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Is there a lawyer in the house? The question should not be difficult to answer inside the Department of Justice. A recent report by the department’s inspector general suggests otherwise, however. The report reveals a pattern of misuse by the FBI of national security letters, one of the investigative tools given an expanded reach by the USA Patriot Act in 2001. Even more troubling, the use and misuse of NSLs apparently occurred with little or no involvement from Justice Department attorneys, presumably the nation’s leading legal experts on anti-terrorism matters. Highlighting the need for such legal expertise, a more recent internal audit by the FBI itself reveals that its problems with the use of NSLs are widespread. The inspector general’s report, mandated in the 2006 reauthorization of the Patriot Act, details the FBI’s repeated errors in drafting, issuing, tracking, and monitoring responses to NSLs. Among the most disturbing findings in the IG report are that the FBI ignored or did not know basic legal limits and procedures, as shown by its issuing NSLs for information outside the statutory authorization; exploited the unfettered discretion in the field offices to use NSLs; failed to comply with both statutory requirements and internal FBI procedures; and undermined oversight efforts by keeping incomplete and inaccurate records about NSLs. In response, the FBI issued an internal memorandum on June 1 entitled “Comprehensive Guidance on NSL’s.” It is remarkable that it took five years after the enactment of the Patriot Act to issue such guidance, but what is even more remarkable is what the guidance still does not provide. The memo, though a step in the right direction, continues the “trust us” approach and fails to suggest seeking approval for NSLs from outside the FBI. The FBI seems determined to play the role of the stereotypical male driver who has circled the same block four times but still stubbornly refuses to ask anyone for directions. Worse yet, the FBI is ignoring the available help from the Justice Department’s own cadre of experts: the federal prosecutors from 93 U.S. attorneys’ offices and from the National Security Law Division. How many wrong turns must the FBI make — and how many new revelations of NSL abuses must be documented — before a necessary outside check ensures that each NSL is properly handled? The documented findings of legal and internal failures require a legislative remedy. Common-sense checks must be imposed on the FBI to allow for its continued use of NSLs while protecting against further abuse. POWERFUL TOOLS NSLs are powerful administrative subpoenas that the FBI uses to demand specific types of records in investigations involving international terrorism or clandestine intelligence activities. The records may relate not only to the individual target of an investigation but also to any matter or person relevant to that investigation. Unlike search warrants, wiretaps, or pen registers, NSLs require no judicial approval at any point — they are a purely executive branch tool. Furthermore, unlike grand jury subpoenas, NSLs may be issued by the FBI without any involvement or review by a prosecutor. Moreover, unlike grand jury subpoenas, NSLs generally require secrecy on the part of the recipient, and the responsive records produced are not legally protected from disclosure or further dissemination or use. The FBI has the authority to issue NSLs for the following types of records, among others: • Financial records, including bank records for checking and savings accounts, transactions with credit card companies, stock brokerage records, car dealership records, safe deposit box information, casino records, and even records from pawnbrokers.

• Electronic communication records (including toll billing records, which reflect the phone numbers called and calls received) and e-mail transactional information. • Credit history information, including full credit reports.

