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Secure The Blessings Of Liberty

Sen. Russ Feingold will be chairing a Judiciary subcommittee hearing later today — beginning at 3:00 pm ET, due to to slight schedule change — on the overuse and misuse of national security letters by the FBI, and the decided lack of supervision thereof provided within the agency and within the DoJ on that issue.  Witnesses will include:  former Rep. Bob Barr (R-GA); George Christian, of a library association in Connecticut; Suzanne Spaulding and Peter Swire, and it will at least be webcast on the Committee website (because I haven't been able to confirm if C-Span will be doing coverage as yet).

I wanted to put this hearing into context for everyone, and the best way to do that is through Sen. Feingold's own words on this issue.

…I want to make one additional point about national security letters.

There is a crucial difference between obtaining records in national security investigations and in standard criminal investigations. As the General Counsel of the FBI testified before the House Judiciary Committee last week, actions in national security investigations "are typically taken in secret and they don't have the transparency of the criminal justice system." She explained that in the criminal system, agents know that "if they mess up during the course of an investigation, they're going to be cross-examined, they're going to have a federal district judge yelling at them." That means that more vigorous controls and compliance mechanisms are needed with respect to sensitive authorities like national security letters than their analogues in the criminal justice system–something I think the inspector general report demonstrates.

With that background, what did the inspector general find as a result of his audit of the use of NSLs from 2003 to 2005? He found that even the very limited protections in the existing statute were not being followed.

The inspector general found, based on FBI records, that the FBI's use of NSLs expanded exponentially after the PATRIOT Act, moving from approximately 8,500 requests in 2000, to 39,000 requests in 2003, 56,000 requests in 2004, and 47,000 requests in 2005. The total number of requests was 143,074 over the 3-year period.

But the inspector general also found that even those numbers are inaccurate because the FBI had no policies in place with respect to the retention or tracking of NSLs. In many cases, agents did not even keep copies of signed NSLs. As a result, the FBI significantly undercounted its NSL requests. In a sample of 77 case files that the IG looked at, the NSL requests were undercounted by roughly 22 percent.

Although it is hard to know how much can be extrapolated from that figure, if that figure holds throughout the Bureau, that could mean that there were roughly 30,000 more NSL requests issued that the FBI didn't keep track of. That is appalling — that the privacy rights of Americans would be treated so cavalierly that there are potentially tens of thousands of NSL requests out there that the FBI itself doesn't even have a record of. And it resulted in inaccurate information being reported to Congress about the use of NSLs, raising another grave concern.

What else did the inspector general find? He found that the use of NSL requests regarding U.S. persons–that is, citizens and legal permanent residents — shifted from 39 percent of all NSL requests in 2003 to 53 percent of all NSL requests in 2005, at least with respect to the NSL requests for which the FBI kept track of the U.S person status of the target. And, until 2006, the FBI did not keep track of how many NSL requests pertain to individuals who are not the subjects of authorized national security investigations. Obviously, if the FBI is using NSLs frequently to obtain information about people who are not the subjects of open investigations, that would present serious concerns about their use.

The inspector general also found that the FBI significantly underreported violations of the NSL statutes and internal guidelines from 2003 to 2005, with respect to notifying both the FBI's Office of General Counsel, or OGC, and the President's Intelligence Oversight Board, or IOB, as required by Executive order. FBI employees did report 26 violations to OGC, but the IG found examples of 22 more unreported violations in 17 investigative case files out of a sample of 77 investigative files in 4 field offices.

Some of these were significant violations, others less so. But that means that 22 percent of investigative files surveyed by the IG contained one or more violations not identified by the FBI or reported to the Intelligence Oversight Board, as required. According to the IG, "we have no reason to believe that the number of NSL-related possible IOB violations we identified in the four field offices was skewed or disproportionate to the number of possible IOB violations that exist in other offices." Thus, the IG's findings "suggest that a significant number of NSL-related possible IOB violations through the FBI have not been identified or reported by FBI personnel."

