Saturday, November 05, 2005

The FBI's Secret Scrutiny

In Hunt for Terrorists, Bureau Examines Records of Ordinary Americans

By Barton Gellman
Washington Post Staff Writer
Sunday, November 6, 2005; A01

The FBI came calling in Windsor, Conn., this summer with a document marked for delivery by hand. On Matianuk Avenue, across from the tennis courts, two special agents found their man. They gave George Christian the letter, which warned him to tell no one, ever, what it said.

Under the shield and stars of the FBI crest, the letter directed Christian to surrender "all subscriber information, billing information and access logs of any person" who used a specific computer at a library branch some distance away. Christian, who manages digital records for three dozen Connecticut libraries, said in an affidavit that he configures his system for privacy. But the vendors of the software he operates said their databases can reveal the Web sites that visitors browse, the e-mail accounts they open and the books they borrow.

Christian refused to hand over those records, and his employer, Library Connection Inc., filed suit for the right to protest the FBI demand in public. The Washington Post established their identities -- still under seal in the U.S. Court of Appeals for the 2nd Circuit -- by comparing unsealed portions of the file with public records and information gleaned from people who had no knowledge of the FBI demand.

The Connecticut case affords a rare glimpse of an exponentially growing practice of domestic surveillance under the USA Patriot Act, which marked its fourth anniversary on Oct. 26. "National security letters," created in the 1970s for espionage and terrorism investigations, originated as narrow exceptions in consumer privacy law, enabling the FBI to review in secret the customer records of suspected foreign agents. The Patriot Act, and Bush administration guidelines for its use, transformed those letters by permitting clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies.

The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters -- one of which can be used to sweep up the records of many people -- are extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans.

Issued by FBI field supervisors, national security letters do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress. The executive branch maintains only statistics, which are incomplete and confined to classified reports. The Bush administration defeated legislation and a lawsuit to require a public accounting, and has offered no example in which the use of a national security letter helped disrupt a terrorist plot.

The burgeoning use of national security letters coincides with an unannounced decision to deposit all the information they yield into government data banks -- and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for "state, local and tribal" governments and for "appropriate private sector entities," which are not defined.

National security letters offer a case study of the impact of the Patriot Act outside the spotlight of political debate. Drafted in haste after the Sept. 11, 2001, attacks, the law's 132 pages wrought scores of changes in the landscape of intelligence and law enforcement. Many received far more attention than the amendments to a seemingly pedestrian power to review "transactional records." But few if any other provisions touch as many ordinary Americans without their knowledge.

Senior FBI officials acknowledged in interviews that the proliferation of national security letters results primarily from the bureau's new authority to collect intimate facts about people who are not suspected of any wrongdoing. Criticized for failure to detect the Sept. 11 plot, the bureau now casts a much wider net, using national security letters to generate leads as well as to pursue them. Casual or unwitting contact with a suspect -- a single telephone call, for example -- may attract the attention of investigators and subject a person to scrutiny about which he never learns.

A national security letter cannot be used to authorize eavesdropping or to read the contents of e-mail. But it does permit investigators to trace revealing paths through the private affairs of a modern digital citizen. The records it yields describe where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.

As it wrote the Patriot Act four years ago, Congress bought time and leverage for oversight by placing an expiration date on 16 provisions. The changes involving national security letters were not among them. In fact, as the Dec. 31 deadline approaches and Congress prepares to renew or make permanent the expiring provisions, House and Senate conferees are poised again to amplify the FBI's power to compel the secret surrender of private records.

The House and Senate have voted to make noncompliance with a national security letter a criminal offense. The House would also impose a prison term for breach of secrecy.

Like many Patriot Act provisions, the ones involving national security letters have been debated in largely abstract terms. The Justice Department has offered Congress no concrete information, even in classified form, save for a partial count of the number of letters delivered. The statistics do not cover all forms of national security letters or all U.S. agencies making use of them.