The Patriot Act of 2001, and a subsequent, little-noticed “catchall” intelligence measure passed in 2004, expanded the scope of NSLs to their current breadth. Although the Bush administration sought even broader power, those acts expanded the use of NSLs significantly, by removing the requirement of headquarters approval, eliminating the legal requirement that NSLs relate to foreign agents, and adding to the types of records subject to demand by an NSL. Two dramatic shifts in the use of NSLs have surfaced since these changes. First, the sheer volume of NSLs has dramatically increased. The IG report documented an almost sevenfold jump in NSL requests from 2000 to 2004. Second, NSL requests are increasingly being used to investigate Americans. In 2003, the FBI reported to Congress that 39 percent of NSL requests related to U.S. persons. By 2005, however, U.S. persons accounted for 53 percent of the FBI’s NSL requests. That year was the second straight year that the majority of NSL requests applied to Americans. WHAT THE IG FOUND The IG report chronicles a wide array of errors and improprieties in the FBI’s use of NSLs. The first striking IG finding is the scale of the problem. The IG found NSL improprieties in 22 percent of the files reviewed, far more than the number of improper uses that the FBI had previously found itself as part of its legal duty to report to the Intelligence Oversight Board. A subsequent audit by the FBI of a larger NSL sampling than the IG’s uncovered more than 1,000 possible violations and confirmed the scope of the problem. The second disturbing finding by the IG was that the FBI ignored both the law and its own rules in many instances. The IG found improprieties that included both “circumvent[ing] the requirements of national security letter authorities” and acting “contrary to the Attorney General’s [National Security Investigation] Guidelines and Internal FBI policy.” The FBI failed to comply with even the lower standards for the issuance of NSLs imposed after the Patriot Act. At that point, all that was required of the FBI was that the NSL be relevant to a national security investigative file. The IG report found, however, that literally hundreds of NSL requests related to no true terrorism file but were issued based on fabricated “control files,” in effect dummy files set up for no other purpose than to justify an NSL. The result could potentially be to render the First Amendment and supervisory review requirements of the Patriot Act a fiction. Next, the IG found that the FBI sent hundreds of false “exigent letters,” letters claiming that a recipient will soon receive a grand jury subpoena but must provide records to the FBI immediately based on emergency circumstances. The IG found several problems with these letters. First, the letters are simply false, because often no grand jury subpoena had been requested, and no follow-up NSL was requested. Second, no grand jury subpoena could have been requested in many instances because there was no related grand jury investigation pending or U.S. attorney file even open. Third, many of the letters related to requests where simply no emergency was present. Finally, the IG found not only that the FBI had implemented almost no internal control procedures for issuing NSLs but also that its flawed record keeping made it almost impossible to check their use. The gaps in controls started at the most basic level, with the IG remarkably unable to find signed copies of many of the NSLs, a critical starting point for accountability, the tracking of responses, and legally required oversight reports. A REFORM PROPOSAL The FBI and Department of Justice have responded predictably to the IG report and the FBI audit. They have emphasized the little that is positive in the report and vowed to institute internal reforms to fix what went wrong. The positive reforms reflected in the new FBI guidelines include promising to implement a mandatory “Virtual Academy Course” to explain the proper handling of NSLs to FBI agents, barring uploading of NSL-derived information without review for incorrect production, and prohibiting the use of “exigent letters.” Although a step in the right direction, this response is simply inadequate given the scope of the problem. The IG report cries out for common-sense checks and balances on the FBI’s authority, both before and after NSLs are issued. Although some might advocate for eliminating NSLs altogether, the legitimate need to use NSLs in authorized investigations militates in favor of an incremental approach that enhances external checks to restore confidence in the process and bolsters privacy protections. First, Congress should require that NSLs be issued only after the approval of a Justice Department attorney, akin to the thousands of grand jury subpoenas issued each year after prosecutorial review and approval. Approval outside the FBI is especially necessary because the IG report found that the FBI’s own lawyers “believe that they cannot exercise their independent professional judgment on the use of NSL authorities because they are reluctant to second guess the operational judgments of senior field office officials in their chain of command.” The FBI and Justice Department would benefit from such a collaborative system. For decades, the federal model of agent and attorney collaboration has served both the FBI and the department well in effectively investigating important and time-sensitive cases. In the foreign intelligence and terrorism arenas, however, one of the key failings prior to Sept. 11 was the inability of the department and the FBI to share information. A major reform in the Patriot Act was to tear down the “wall” that separated intelligence investigators from the immense legal and practical expertise in the rest of the department. It is disappointing that, with the legal wall torn asunder for more than five years, the cultural blockade that surrounds the Hoover Building still prevents the FBI from taking full advantage of the legal expertise in its own front yard. Congress can and should impose a reasonable requirement of internal Justice Department attorney approval, both to check the FBI and to force better and more effective collaboration. Second, to improve oversight of the NSL process, Congress should require the inspector general to establish a mechanism for furnishing regularly updated reports about NSLs to Congress on a nonclassified basis. The IG report itself, which Congress mandated in the second Patriot Act, is a shining example of the power of effective oversight. Furthermore, the Justice Department should be required to set up an internal process, using the IG’s office, through which aggrieved individuals may report NSL misuses. The office should then regularly summarize for Congress those complaints and any significant findings. In this way, Congress and the Justice Department can ensure that responsible and effective oversight of the FBI’s use of NSLs continues after the story fades from the headlines. Third, the FBI’s poor management of the data collected through NSLs merits enacting additional protections governing this sensitive personal information. The current model for the secrecy of grand jury material under Federal Rule of Criminal Procedure 6(e) should serve as a guide in enacting common-sense rules governing this material. Certainly it is one that the Justice Department has implemented successfully in other highly sensitive areas of data collection. After the Sept. 11 terrorist attacks, Congress granted the FBI additional powers in national security investigations. We now know these powers have been used increasingly on Americans, and often improperly. The FBI’s improper use of NSLs requires more than an apology. It requires reform.
Steven M. Dettelbach is a partner in the Washington, D.C., office of Baker & Hostetler, where he focuses on white-collar crime and policy. Beryl A. Howell is the executive managing director and general counsel in Washington, D.C., at Stroz Friedberg, a consulting and technical services firm, and a commissioner on the U.S. Sentencing Commission. She is a former general counsel for the Senate Judiciary Committee, where she led the Senate staff negotiations in 2001 on the Patriot Act. The views expressed are solely those of the authors.

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