March 12, 2007

The new scandal about the FBI’s abuse of National Security Letters reveals the dangers not only of Bush’s runaway agency but also of these letters themselves.

They are instruments of unchecked executive power.

They violate the Fourth Amendment and the separation of powers.

And they should be abolished.

These letters are an extraordinarily powerful tool in the hands of the FBI. Basically, they amount to subpoenas the FBI issues by itself, without having to go to a judge or grand jury for approval. (The CIA and the Pentagon are also using these National Security Letters, but to a lesser degree.)

When these letters were first authorized in 1978 to go after spies and terrorists, the FBI was required to have “ ‘specific and articulable’ reasons to believe the records it gathered in secret belonged to a terrorist or spy,” Barton Gellman reported for The Washington Post on November 6, 2005.

The USA Patriot Act, along with the 2004 Intelligence Authorization Act, greatly expanded the use of “National Security Letters.” Now the FBI can slap these Executive Branch subpoenas not only on terrorist suspects but on anyone who is “relevant” to a national security investigation. That’s an extremely low standard. And it can extend to a person three or four times removed from the actual suspect. No matter how far removed, that individual loses basic privacy rights, as the FBI can secretly acquire his or her phone, Internet, or banking records. And the person is never notified about this, either.

What’s more, the innocent people whose information may have been vacuumed up by these National Security Letters now have their names and private records on permanent FBI file.

“Once information is obtained in response to a National Security Letter, it is indefinitely retained and retrievable by the many authorized personnel who have access to various FBI databases,” said FBI’s inspector general, in a report released in early March.

By “many,” the report meant “nearly 12,000 users, including FBI agents and analysts and members of Joint Terrorism Task Forces,” as well as those who have access to the FBI’s Automated Case Support
System.

The FBI under Bush has been getting carpal tunnel syndrome from cranking out these executive branch subpoenas. In 2000, the FBI issued only about 8,500 of them. “After the Patriot Act, according to FBI data, the number of NSL requests increased to approximately 39,000 in 2003, approximately 56,000 in 2004, and approximately 47,000 in 2005,” the report said. But these figures, which the FBI gave to Congress, “significantly understated” the total number of National Security Letter requests the FBI actually made, the report noted.

The report also indicated that the FBI underreported to Congress the number of “U.S. persons,” as opposed to “non-U.S. persons,” who were being investigated by these letters. (Increasingly, the FBI is using these National Security Letter requests to investigate “U.S. persons.” In 2003, “U.S. persons” accounted for 39 percent of the requests; in 2005, 53 percent, the report noted.)

The FBI also failed to use these National Security Letters properly, the report found. It cited many instances of “improper or illegal uses of the National Security Letter authorities,” including going after the wrong person because of a typo. The FBI itself had reported 26 possible violations from 2003 through 2005. But the report itself looked at 77 additional files, and found 22 percent of them contained possible violations that had not been reported by the FBI. It
concluded that “a significant number” of National Security Letter violations “have not been identified or reported by FBI personnel.”

Sometimes, the FBI even bypassed the use of National Security Letters and started issuing “exigent letters,” the report found. “We learned that on over 700 occasions, the FBI obtained telephone billing records or subscriber information from three telephone companies without first issuing NSLs or grand jury subpoenas.” And these letters were signed by “personnel who were not authorized to sign NSLs.”

What’s more, “many were not issued in exigent circumstances,” the report noted.

And sometimes, the FBI tried to cover its tracks.

“In many instances after obtaining such records from the telephone companies, the FBI issue NSLs after the fact to ‘cover’ the information obtained, but these after-the-face NSLs sometimes were issued many months later.” The report said the FBI used these “exigent letters” to get information on 3,000 telephone numbers.

These exigent letters notified the phone companies that “subpoenas requesting this information have been submitted to the U.S. Attorney’s office.” But in all the cases that the report looked at, “we could not confirm one instance in which a subpoena had been submitted to any United States Attorney’s Office before the exigent letter was sent to the telephone companies.”

By using these “exigent letters,” the FBI “circumvented” one of the statutes on National Security Letters and violated internal policies, the report concluded

Amazingly, the report then cleared everyone in the FBI for any criminal liability.

The apparent violations “did not involve criminal misconduct,” the report said.

The ACLU doesn’t buy this.

“It simply is not credible for the FBI to claim that these unauthorized and illegal fishing expeditions were the result of human error or outmoded computer systems,” says Anthony Romero, head of the ACLU.

These violations are the natural outgrowth of the National Security Letter statutes.

“The FBI can now obtain a vast amount of personal and highly confidential information without obtaining court approval, and without any other independent check on the validity or scope of the inquiry,” said Senator Patrick Leahy of Vermont, after passage of the 2004 Intelligence Authorization Act. “The privacy rights of all Americans have been compromised.”

National Security Letters are an invitation to lawlessness.

And Bush’s FBI has accepted that invitation.