THE BLOG

FBI NSLs Up "Manyfold"--A Clarification

05/25/2011 12:05 pm ET

I was perhaps not as clear as I should have been in my eagerness to get my piece out a couple days ago about having been one of the first in the country to have warned (albeit unsuccessfully) about the potential dangers of the FBI's use of NSLs after 9-11. I should have better explained the euphemistic terms I chose in 2003:

"The delegation of authority down to SACs has greatly streamlined and speeded up the process of issuing NSLs and my guess is that the number of NSLs being issued in the "war on terrorism" is probably manyfold what it was prior to 9-11."

In fact, we now know the process was so "greatly streamlined and speeded up," that the number of NSL requests went up almost 700%: from 8,500 in 2000 (pre 9/11) to about 56,000 in 2004, (and the Department of Justice Inspector General believes even that figure may have failed to count all of them due to sloppy record-keeping). In hindsight, I should have maybe gone out on a limb and called it "really manyfold." I don't know if I could have gotten away with it though.

You got to remember that back in 2003, I was still working for the FBI and had to get all these words approved through their "pre-publication review process" at FBI Headquarters before I could utter anything to anybody much less mention the potential problem to the ACLU. Note that "streamlined" is also a nice, euphemistic term that bureaucrats' eyes are apt to glide right over. They almost never see the potential darker side of streamlining. But Cassandra's no dummy. I had learned there was no whistleblower protection in the FBI and so chose my terms carefully so as to be able to get them out at all.

Secondly, I truly had no idea of the actual number of NSLs being served nationwide. So "manyfold" (which mean "by many increments") was my best educated guess. I was responsible for reviewing the NSLs being issued by the Minneapolis Office for several months after the Patriot Act passed up to April, 2003, (the point where I felt I had to step down from my legal supervisor position after my warnings about the Iraq War went over like a lead balloon). So I extrapolated from what I knew was occurring in Minneapolis to the rest of the country, but obviously, I didn't know the half of it.

Herein lies the real issue and what I need to clarify in respect to what I wrote a couple days ago. The problem with the FBI NSLs is not what the papers said about the IG finding that 26 were illegal out of 150,000 or so. The problem is the lack of any real judiciousness in the "streamlined" process of drafting and signing so many. Whole stacks of these letters were signed by bosses (SACs or Special Agents in Charge is their exact title) who didn't usually have a clue about the facts, and whether or not the facts warranted such further record-gathering. Combine repeated "orange alerts" and fear factor with the lack of any judiciousness, and you can see what happened.

It would perhaps be understandable if the number of NSLs had merely doubled for a while as the FBI was getting a handle on the level of actual international terrorism that existed in the country after 9/11. But a 700% increase? Judiciousness just vanished and mistakes and technical illegalities were inherent. It's almost certain that everyone who touched the process, (including me in those first few months after the Patriot Act changes), made mistakes in approving or executing this high volume of NSLs.

NSLs, by the way, are only to request third party records that already exist. The FBI can get, for instance, telephone tolls--records of the numbers you dialed--but they can't listen to the calls themselves with a mere NSL. They could get the "to" and "from" of an e-mail but not the content of what you wrote in the body of the e-mail with an NSL. Actual wiretaps and monitoring of electronic communications, by contrast, are much more intrusive of privacy and, if they were criminal matters, would require a Title III Court Order signed by a U.S. District Judge. But for terrorism or intelligence matters, such authority to monitor or search can be obtained more easily under the Foreign Intelligence Surveillance Act (FISA) from the secret FISA Court. The only thing that's not secret about FISA surveillances/searches is how many applications are granted in any given year. The numbers of FISA applications are published every year by the Electronic Privacy Information Center and guess what? Just like the NSLs, they are also skyrocketing: from 934 in 2001; to 1228 in 2002; to 1724 in 2003; to 1754 in 2004; to 2072 in 2005 (with numbers for 2006 due out shortly). So it's fair to say that FISAs have grown manyfold, too, as they've more than doubled since 9/11. And FISA applications, it should be remembered, are not for mere third party records but for the most intrusive type monitoring and searching.

For anyone still confused about the NSL issues, the ACLU has a pretty good summary of the problem posted along with several of their recommendations to fix things. Some of their recommendations make sense, but I don't agree with their first one which is to amend the Patriot Act to require that NSLs be authorized by senior level FBI officials instead of by field office SACs. The idea to delegate down the authority to FBI SACs was actually a good one and I would argue the authority itself should not be taken away. SACs are not lower-ranking than FBIHQ officials and could be just as careful and judicious as anyone if they were told to be, if they knew that the facts mattered. That was the missing part, however, when the green light of excess was on. There is actually more potential danger of politicization and abuse when such decision-making is centered in the beltway, closer to the seat of ultimate political power.

One of the remedies I suggested in my civil liberties paper way back in 2003 was for greater congressional and other oversight. Did we need an IG to point out that a jump of 8,500 to 56,000 NSLs could be a problem? How about 932 to 2072 FISAs?

Swinging pendulums are always the real danger.

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