"The beef with the NSLs is that they don't have even a pretense of judicial or impartial scrutiny," said former representative Robert L. Barr Jr. (Ga.), who finds himself allied with the American Civil Liberties Union after a career as prosecutor, CIA analyst and conservative GOP stalwart. "There's no checks and balances whatever on them. It is simply some bureaucrat's decision that they want information, and they can basically just go and get it."

'A Routine Tool'

Career investigators and Bush administration officials emphasized, in congressional testimony and interviews for this story, that national security letters are for hunting terrorists, not fishing through the private lives of the innocent. The distinction is not as clear in practice.

Under the old legal test, the FBI had to have "specific and articulable" reasons to believe the records it gathered in secret belonged to a terrorist or a spy. Now the bureau needs only to certify that the records are "sought for" or "relevant to" an investigation "to protect against international terrorism or clandestine intelligence activities."

That standard enables investigators to look for conspirators by sifting the records of nearly anyone who crosses a suspect's path.

"If you have a list of, say, 20 telephone numbers that have come up . . on a bad guy's telephone," said Valerie E. Caproni, the FBI's general counsel, "you want to find out who he's in contact with." Investigators will say, " 'Okay, phone company, give us subscriber information and toll records on these 20 telephone numbers,' and that can easily be 100."

Bush administration officials compare national security letters to grand jury subpoenas, which are also based on "relevance" to an inquiry. There are differences. Grand juries tend to have a narrower focus because they investigate past conduct, not the speculative threat of unknown future attacks. Recipients of grand jury subpoenas are generally free to discuss the subpoenas publicly. And there are strict limits on sharing grand jury information with government agencies.

Since the Patriot Act, the FBI has dispersed the authority to sign national security letters to more than five dozen supervisors -- the special agents in charge of field offices, the deputies in New York, Los Angeles and Washington, and a few senior headquarters officials. FBI rules established after the Patriot Act allow the letters to be issued long before a case is judged substantial enough for a "full field investigation." Agents commonly use the letters now in "preliminary investigations" and in the "threat assessments" that precede a decision whether to launch an investigation.

"Congress has given us this tool to obtain basic telephone data, basic banking data, basic credit reports," said Caproni, who is among the officials with signature authority. "The fact that a national security letter is a routine tool used, that doesn't bother me."

If agents had to wait for grounds to suspect a person of ill intent, said Joseph Billy Jr., the FBI's deputy assistant director for counterterrorism, they would already know what they want to find out with a national security letter. "It's all chicken and egg," he said. "We're trying to determine if someone warrants scrutiny or doesn't."

Billy said he understands that "merely being in a government or FBI database . . gives everybody, you know, neck hair standing up." Innocent Americans, he said, "should take comfort at least knowing that it is done under a great deal of investigative care, oversight, within the parameters of the law."

He added: "That's not going to satisfy a majority of people, but . . I've had people say, you know, 'Hey, I don't care, I've done nothing to be concerned about. You can have me in your files and that's that.' Some people take that approach."

'Don't Go Overboard'

In Room 7975 of the J. Edgar Hoover Building, around two corners from the director's suite, the chief of the FBI's national security law unit sat down at his keyboard about a month after the Patriot Act became law. Michael J. Woods had helped devise the FBI wish list for surveillance powers. Now he offered a caution.

"NSLs are powerful investigative tools, in that they can compel the production of substantial amounts of relevant information," he wrote in a Nov. 28, 2001, "electronic communication" to the FBI's 56 field offices. "However, they must be used judiciously." Standing guidelines, he wrote, "require that the FBI accomplish its investigations through the 'least intrusive' means. . . The greater availability of NSLs does not mean that they should be used in every case."

Woods, who left government service in 2002, added a practical consideration. Legislators granted the new authority and could as easily take it back. When making that decision, he wrote, "Congress certainly will examine the manner in which the FBI exercised it."

Looking back last month, Woods was struck by how starkly he misjudged the climate. The FBI disregarded his warning, and no one noticed.

"This is not something that should be automatically done because it's easy," he said. "We need to be sure . . . we don't go overboard."

