IG Report on NSL Abuse Plays Down Worst Findings, ACLU Says
Congress would do well to heavily scrutinize the full 199-page report by the DoJ inspector general on National Security Letter (NSL) procedural abuses by the FBI (WID March 12 p1), the ACLU said in a conference call Mon. The report’s executive summary fails to get at “the heart” of the most serious findings, including agency lawyers’ unease over -- but ultimate acquiescence to -- flagrant violations by FBI staff with no investigatory authority, said Caroline Fredrickson, Washington legislative dir. Considered in full, the report shows “a pattern of intentional misconduct” by FBI personnel, said Mike German, national security policy counsel: “This goes far beyond simple incompetence and mismanagement,” the impression given by the report’s summary.
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“Procurement attorneys” at the FBI were involved in creating contracts with the 3 unnamed telcos in the report for responding to “exigent letters,” said German, a former FBI special agent. Such letters are supposed to be reserved for emergency requests, but the formal commercial relationship indicates conscious violation of the NSL statute, he said. “Because there’s a money trail [the telcos] may have some other incentives” -- financial gain -- than simply helping law enforcement, German said. There’s no indication in the report of how much telcos may have been reimbursed, he added.
FBI national security lawyers deemed the relationships “inappropriate” but tried to fit them into “a more appropriate process” instead of shutting down the contracts, which were strengthened by “personal relationships” between the FBI and private companies, German said. Observers must “read between the lines” of the report to find a pattern of NSL abuse, he said: FBI staff would acquire records through exigent letters, then send a “lead” to field agents, asking them to open investigations so NSLs could be issued by the book. “They were getting some resistance, rightfully so,” from field agents wary of the procedural shortcut, and field lawyers themselves “felt intimidated by their superiors” to stifle objections to the procedure, he said. The worried lawyers decided to “help the FBI cover its tracks,” Fredrickson said.
The report suggests that FBI staff lied to their own attorneys to bypass objections about letter procedure, Fredrickson said. “Certificate letters” -- basically quasi- NSLs -- were issued to the Federal Reserve to collect information, but FBI staff assured attorneys they would be used only to discern if the Federal Reserve possessed such records, and those letters weren’t signed by authorized staff, German said.
Fredrickson compared the FBI search for terrorism connections to the game “Six Degrees of Kevin Bacon,” in which a fellow film actor is linked to Kevin Bacon through a series of connections in different movies. NSLs targeted records of people 2-3 steps removed from those with suspected terrorism ties, she said. Congress set a “very low bar to get one of these letters” with the Patriot Act reauthorization -- the existence of an open investigation -- but the FBI took illegal shortcuts anyway, German said.
The ACLU gave an update of NSL-related lawsuits it has filed to overturn gag orders against NSL recipients. The only ongoing suit to the group’s knowledge involves a “very small” ISP with an “unusual interest” in protecting subscriber records from unauthorized review, said Jameel Jaffer, deputy dir. for ACLU’s national security program: “We're not talking about AT&T or Verizon.” Through that suit, ACLU is also seeking to overturn the NSL statute’s constitutionality in that case. “This [abuse] was inevitable” under the Patriot Act reauthorization, Fredrickson said.
The only benefit to the Act’s reauthorization was a clarification that NSL recipients could consult an attorney, German said. NSL procedure in every other way has worsened since the law’s renewal, he said. The court that reviews the FBI’s request for a gag order “essentially acts as a rubber stamp,” preventing more cases from coming under public scrutiny.