred from conducting criminal investigations within the United States, but they have claimed the authority to gather intelligence to protect their operations.
On Saturday, officials of both agencies confirmed they had investigated suspicious individuals in the United States by asking for and obtaining bank records and credit information.
“This is almost surely legal. It is not like warrantless wiretapping” on phone conversations, said James X. Dempsey, a privacy law expert with the Center for Democracy and Technology, a Washington policy center that studies civil liberties in the digital age.
Bank privacy laws make an exception for government agencies that request records as part of an investigation related to “intelligence or counterintelligence or international terrorism,” and the Pentagon says it can gather intelligence to protect its military bases from spies and saboteurs.
But just because the activity is legal, Dempsey said, “doesn’t mean it’s a good idea. The Defense Department is exploiting a gray zone in the law.”
In a statement Sunday, the new chairman of the House Intelligence Committee said his panel would take a hard look at the Pentagon’s program.
“Any expansion by the department into intelligence collection, particularly on U.S. soil, is something our committee will thoroughly review,” said Rep. Silvestre Reyes, D-Texas.
In an appearance on “Fox News Sunday,” Vice President Dick Cheney defended the Pentagon’s effort as limited and legal.
This “allows us to collect financial information … on persons we have reason to suspect,” he said. “It’s a perfectly legitimate activity. There’s nothing wrong with it or illegal. It doesn’t violate civil rights. And if an institution that receives one of these … disagrees with it, they’re free to go to court to try to stop its execution.”
But because the request is secret, it is not likely that the person whose records are being sought will complain. Under the bank privacy law, “no financial institution, or officer or employee shall disclose to any person that a government authority (conducting an intelligence investigation) has sought or obtained access to a customer’s financial records.”
In the past, the Supreme Court has drawn a distinction between what is truly private and what may be searched by the government.
For example, homes and phone conversations are deemed private, and the government cannot enter a home or listen to a phone call without a search warrant from a judge.
However, in the 1970s the court said that bank records and listings of phone numbers were not truly private, and that officials may obtain these records if they have a good reason.
Afterward, Congress passed laws requiring banks and phone companies to protect the privacy of their customers’ records, but these measures included exceptions for investigations related to national security.
The New York Times first reported on its Web site Saturday that military intelligence officials had sought bank records in as many as 500 investigations during the past five years.