NEITHER SNOW NOR RAIN, ET CETERA

By William Fisher

We’re all familiar with the U.S. Postal Service’s unofficial motto: “Neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds." But there are times when the completion of their appointed rounds might bring bad news. Very bad news.

The bad news might come in the form of a National Security Letter (NSL). NSLs are letters issued by the government to a particular entity or organization, compelling them to turn over various records and data pertaining to individuals. They require no probable cause or judicial oversight. They also contain a gag order that bars the recipient of the letter from disclosing that the letter was ever issued.

This form of administrative subpoena is being used by the FBI and reportedly by other U.S. Government Agencies including the Central Intelligence Agency (CIA), the Department of Defense (DOD), and the Department of Homeland Security (DHS).

And one of the nation’s most respected counterterrorism experts, Mike German of the American Civil Liberties Union (ACLU), believes Congress will soon take action to rein in what he calls the “unchecked power” of the FBI and others to spy on Americans without court approval – and then forbid them from publicly protesting the violation of their civil liberties.

German’s charges come on the heels of a report last month by the Department of Justice Inspector General (IG). The report concluded that the FBI was continuing to issue NSLs unlawfully.

The IG’s report also expressed skepticism on the effectiveness of reforms put in place by the FBI following a 2006 IG report that found widespread abuses in the agency’s use of NSLs. But others are less charitable.

Michael Ratner, president of the Center for Constitutional Rights (CCR), a civil liberties advocacy group, told us, “DOJ’s reforms have clearly not fixed the problem; despite these fixes, the misuse of NSLs continues. It is far past the time when Congress ought to mandate judicial approval of such a significant invasion of privacy. Without such approval any claimed reforms have little meaning.”

The USA Patriot Act, passed in 2001, greatly expanded the use of NSLs, allowing their use in scrutiny of U.S. residents, visitors, or U.S. citizens who are not suspects in any criminal investigation. The Patriot Act reauthorization statutes passed by Congress in early 2006 added specific penalties for non-compliance or disclosure.

In his most recent report, the IG, Glenn A. Fine, reported that the FBI twice ignored the constitutional objections of the special court established under the Foreign Intelligence Surveillance Act (FISA) to obtain private records for national security probes.

German, a 16-year FBI veteran, resigned as a Special Agent in 2004 to make Congress and the public aware of the continuing deficiencies in FBI counterterrorism operations after the implementation of the 9/11 Commission’s reforms. He told us that following passage of the USA Patriot Act in 2001, FBI operations have been conducted “with unchecked power, hampered by mismanagement in its counter-terrorism unit, and facilitated by lack of Congressional oversight.” The FBI, he added, “is obtaining personal and business records they’re not entitled to.”

He also highlighted the relationship of NSLs to the current debate over electronic surveillance by calling attention to so-called “third party error.” This occurs when the government targets a particular telephone number or email address, and then not only continues to tap all who call into that target, but the calls and emails sent to and from the addresses of these “secondary targets,” and calls to and from these secondary targets, creating groups of tertiary targets.

He also told us that there is little evidence that the FBI is systematically purging its databases of telephone or email records unlawfully or inadvertently obtained during these electronic surveillance operations.

The IG made its disclosure in reviews of the FBI's powers to obtain information such as phone records or credit-card data in terrorism probes or other security investigations.

"We questioned the appropriateness of the FBI's actions" in disregarding the court, the IG said.

The IG’s latest review follows a report last March that concluded that the FBI had misused its powers between 2003 and 2006 to obtain business records with private data. He said it filed improper requests for records and collected e-mail data without proper authorization. Fine's 2007 report found 48 violations of law or rules in the bureau's use of national security letters from 2003 to 2005.

Fine’s 2007 report concluded that the FBI sought to cover its acquisition of phone records on thousands of Americans from 2003 to 2005 by issuing 11 improper, retroactive "blanket" administrative subpoenas in 2006 to three phone companies that are under contract to the FBI.

Top officials at the FBI's counter-terrorism division signed the blanket subpoenas "retroactively to justify the FBI's acquisition of data through the exigent letters or other informal requests," Fine found.

While acknowledging that the FBI took significant steps to correct the problems after his report last year, the IG added that implementation of the steps was yet complete, so "it is too early to determine whether these measures will eliminate fully the problems."

The IG’s 2008 report came as Congress continued to debate legislation governing federal powers to conduct electronic surveillance of foreign terrorism targets. A principal bone of contention in that debate is whether telecommunications companies – whose technology and customer records are key to the government’s ability to obtain and track phone calls and email traffic to and from specific numbers – should receive “retroactive immunity” from prosecution for assisting the government during a time when the Bush Administration had no Congressionally-mandated authority to do so.

The Administration contends the telecommunications companies were simply doing their “patriotic duty” to help their government following the terrorist attacks of September 11, 2001. Critics of that position say the government’s action was unlawful because it circumvented the 1978 FISA law, and claim the warrantless wiretaps began long before 9/11.

The House of Representatives last week passed legislation denying retroactive immunity, while the Senate continues to debate two bills, one granting such immunity, the other denying it. President George W. Bush has said he would veto any legislation that failed to grant immunity.

He has also said the absence of immunity would have a chilling effect on the willingness of telecom companies to cooperate with the government because they would then be vulnerable to expensive and time-consuming court challenges. The president, the Director of National Intelligence, Admiral Mike McConnell, and the chiefs of the CIA, the National Security Agency (NSA), and other U.S. intelligence organizations, have claimed that failure of resolve the immunity issue has caused the U.S. to lose valuable intelligence.

The IG’s most recent report noted two occasions in which he FISA court rejected FBI requests to obtain records. The court was concerned that doing so could interfere with rights protected by the First Amendment of the Constitution which guarantees freedom of speech, religion and association and the right to petition the government.

But following the FISA court’s rejections, the FBI used separate authority to get the information without the court's approval, relying on NSLs, even though that authority also had First Amendment guidelines.

The NSL issue has drawn attention both from Congress and from the civil liberties community.

Vermont Democrat Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, said the IG’s report "outlines more abuses and what appears to be the improper use of National Security Letters for years in a systemic failure throughout the FBI ...Legislative action may be necessary to correct these abuses."

Legislation to correct the abuse of the National Security Letter authorities has been introduced in the House of Representatives by Rep. Jerrold Nadler, a New York Democrat, and in the Senate by Sen. Russ Feingold, Democrat from Wisconsin.

And the CCR’s Ratner told us, “We have never believed that National Security Letters should be issued without court approval and find it unacceptable that those targeted by such letters are muzzled. The poisonous fruit of the current practice is what could have been expected: FBI agents and other secret police running around without any suspicion of criminal activity grabbing not only the records of so-called targets but of all persons who have had any communications with the ‘targets’.”

If this scary saga has a message, it’s that you might want to think twice before answering your phone – even if it’s at 3 a.m. – or opening your mailbox.