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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 joined the ACLU in 2006.

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.

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William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now (more...)
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