Getting Terror’s
Number
National security letters help the FBI
discover conspirators before it's too late.
BY JAMES J. ROTH
As the Feb. 3 deadline approaches
for Congress to renew the USA Patriot Act, one investigative technique drawing particular scrutiny is the use of national
security letters. These letters allow the Federal Bureau of Investigation and other intelligence community agencies to obtain
certain information held by third-party record keepers without search warrants.
I am very familiar with this particular investigative tool. I served in the
FBI for 25 years, more than half of that time as the chief counsel of the New York office, the largest field office in the bureau. While there, I was responsible for
reviewing and approving all national security letters issued by the assistant director in charge of that office.
I thus know firsthand that many of the current objections to the letters reveal
a lack of knowledge and perspective. National security letters are not a dangerous threat to civil liberties, as some claim.
Rather, they are a vital law enforcement tool that is necessary in the ongoing defense against terrorism. Congress, and specifically
the Senate, should approve renewal of this tool in the form approved by the conference committee that considered the renewal
of the Patriot Act last year.
THEY’RE NOT NEW
National security letters are demands for records. They are issued only by
the FBI and other authorized intelligence community agencies. The FBI can use them only in national security investigations.
They cannot be used in traditional criminal cases. National security letters can be directed only to three types of third-party
record holders—financial institutions, wire and electronic communications service providers, and credit reporting agencies.
They can be used to obtain only limited types of records, such as financial
records, telephone toll records, and the names of telephone and Internet service subscribers. Contrary to two New York Times editorials that exemplify the confusion and
misinformation in this debate, the letters cannot be issued to obtain medical
records. The information sought is the type of information (such as phone records on whom a suspect is calling routinely)
that would identify and connect conspirators, whether in organized crime or in international terrorism networks.
National security letters are not a new tool created by the Patriot Act. Congress
first provided the FBI with the authority to use national security letters to request records from financial institutions
in the Right to Financial Privacy Act of 1978. This statutory authority was amended in 1986 to require recipients to comply
with FBI record demands pursuant to national security letters.
The Electronic Communications Privacy Act of 1986 added the authority to use
a national security letter to demand transactional and subscriber records held by wire and electronic communications service
providers, which can include libraries offering Internet access to the public.
In 1995, amendments to the Fair Credit Reporting Act authorized issuing national
security letters to credit bureaus to obtain names and addresses of financial institutions at which a consumer maintains an
account, as well as to obtain the consumer’s address and employment information. To protect against compromising disclosures
of these investigations to foreign powers and their agents, Congress has always imposed secrecy requirements on the recipients
of these requests.
THE PATRIOT ACT
After Sept. 11, Congress provided additional national security letter authority
in the Patriot Act to deal with terrorism. Congress required consumer reporting agencies, after a written request from a government
agency authorized to investigate international terrorism, to furnish a consumer report of a particular consumer, as well as
all other information in a consumer’s file.
The Patriot Act also amended requirements for issuing national security letters.
Previously, to issue a letter, the FBI had to certify that there were specific and articulable facts giving reason to believe
that the records sought pertained to a foreign power or an agent of a foreign power. This standard limited the value of the
letters, because the records sought often contained the very facts agents needed to make the connections that would allow
them to draw the conclusions necessary to make the required certification.
The Patriot Act changed this standard. Now the certification is that the information
sought is believed to be relevant to an authorized investigation to protect against international terrorism or clandestine
intelligence activities. The amendments also authorized senior FBI executives in all field offices to issue letters, and it
prohibited issuing letters solely on the basis of activities protected by the First Amendment. These changes have made national
security letters a more valuable investigative tool, which is reflected in the reported increase in their use.
NOTHING EXTRAORDINARY
To place the FBI’s authority in context, it is useful to compare national
security letters to grand jury and administrative subpoenas. These are criminal investigation tools that the FBI cannot use
in national security cases. The FBI can issue administrative subpoenas in drug, child pornography, and health-care fraud investigations.
Assistant U.S. attorneys issue grand jury subpoenas. Agency officials issue
administrative subpoenas. Both kinds of subpoenas compel any source of information to produce nonprivileged documents and
tangible objects.
Both kinds of subpoenas are issued without prior judicial approval. In fact,
there is no judicial involvement unless a recipient challenges the subpoena or refuses to comply, and the government must
go to court for enforcement. Absent a privilege, subpoenas will be enforced if there is any reasonable possibility that the
material sought will produce information relevant to the investigation.
In contrast, national security letters can be used only in national security
investigations. They are issued by senior FBI executives. They are more limited than subpoenas because they can be directed
only to a limited set of information sources for certain types of records. As with subpoenas, the records sought must be relevant
to the investigation.
A comparison with the existing subpoena authorities in criminal investigations
demonstrates that the more limited authority to compel production of records in national security cases is nothing extraordinary.
