[News] FBI's Secret Scrutiny

Anti-Imperialist News News at freedomarchives.org
Mon Nov 7 11:48:32 EST 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."
Links in a Chain

Ready access to national security letters allows investigators to employ 
them routinely for "contact chaining."

"Starting with your bad guy and his telephone number and looking at who 
he's calling, and [then] who they're calling," the number of people 
surveilled "goes up exponentially," acknowledged Caproni, the FBI's general 
counsel.

But Caproni said it would not be rational for the bureau to follow the 
chain too far. "Everybody's connected" if investigators keep tracing calls 
"far enough away from your targeted bad guy," she said. "What's the point 
of that?"

One point is to fill government data banks for another investigative 
technique. That one is called "link analysis," a practice Caproni would 
neither confirm nor deny.

Two years ago, Ashcroft rescinded a 1995 guideline directing that 
information obtained through a national security letter about a U.S. 
citizen or resident "shall be destroyed by the FBI and not further 
disseminated" if it proves "not relevant to the purposes for which it was 
collected." Ashcroft's new order was that "the FBI shall retain" all 
records it collects and "may disseminate" them freely among federal agencies.

The same order directed the FBI to develop "data mining" technology to 
probe for hidden links among the people in its growing cache of electronic 
files. According to an FBI status report, the bureau's office of 
intelligence began operating in January 2004 a new Investigative Data 
Warehouse, based on the same Oracle technology used by the CIA. The CIA is 
generally forbidden to keep such files on Americans.

Data mining intensifies the impact of national security letters, because 
anyone's personal files can be scrutinized again and again without a fresh 
need to establish relevance.

"The composite picture of a person which emerges from transactional 
information is more telling than the direct content of your speech," said 
Woods, the former FBI lawyer. "That's certainly not been lost on the 
intelligence community and the FBI."

Ashcroft's new guidelines allowed the FBI for the first time to add to 
government files consumer data from commercial providers such as LexisNexis 
and ChoicePoint Inc. Previous attorneys general had decided that such a 
move would violate the Privacy Act. In many field offices, agents said, 
they now have access to ChoicePoint in their squad rooms.

What national security letters add to government data banks is information 
that no commercial service can lawfully possess. Strict privacy laws, for 
example, govern financial and communications records. National security 
letters -- along with the more powerful but much less frequently used 
secret subpoenas from the Foreign Intelligence Surveillance Court -- 
override them.
'What Happens in Vegas'

The bureau displayed its ambition for data mining in an emergency operation 
at the end of 2003.

The Department of Homeland Security declared an orange alert on Dec. 21 of 
that year, in part because of intelligence that hinted at a New Year's Eve 
attack in Las Vegas. The identities of the plotters were unknown.

The FBI sent Gurvais Grigg, chief of the bureau's little-known Proactive 
Data Exploitation Unit, in an audacious effort to assemble a real-time 
census of every visitor in the nation's most-visited city. An average of 
about 300,000 tourists a day stayed an average of four days each, 
presenting Grigg's team with close to a million potential suspects in the 
ensuing two weeks.

A former stockbroker with a degree in biochemistry, Grigg declined to be 
interviewed. Government and private sector sources who followed the 
operation described epic efforts to vacuum up information.

An interagency task force began pulling together the records of every hotel 
guest, everyone who rented a car or truck, every lease on a storage space, 
and every airplane passenger who landed in the city. Grigg's unit filtered 
that population for leads. Any link to the known terrorist universe -- a 
shared address or utility account, a check deposited, a telephone call -- 
could give investigators a start.

"It was basically a manhunt, and in circumstances where there is a manhunt, 
the most effective way of doing that was to scoop up a lot of third party 
data and compare it to other data we were getting," Breinholt said.

Investigators began with emergency requests for help from the city's 
sprawling hospitality industry. "A lot of it was done voluntary at first," 
said Billy, the deputy assistant FBI director.

According to others directly involved, investigators turned to national 
security letters and grand jury subpoenas when friendly persuasion did not 
work.

Early in the operation, according to participants, the FBI gathered casino 
executives and asked for guest lists. The MGM Mirage company, followed by 
others, balked.

"Some casinos were saying no to consent [and said], 'You have to produce a 
piece of paper,' " said Jeff Jonas, chief scientist at IBM Entity 
Analytics, who previously built data management systems for casino 
surveillance. "They don't just market 'What happens in Vegas stays in 
Vegas.' They want it to be true."

