The FBI and NSL's - Trouble Looms on the CounterTerroism Horizon

There is a partisan storm on the horizon in response to the Dept. of Justice's Inspector General's report on FBI usage of National Security Letters, otherwise known as NSL's. And it appears to be both out of proportion to the scope of the problem and destined to lead to changes that will only further handcuff our counterterrorism efforts.

Prior to 9-11, our counterintelligence system was dysfunctional for a myriad of reasons. For example, Chinese walls prevented sharing of information, and there was difficulty in getting timely FISA warrants to examine potential terrorist leads such as to examine the 20th hijacker, Zacharias Moussaoui's, hard drive. Those are just two examples of many systemic problems. In the aftermath of 9-11, and in response to the systemic problems, the government implemented the Patriot Act, one provision of which -- Section 505 -- deals with NSL's.

The NSL is a unique administrative subpoena that was in existence before 9-11, but which was expanded in scope and made easier to secure by the Patriot Act. NSL's are unusual in two respects -- one, they do not require judicial overview to be issued. They are authorized by the Special Agent in charge of a FBI Bureau field office. Two, they only allow access to limited information. NSL's allow FBI agents to access financial data, internet usage data, telephone data, and credit report information. An NSL does not allow for eavesdropping or a physical search. Those are still the sole province of a warrant that must be authorized by a judge. Further, an NSL can only be approved if it is certified in the request that the information sought is:

"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 . . . "

The FBI has relied heavily upon NSL's in its terrorism investigations. Between 2003 and 2005, in excess of 140,000 NSLs' were issued. The Inspector General, in his report, asked some 100 agents about their reliance upon NSL's and how they viewed their usefulness. The IG recorded that most FBI agents described the NSL as "indispensable" to their investigations. They further described the uses of the NSL as being:

to gather enough information to support a warrant for search or surveillance under the Foreign Intelligence Surveillance Act (FISA)

assess communications and financial links between the target and others

collect information to fully develop national security investigations or to close out such investigations as unwarranted

develop leads for other terrorism related agencies

corroborate information derived from other investigative techniques

The Inspector General's report goes on to state that it found many administrative and bookkeeping problems with how the FBI is issuing and then storing NSL's. The IG report referred to finding several "improper or illegal" misuses of NSL's, but as it indicates in a footnote, that is a term of art, and the IG found no criminal misconduct on the part of any FBI agent. Nor did the IG find that any of the inconsistencies caused any disruption to the lives of any individuals or the operations of any businesses.

Director of the FBI Mueller has taken responsiblity for his agency's shortcoming. Further, the FBI has issued a public statement on the matter here.

So, to put this in perspective, what we have is a vital investigative tool that is central to the FBI's investigation of terrorism, that is designed to find information limited in scope, and that has been used for proper investigative goals. We also have a bookkeeping and administrative system in the FBI that needs to be cleaned up and it needs to be done immediately. Lastly, documentation surrounding NSL's needs to be enforced. If necessary, a few heads should roll. Fair enough.

But if you listened to the crowing from the liberals today -- and unfortunately led by Arlen Specter -- one would be led to believe that the FBI is completely out of control and mining private data for a conspiracy worthy of Fox Maulder's imagination. They were falling all over themselves in the rush to get to a camera and take unbelievably outlandish shots while not one acknowledges any beneficial use of the NSL as a very timely and flexible investigative tool at the heart of the war against terrorism. See here and here.

From the New York Times:

“It is time to place meaningful checks on the Bush administration’s ability to misuse the Patriot Act by overusing national security letters,” said Senator Harry Reid."

Senator Patrick J. Leahy, the Vermont Democrat who heads the Senate Judiciary Committee, said, “National security letters are a powerful tool, and when they are misused, they can do great harm to innocent people.” Mr. Leahy said his panel would hold extensive hearings on the inspector general’s findings.

In the House, Representative Silvestre Reyes, the Texas Democrat who heads the Intelligence Committee, said that the inspector general had painted “a highly troubling picture of mismanagement” and that it was up to Congress to “conduct vigorous oversight of this situation.”

Among the Republicans voicing anger was Senator Charles Grassley of Iowa, a member of the Senate Judiciary Committee. “When it comes to national security, sloppiness should be reserved for the hog lot, not the F.B.I.,” said Mr. Grassley.

And there was this in the Washington Post

Senate Majority Whip Dick Durbin, who had been pressing for a review of national security letters since 2005, said the report "confirms the American people's worst fears about the Patriot Act."

"It appears that the administration has used these powers without even the most basic regard for privacy of innocent Americans," Durbin said in a statement. He called for "reasonable reforms" to the Patriot Act that have been proposed, but not acted on, in the past. "We should give the government all the tools it needs to fight terrorism," Durbin said. "However, I continue to believe that the Patriot Act must include reasonable checks and balances to protect the constitutional rights of all Americans."

Sen. Charles E. Schumer, like Specter a member of the Senate Judiciary Committee, said the problems identified by the inspector general were a "profoundly disturbing breach of public trust." Schumer also promised that the panel would hold hearings and then likely consider legislation to rein in portions of the Patriot Act.

"This goes above and beyond almost everything they've done already," Schumer said of the allegations in the report. "It shows just how this administration has no respect for checks and balances."
. . . .
Anthony Romero, executive director of the American Civil Liberties Union, said the report shows the need for an independent investigation of the Justice Department's anti-terrorism tactics.

"It confirms our greatest suspicions about the abuse of Patriot Act powers and, specifically, national security letter powers," Romero said. "The report is really only a description of the tip of the iceberg."

Do not underestimate the potential for harm to our nation's security if the Democrats are able to abolish or impose vast new restrictions on the use of NSL's. And do not underestimate the partisan nature of the Democrats who seek power over all and are quite opportunistic and cynical enough to use any means at hand for that purpose. Let's not forget Harry Reid's finest hour.