One thing Woods did not anticipate was then-Attorney General John D. Ashcroft's revision of Justice Department guidelines. On May 30, 2002, and Oct. 31, 2003, Ashcroft rewrote the playbooks for investigations of terrorist crimes and national security threats. He gave overriding priority to preventing attacks by any means available.

Ashcroft remained bound by Executive Order 12333, which requires the use of the "least intrusive means" in domestic intelligence investigations. But his new interpretation came close to upending the mandate. Three times in the new guidelines, Ashcroft wrote that the FBI "should consider . . . less intrusive means" but "should not hesitate to use any lawful techniques . . . even if intrusive" when investigators believe them to be more timely. "This point," he added, "is to be particularly observed in investigations relating to terrorist activities."

'Why Do You Want to Know?'

As the Justice Department prepared congressional testimony this year, FBI headquarters searched for examples that would show how expanded surveillance powers made a difference. Michael Mason, who runs the Washington field office and has the rank of assistant FBI director, found no ready answer.

"I'd love to have a made-for-Hollywood story, but I don't have one," Mason said. "I am not even sure such an example exists."

What national security letters give his agents, Mason said, is speed.

"I have 675 terrorism cases," he said. "Every one of these is a potential threat. And anything I can do to get to the bottom of any one of them more quickly gets me closer to neutralizing a potential threat."

Because recipients are permanently barred from disclosing the letters, outsiders can make no assessment of their relevance to Mason's task.

Woods, the former FBI lawyer, said secrecy is essential when an investigation begins because "it would defeat the whole purpose" to tip off a suspected terrorist or spy, but national security seldom requires that the secret be kept forever. Even mobster "John Gotti finds out eventually that he was wiretapped" in a criminal probe, said Peter Swire, the federal government's chief privacy counselor until 2001. "Anyone caught up in an NSL investigation never gets notice."

To establish the "relevance" of the information they seek, agents face a test so basic it is hard to come up with a plausible way to fail. A model request for a supervisor's signature, according to internal FBI guidelines, offers this one-sentence suggestion: "This subscriber information is being requested to determine the individuals or entities that the subject has been in contact with during the past six months."

Edward L. Williams, the chief division counsel in Mason's office, said that supervisors, in practice, "aren't afraid to ask . . . 'Why do you want to know?' " He would not say how many requests, if any, are rejected.

'The Abuse Is in the Power Itself'

Those who favor the new rules maintain -- as Sen. Pat Roberts (R-Kan.), chairman of the Senate Select Committee on Intelligence, put it in a prepared statement -- that "there has not been one substantiated allegation of abuse of these lawful intelligence tools."

What the Bush administration means by abuse is unauthorized use of surveillance data -- for example, to blackmail an enemy or track an estranged spouse. Critics are focused elsewhere. What troubles them is not unofficial abuse but the official and routine intrusion into private lives.

To Jeffrey Breinholt, deputy chief of the Justice Department's counterterrorism section, the civil liberties objections "are eccentric." Data collection on the innocent, he said, does no harm unless "someone [decides] to act on the information, put you on a no-fly list or something." Only a serious error, he said, could lead the government, based on nothing more than someone's bank or phone records, "to freeze your assets or go after you criminally and you suffer consequences that are irreparable." He added: "It's a pretty small chance."

"I don't necessarily want somebody knowing what videos I rent or the fact that I like cartoons," said Mason, the Washington field office chief. But if those records "are never used against a person, if they're never used to put him in jail, or deprive him of a vote, et cetera, then what is the argument?"

Barr, the former congressman, said that "the abuse is in the power itself."

"As a conservative," he said, "I really resent an administration that calls itself conservative taking the position that the burden is on the citizen to show the government has abused power, and otherwise shut up and comply."

At the ACLU, staff attorney Jameel Jaffer spoke of "the profound chilling effect" of this kind of surveillance: "If the government monitors the Web sites that people visit and the books that they read, people will stop visiting disfavored Web sites and stop reading disfavored books. The FBI should not have unchecked authority to keep track of who visits [al-Jazeera's Web site] or who visits the Web site of the Federalist Society."

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