FBI: We're Using National Security Letters to "Backtrack" Reporters' Calls

JB

The FBI acknowledged late Monday that it is increasingly seeking reporters' phone records in leak investigations.

"It used to be very hard and complicated to do this, but it no longer is in the Bush administration," said a senior federal official. . . . The official said our [ABC's] blotter item was wrong to suggest that ABC News phone calls were being "tracked."

"Think of it more as backtracking," said a senior federal official.

But FBI officials did not deny that phone records of ABC News, the New York Times and the Washington Post had been sought as part of a investigation of leaks at the CIA. . . .

Officials say the FBI makes extensive use of a new provision of the Patriot Act which allows agents to seek information with what are called National Security Letters (NSL).

The NSLs are a version of an administrative subpoena and are not signed by a judge. Under the law, a phone company receiving a NSL for phone records must provide them and may not divulge to the customer that the records have been given to the government.

For those of you who might be interested, here's what a National Security Letter looks like. (And here's an interesting Washington Post story from last November on how the FBI has used National Security Letters for more and more purposes). Note the requirement of secrecy to ensure than the parties investigated (in this case the members of the press) have no idea that their records have been looked at by the FBI. This requirement of secrecy makes some sense if the person investigated is a terrorist suspect; it makes much less sense if the person being investigated is a reporter or a member of the public whom the FBI does not actually believe is associated with terrorism or espionage.

This last point is particularly relevant because the government's ability to issue national security letters was greatly enhanced by the Patriot Act, as discussed here. Most important for present purposes, the Patriot Act changed the old rule that the FBI could use National Security letters only to gain records concerning suspected terrorists or persons suspected of engaging in espionage. The Patriot Act allowed the FBI to issue National Security Letters-- which require virtually no independent supervision-- as long as the FBI officer believes that the information could be relevant to an investigation related to terrorism or espionage. Since there is almost no oversight over National Security Letters, and since the FBI works quite hard to avoid disclosing what it has done using National Security Letters and why it has done it, the practice is easily subject to abuse and overreaching, relying largely on the good faith of lower level agents and their professional capacity to restrain themselves. Indeed, the National Security Letter offers so few restraints on executive overreaching that it is not significantly different from simply dispensing with a warrant requirement altogether.

Once again, compare the FBI's own admissions with President Bush's previous statement. While the President assured us that the NSA was only looking into people with contacts to Al Qaeda and other terrorist organizations, he said nothing about the FBI, and the FBI admits that its use of phone call records is not limited to those suspects, but is aimed at members of the press.