Balkinization  

Tuesday, May 16, 2006

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

JB

From ABC News:
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.


National security letters are usually issued by FBI field supervisors or other lower level bureaucrats. They do not require approval by a judge, grand jury, or other independent agency. Thus, they provide none of the checks and balances that we expect from the warrant requirement (and indeed, today's warrant requirement is fairly weak at this task in any case).

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.


Comments:

For phone records, a National Security Letter is authorized under 18 USC 2709, which requires a simple declaration by the FBI that the records sought "are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States."

I think the question of whether a leak investigation fits that description is eminently arguable.

Unfortunately, no one except the telecom being served with the letter has any standing to challenge it. (That small sliver of due process was added in the recent PATRIOT Act renewal.) The subject of the records search is never told.

BTW, the way I read the ABC News posting above, the authors are merely speculating that a National Security Letter was the mechanism used to obtain the journalists' phone records.
 

Yes, when it comes to civil rights violations, if you don't have standing sit down (at least as far as court action is concerned). But the First Amendment's speech and press clauses (especially via the blogs) will permit people to stand and yell that the Bush Administration is screwing with our civil rights. That's not falsely yelling fire in a crowded theater. Let's continue to hear it.
 

WaPo article, damn; what's the difference now between the FBI and the KGB?

We need to repeal these NSL's and all such and send them to the nearest District Court (uh, they're all over the country now) with a probable cause requirement. Who thought Terry and the like would propel us so easily, when mixed with three explosions, into the land of nothing is unreasonable? OK, I just found an answer to this question in my man William O. Douglas' dissent in Terry:

'The infringement on personal liberty of any "seizure" of a person can only be "reasonable" under the Fourth Amendment if we require the police to possess "probable cause" before they seize him.
. . . .
To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.'
 

A few things:

There is no reported "acknowledgement" by the FBI of anything. There is a blog post reporting a nondenial, which isn't at all the same thing; the blog report also references an acknowledgement by a "senior federal official", whatever that means.

There is absolutely no suggestion that any member of the press is being investigated for anything. To the contrary, the report makes it clear that the investigations are targeted at potential violations of the law by federal employees. Any other suggestion is entirely unsupported on the evidence available.

Looking again at Bush's statement, why on earth would anyone intelligent listener believe that no other electronic surveillance efforts were ongoing? Would someone believe that, say, (counter)espionage efforts directed at China were no longer on-going? I would think that a remarkably foolish reading, no matter how many times asserted.
 

It is interesting how Thomas again speaks of a "blog post" re comments by "Brian Ross [] ABC News' Chief Investigative Correspondent" ... "blog post" suggests a bit less professional to me, doesn't it?

Also, why this spin on "acknowledgment?" One reads the story and it spells out what the FBI does by sources within.

Thomas basically suggests the chief investigative correspondent of ABC is guilty of blatant wordplay and submits to a byline to a "blog post" with a title that speaks of something that actually was not do.

Such unethical conduct should be reported to Mr Ross' employer, I think. As to what we are supposed to believe, darn, if the President says whenever there is a search that it means a warrant, silly me thinks things of this nature including members of the press would require a warrant.

It surely seems like that was the message being sent. We are supposed to be to blamed for being overly picky in comprehending what the President of the U.S. says? Thomas must not trust the guy very much. I thought he was a clear talker, so goes the rep., myself.
 

Thomas,

One day it’s an vital piece of evidence that exposes a commentator’s erroneous look at past events and the next day -- once the same commentator has duly updated his position -- its just, you know, a *blog post* to be taken with a grain of salt.

Fallacy + Inconsistency = Intellectual Dishonesty
 

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