" According to the American Civil Liberties Union (ACLU). A "national security letter" (NSL) is basically a written demand by the FBI or other federal law enforcement agencies for a group or organization to turn over records or data or documents, with no warrant attached to the demand. They are given out without probably cause or any justice-related back-up, and have been used extensively since the Patriot Act; they are seen by civil rights activists, legal scholars and others as an example of the over-reaching authority granted to federal agencies by the Patriot Act (and clearly in conflict with the Fourth Amendment).
Indeed, an article in the New York Times Magazine (Rosen 2007) NSLs are "especially susceptible to abuse because they're not subject to independent review by a judge or a magistrate." And that fact is as it is because "recipients are forbidden to discuss them." The article quotes from the president of a small Internet access business - originally printed in the Washington Post and used in the Times piece - who said the experience of receiving a national security letter (NSL) was "stressful and surreal." Under the threat of "criminal prosecution" he was "forbidden to discuss any aspect of the case with his colleagues, his family, his girlfriend or the client whose data he had been ordered to reveal" (Rosen 2007).
To briefly revisit the Fourth Amendment, the right of people to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" and warrants shall not be forthcoming from law enforcement without "probable cause."
In fairness to the Federal Bureau of Investigation, Rosen points out that the FBI is struggling to "reinvent itself as an agency devoted not merely to prosecuting past crimes but also to preventing future ones." And with their limited experience in prevention, it appears, Rosen continues, that their strategy is "based on the idea that the best way to avoid future 9/11's is to collect information on lots of people"; and though the great majority of those people are obviously not involved in terrorism, the dragnet searches "of millions of people who turn out to be innocent" just might catch a terrorist or two in the meantime. Rosen asserts that despite initial concerns expressed during the debate over the Patriot Act - and during its reauthorization in 2006 - "...few predicted the magnitude of the FBI's incompetence." In the spirit of the Keystone Kops, Rosen goes on, the FBI "didn't realize when it received data on the wrong person," and when an FBI official complained about this gap in credibility and precision to his superiors, "he was ignored."
Section 505 of the Patriot Act expanded approval authority to "Special Agents in Charge" of field offices to authorize NSLs, the ACLU reports; previously, the Patriot Act allowed only "senior FBI officials" to sign off on NSLs. The ACLU believes that the switch from insisting on "senior" FBI professionals down to "lower level agents" has led to abuse of NSLs.
The ACLU (www.aclu.org) report on the Justice Department OIG investigations indicates that only a "tiny sample of the hundreds of thousands" of NSLs that had been issued were examined by the OIG analysis; and yet, the Inspector General (IG) "found so many violations and abuses with such a small sample means there are major systemic problems with the FBI's use of NSLs."
In conducting its investigation, the OIG interviewed over 100 FBI agents at headquarters in Washington D.C., and over 50 employees in field offices. While repeatedly violating the Patriot Act's requirements the FBI had "no policy or directive requiring the retention of signed copies of national security letters or any requirement to upload" NSLs into FBI case management databases, the ACLU explains in its March 9, 2007 report. Some of the databases that the FBI uses to store NSL-derived information are "accessed by nearly 12,000 users, including members of the Joint Terrorism Task Forces (JTTF)," the ACLU continues.
In fact the FBI is using NSLs to "establish evidence to support wiretap, electronic surveillance and physical search warrants"; since NSLs themselves are created with little legal backup, if any, using an NSL is a strange and even legally shaky way to justify additional stealth searches into private bank accounts and phone records of Americans with no connection whatsoever to terrorism, the ACLU's report continues. Moreover, the FBI is disseminating information it derives from NSLs to "...a variety of federal, state, and local law enforcement agencies, including the National Security Agency (NSA), the CIA, and the JTTF.
There is no system or requirement in the FBI policies to purge the information derived from the NSLs in FBI databases, "regardless of the outcome of the investigation." Those databases must be purged "immediately," the ACLU asserts; "The abuses of NSL power led to the widespread dissemination of personal information about innocent Americans." If the public is to believe that NSLs are "a critical tool in keeping us safe, but the FBI cannot even be bothered to keep accurate records," the ACLU goes on, the FBI must "clean up its act."
Also in the Inspector General's report was the fact that the number of NSL requests reported to Congress was "significantly understated" (p. xvii). Supposedly, the number of NSL requests the FBI filed in 2005 was 47,000; however, the IG discovered that there were "approximately 17% more NSLs in the case files than were recorded in the database," another example of either sloppy record-keeping or deliberate falsification of information provided to Congress. Overall, the IG found that the FBI had used 143,074 NSL requests between the years 2003 and 2005. And the "overwhelming majority" of these NSL requests sought the "most sensitive information" - telephone till billing records, electronic communication transactional records, and email subscriber information, according to the ACLU report on the investigation conducted by the OIG.
The FBI's use of the information gleaned from the NSL requests "is used to assist in the identification of the subject's family members, associates, living arrangements and contacts" (p. xxiv). Why gather all that information about people who have a relationship with the subject being scrutinized and spied on? It is used in turn to generate new leads, but that is again a violation of the spirit of the Fourth Amendment because the FBI maintains "no information on whether the target of the NSL is the subject of an underlying investigation or another individual," the ACLU continues. In one example of the abuse of the NSL tool, the FBI issues an NSL to a university in North Carolina that sought "several categories of records, including applications for admission, housing information, emergency contacts and campus health records" (p. xxxii).
Meanwhile, the ACLU "applauded Congressman Jane Harmon" - she is chair of the Homeland Security Subcommittee on Intelligence - for the legislation she introduced that would "rein in the national Security letter authority" that was expanded by the reauthorization of the Patriot Act (ACLU 2007). Her legislation in fact was launched after the House Permanent Select Committee on Intelligence held a hearing and "grilled government witnesses on the recent revelations that the FBI abused the NSL authority" (ACLU 2007). "Today's hearing shows that we have a broken system - and Congress needs to provide the fix. The FBI cannot be trusted with the unchecked power of NSLs," according to Caroline Fredrickson, who is Director of the ACLU Washington Legislative Office.
The Constitution and the laws of the American people "are not merely advisory," said Timothy D. Sparapani, legislative counsel for the ACLU, "but this administration has treated them as such." In another press release, March 9, 2007, the ACLU insisted that the FBI's excuses for abusing the authority given it by the Patriot Act - saying they were due to "outmoded computer systems," and "unintentional" human error - "were not credible." The ACLU cited evidence that the FBI signed contracts with phone companies to gather customer records, but "later sought to cover up the illegal requests."
It seems, said ACLU Executive Director Anthony D. Romero, "that every time the American people entrust the Bush administration with some new power, it not only abuses that power but also seizes additional powers without our knowledge." The ACLU quoted Federal District Court Judge Victor Marrero, who struck down a "draconian gag provision of the NSL power" (meaning all NSL activities would have been off limits for evaluation even by IG inspectors), as saying: "As our sunshine laws and judicial doctrine attest, democracy abhors undue secrecy. An unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society. Such a claim is especially inimical to democratic values for reasons borne out by painful experience."
GENERALIZATIONS #4: PATRIOT ACT TOOLS MISUSED by BUSH ADMINISTRATION / CONFLICTS WITH the FOURTH AMENDMENT / the OFFICE of the INSPECTOR GENERAL'S REPORT…