National security letters let FBI agents countering threats to national security have the similar ability to obtain information
(from a limited class of record holders) that FBI agents investigating criminal cases, including domestic terrorism, routinely
obtain through either grand jury or administrative subpoenas.
NONDISCLOSURE
Some criticize and oppose national security letters because there is currently
no explicit mechanism for challenging them and because of the nondisclosure provisions that restrict the ability of recipients
to inform the subjects of the investigation about the letters. But there has always been an implicit legal right to challenge
a national security letter, and refusal to comply with such a letter would require the government to ask a court to enforce
it.
These issues are clarified in the proposed new statute. The 2005 conference
bill reauthorizing the Patriot Act amends the law to provide explicit procedures regarding challenges to and enforcement of
national security letters and nondisclosure requirements. This bill passed the House but was filibustered in the Senate. Only
a temporary extension of the original Patriot Act passed, and now Congress is again facing the disputed issues.
The conference bill establishes a procedure whereby a recipient of a national
security letter can petition for an order modifying or setting aside the request. The bill also establishes a process for
the government to move for judicial enforcement of the letter, and it lets a court impose sanctions for contempt if a recipient
fails to comply with a court order to enforce a letter.
While the conference bill reiterates the prohibitions on disclosure, it explicitly
allows for disclosure about the letters to obtain legal assistance. It also specifies that the recipient can petition for
judicial review of the disclosure prohibitions immediately after the receipt of the letter. If the prohibition on disclosure
is upheld, the recipient may petition yearly for another judicial review of the nondisclosure requirement. All of these changes
make sense.
CONNECTING THE DOTS
After Sept. 11, the FBI was excoriated for, among other things, failing to
aggressively collect and connect the dots. In July 2001, an FBI special agent
in Phoenix sent a communication to FBI headquarters expressing concern about the number of subjects of investigative interest
attending flight schools in Arizona. The agent speculated about the possibility of a coordinated effort by Osama bin Laden
to send students to civil aviation schools in the United States.
After Sept. 11, the FBI was characterized as bumbling and bureaucratic because
it did not respond by ordering an immediate, dragnet-style, nationwide canvass of flight schools to identify Arabs and others
from the Middle East and investigate why they were taking flight lessons. Yet now, when the FBI issues national security letters
to a library to identify users of a particular computer, it is criticized as being intrusive and insensitive to privacy and
constitutional rights.
Critics speculate that the FBI may be abusing the Constitution or compiling
electronic dossiers on our reading and Internet references. Such fears are unfounded, and the proper remedy for any law enforcement
abuses is to punish the culprits severely, not to remove or severely restrict valuable investigative tools.
Moreover, none of these criticisms speak to the possible reasons for issuing
these national security letters. Perhaps the FBI is trying to identify an individual who used that library computer to communicate
with a terrorist cell. With an Internet service provider, maybe the FBI is seeking to identify a foreign agent using the provider’s
facilities to advance plans to harm the nation.
In 2004, the FBI agents took aggressive efforts in Las Vegas to identify possible
terrorists in response to threat information that placed the nation on heightened alert. Yet these efforts were criticized
by many in the same quarters who accused the FBI of failing to boldly pursue the Phoenix flight school theory before Sept.
11.
There should be no room in this important debate for uninformed speculation
and misinformation. Authority for national security letters as amended by the Patriot Act is a necessary tool that is critical
to the FBI’s ability to identify all elements of the threats to the nation from international terrorism.
The proposed new statute, as shown by the conference report, contains reasonable
provisions for the protection of civil liberties. Critics who want more stringent requirements need to explain why international
terrorists deserve greater procedural protections than those given to organized crime figures. And why do foreign agents need
more protections from investigation than child pornographers or health care fraudsters?
These critics seek to impose overly stringent standards that are not required
by the Constitution and are not necessary to protect constitutional rights. If they succeed, it will impede the FBI’s
ability to protect the nation from future attacks.
In the debate over the reauthorization of the Patriot Act, those seeking to
reinstitute unnecessary restrictions or, in the name of civil liberties, enact restrictions that would provide terrorists
sanctuary in libraries need to remind themselves of the horror of Sept. 11.
James J. Roth is a retired FBI special agent and member of
the information committee of the Society of Former Special Agents of the FBI. He is also a member of the adjunct faculty at
Fordham Law School in New York.
© 2006 ALM Properties Inc. All rights reserved. This article is reprinted
with permission from Legal Times (1-800-933-4317 • LTsubscribe@alm.com • www.legaltimes.com).
James J. Roth is a Founding Director of the Respect for Law Alliance,Inc.,
a 501(c) (3) Not-for-Profit Civic Corporation and a member of its Committee on Civil and Criminal Justice.
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