What else did the inspector general find? Perhaps the most disturbing revelation in his report, among many disturbing revelations, is that on more than 700 occasions, the FBI obtained telephone toll billing records or subscriber information from 3 telephone companies without first issuing NSLs or grand jury subpoenas. Instead, it relied on what it called "exigent letters" signed by personnel not authorized by statute to sign NSLs. Although the Electronic Communications Privacy Act does contain an emergency provision permitting the FBI to obtain certain communications records in emergencies where there is an immediate threat to a person's physical safety, many of these exigent letters were issued, admittedly, in nonemergency circumstances. Indeed, they were used as a matter of course by one headquarters unit. This violated both the statute and internal FBI policy.

The inspector general also found that FBI headquarters issued more than 300 NSLs without determining whether there was an authorized investigation in progress. Issuing an NSL without tying it an authorized investigation is a violation of the statute.

The inspector general also found that internal FBI guidance on how to properly use NSLs was woefully lacking, and that even to the degree there were FBI policies in place to govern the use of NSLs, those policies were not being followed. In 60 percent of the 77 case files that the IG examined in detail, there was some infraction of FBI guidance. Sixty percent. That is absolutely astounding.

But that is not all. Once information is obtained through an NSL, the Inspector general reported that the FBI retains it indefinitely and uploads it into databases like the "Investigative Data Warehouse," where it is retrievable by the thousands of authorized personnel, both inside and outside the FBI, who have access to these types of FBI databases. The FBI has no process for removing that information from its databases depending on the results of the investigation. So if a person's full credit report is obtained with an NSL as part of a preliminary investigation and that preliminary investigation is closed because the FBI determines that the person has done nothing wrong, it doesn't matter–the FBI can keep it anyway….

There is a very good reason that we set up investigative statutes with all sorts of safeguards, checks and balances for civil liberties: the people who work for us as investigators and police agents and supervisors are human beings. And human beings are flawed, subject to occasional lapses in judgment resulting from panic or anger or revenge or any of the other very human emotions that can carry us away down a path that we ought not go.

Having a disinterested third party review the evidence, to be certain that what is being done in the name of the public is appropriate, is not only a sound policy, but an essential safeguard for liberty.

That the Patriot Act has end-run this long-held check on the vast power of the state to surveil its population is appalling enough. But that the Bush DoJ and FBI management took that vastly increased power handed to them on a platter by Congress…and did not have even the slightest foresight to establish clear guidelines for its use and internal checks and safeguards to prevent abuse? That screams incompetence at the highest level.  And a thorough disrespect for the rule of law and the Bill of Rights and Constitution.  For shame.

Any person who has ever worked with law enforcement knows that all it takes is one rotten apple in an investigative unit to stink up the entire place. The rules and regs are there for a very, very good reason — because you cannot tinker with essential notions of liberty and the rule of law without seeing some very grave consequences on the back end of that. Good cops and prosecutors take that very seriously, because with substantial power also comes a substantial responsibility to use it with great care.

There are always safeguards built into surveillance oversight requirements for exigent circumstances.  The FISA statute, for example, has a window which allows for an emergency wiretap or other surveillance method to be established on the fly and for agents to then be able to present their affadavit and warrant well after the fact (72 hours actually, which is quite a chunk of time after the fact) to justify the surveillance to the FISA Court.  This is true for state and federal statutes in pretty much every circumstance that I can recall from my prosecuting days — because sometimes, things come up on the fly and you need to be able to immediately go into action.  But you also need to be able to fully justify why that is the case.

The Patriot Act provisions for the National Security Letters end-run this process entirely and, because it is human nature to do so, ease of getting around the paperwork by using these has become far too commonplace.  And, as there are no safeguards provided — either internally or externally to ascertain whether they are being properly used — we get what Sen. Feingold has detailed above. 

I have a feeling that today's testimony is going to be quite interesting. Here's to much more sunshine to come on this very important issue.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com