ACLU Memo to Interested Persons Regarding Myths About Patriot Act Surveillance from the Administration

December 2, 2005

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From:            Timothy H. Edgar, National Security Policy Counsel[1]

Re:      More Myths about Patriot Act Surveillance from the Administration

In a lengthy letter to House Judiciary Chairman F. James Sensenbrenner, Jr. (R-WI), dated November 23, 2005 (“DOJ Letter”), Assistant Attorney General William Moschella charges that a Washington Post article presents a “materially misleading portrayal” of the FBI’s use of national security letters.[2]  In fact, the article is accurate and the letter does not identify any actual errors.  Instead, despite much rhetoric, it confirms the substantive points made by the article about this troubling power.

  • The FBI can and does use national security letters to obtain confidential records of ordinary, law-abiding Americans.

The standard – relevance to a national security investigation, the scope of which is determined by the government – was accurately stated by the Washington Post story, and this standard does permit the government to obtain the records of ordinary, law abiding Americans.  The DOJ Letter acknowledges this when it states that “some people whose records are produced in response to an NSL may not be terrorists or spies or associated with terrorists or spies,” but that the “the FBI needs to be able to check out every tip and track down every lead.” 

  • NSLs are issued by FBI officials alone, with no review by a court or the Justice Department, before or after the fact.

The DOJ Letter points out that the opening of an investigation requires DOJ approval, and that the FBI’s intelligence activities (including its use of NSLs) are subject to oversight by DOJ’s Inspector General and Congress.  This is not the same thing as a review of the issuance of NSLs. 

Whether a national security letter is issued is in the sole discretion of the FBI.  The DOJ Letter also ignores the serious shortcomings of IG oversight as a tool to prevent abuses.  The IG relies on complaints by members of the public -- people who do not even know whether their records are being scrutinized.  The DOJ Letter also does not dispute that Congress has been provided with nothing other than a partial count of NSLs, and that its requests for more detailed information (including reports required by law) have produced responses that are late, incomplete or nonexistent.

  • Information from NSLs – including records of innocent Americans – can be widely shared.

The letter makes clear that, as a result of information-sharing mandates regarding “terrorism information,” state, local and tribal governments, as well as private sector entities, are supposed to receive “terrorism information.” It cites absolutely no legal impediment or safeguard for the sharing of information about non-targets, obtained with an NSL, pursuant to those mandates.

  • NSLs can be used to obtain library records, and it now public knowledge that the FBI has sought records from a member of the American Library Association.

The DOJ Letter makes clear that the DOJ is using an NSL to obtain “subscriber information, billing information, and access logs” about library patrons.  The DOJ Letter asserts the NSL does not seek library checkout records, but provides no facts to refute the software vendor’s legitimate concern that library check-out information, and the names of websites visited by library patrons, is difficult or impossible to segregate from the information the NSL does seek.

  • NSLs are very different from grand jury subpoenas.

The DOJ Letter tries to downplay the very real differences between NSLs and grand jury subpoenas.  However, it actually confirms the basic differences – 1) that NSLs are issued in wide-ranging “national security” investigations that can and do investigate lawful activities, while grand jury subpoenas are limited to investigations of crime, and 2) that NSLs are always permanently secret, while grand jury subpoenas rarely are secret.  The non-disclosure obligation applies with respect to every NSL, whether or not there is actually any need for secrecy in the particular case, and the obligation is imposed without the involvement of a court.  Moreover, the non-disclosure obligation is permanent; it persists long after any legitimate need for secrecy has expired.  The DOJ Letter does not contest any of this.

  • The ability to challenge an NSL is unclear, and one federal district court has found that, in practice, the letters are so coercive that judicial review is effectively unavailable for most recipients.

The DOJ Letter mischaracterizes the fundamental debate, currently at issue in litigation, over the right to challenge an NSL.  While the government’s position is that there is a right to consult an attorney and challenge an NSL, there is no such right expressly granted by the statute.  The DOJ Letter states that the NSL statute permits an NSL recipient to make disclosures to agents, including attorneys.  This contention simply ignores the plain language of the statute.  The statute says that NSL recipients are prohibited from disclosing even the existence of the NSL to “any person.”  The statue contains no language exempting disclosures to ”agents.”

One federal court has said that, in practice, the letters are so coercive that a recipient is effectively foreclosed from asserting such a challenge.  That case is currently on appeal.  The DOJ Letter treats this unsettled issue as if it had already been definitely settled.

Endnote

[2] Barton Gellman, The FBI’s Secret Scrutiny: In Hunt for Terrorists, Bureau Examines Records of Ordinary Americans, Washington Post, November 6, 2005, at p. A1. 

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