The operation remained secret for about a week. Then casino sources told 
Rod Smith, gaming editor of the Las Vegas Review-Journal, that the FBI had 
served national security letters on them. In an interview for this article, 
one former casino executive confirmed the use of a national security 
letter. Details remain elusive. Some law enforcement officials, speaking on 
the condition of anonymity because they had not been authorized to divulge 
particulars, said they relied primarily on grand jury subpoenas. One said 
in an interview that national security letters may eventually have been 
withdrawn. Agents encouraged voluntary disclosures, he said, by raising the 
prospect that the FBI would use the letters to gather something more 
sensitive: the gambling profiles of casino guests. Caproni declined to 
confirm or deny that account.

What happened in Vegas stayed in federal data banks. Under Ashcroft's 
revised policy, none of the information has been purged. For every visitor, 
Breinholt said, "the record of the Las Vegas hotel room would still exist."

Grigg's operation found no suspect, and the orange alert ended on Jan. 10, 
2004."The whole thing washed out," one participant said.
'Of Interest to President Bush'

At around the time the FBI found George Christian in Connecticut, agents 
from the bureau's Charlotte field office paid an urgent call on the 
chemical engineering department at North Carolina State University in 
Raleigh. They were looking for information about a former student named 
Magdy Nashar, then suspected in the July 7 London subway bombing but since 
cleared of suspicion.

University officials said in interviews late last month that the FBI tried 
to use a national security letter to demand much more information than the 
law allows.

David T. Drooz, the university's senior associate counsel, said special 
authority is required for the surrender of records protected by educational 
and medical privacy. The FBI's first request, a July 14 grand jury 
subpoena, did not appear to supply that authority, Drooz said, and the 
university did not honor it. Referring to notes he took that day, Drooz 
said Eric Davis, the FBI's top lawyer in Charlotte, "was focused very much 
on the urgency" and "he even indicated the case was of interest to 
President Bush."

The next day, July 15, FBI agents arrived with a national security letter. 
Drooz said it demanded all records of Nashar's admission, housing, 
emergency contacts, use of health services and extracurricular activities. 
University lawyers "looked up what law we could on the fly," he said. They 
discovered that the FBI was demanding files that national security letters 
have no power to obtain. The statute the FBI cited that day covers only 
telephone and Internet records.

"We're very eager to comply with the authorities in this regard, but we 
needed to have what we felt was a legally valid procedure," said Larry A. 
Neilsen, the university provost.

Soon afterward, the FBI returned with a new subpoena. It was the same as 
the first one, Drooz said, and the university still had doubts about its 
legal sufficiency. This time, however, it came from New York and summoned 
Drooz to appear personally. The tactic was "a bit heavy-handed," Drooz 
said, "the implication being you're subject to contempt of court." Drooz 
surrendered the records.

The FBI's Charlotte office referred questions to headquarters. A 
high-ranking FBI official, who spoke on the condition of anonymity, 
acknowledged that the field office erred in attempting to use a national 
security letter. Investigators, he said, "were in a big hurry for obvious 
reasons" and did not approach the university "in the exact right way."
'Unreasonable' or 'Oppressive'

The electronic docket in the Connecticut case, as the New York Times first 
reported, briefly titled the lawsuit Library Connection Inc. v. Gonzales . 
Because identifying details were not supposed to be left in the public 
file, the court soon replaced the plaintiff's name with "John Doe."

George Christian, Library Connection's executive director, is identified in 
his affidavit as "John Doe 2." In that sworn statement, he said people 
often come to libraries for information that is "highly sensitive, 
embarrassing or personal." He wanted to fight the FBI but feared calling a 
lawyer because the letter said he could not disclose its existence to "any 
person." He consulted Peter Chase, vice president of Library Connection and 
chairman of a state intellectual freedom committee. Chase -- "John Doe 1" 
in his affidavit -- advised Christian to call the ACLU. Reached by 
telephone at their homes, both men declined to be interviewed.

U.S. District Judge Janet C. Hall ruled in September that the FBI gag order 
violates Christian's, and Library Connection's, First Amendment rights. A 
three-judge panel heard oral argument on Wednesday in the government's appeal.

The central facts remain opaque, even to the judges, because the FBI is not 
obliged to describe what it is looking for, or why. During oral argument in 
open court on Aug. 31, Hall said one government explanation was so vague 
that "if I were to say it out loud, I would get quite a laugh here." After 
the government elaborated in a classified brief delivered for her eyes 
only, she wrote in her decision that it offered "nothing specific."

The Justice Department tried to conceal the existence of the first and only 
other known lawsuit against a national security letter, also brought by the 
ACLU's Jaffer and Ann Beeson. Government lawyers opposed its entry into the 
public docket of a New York federal judge. They have since tried to censor 
nearly all the contents of the exhibits and briefs. They asked the judge, 
for example, to black out every line of the affidavit that describes the 
delivery of the national security letter to a New York Internet company, 
including, "I am a Special Agent of the Federal Bureau of Investigation 
('FBI')."

U.S. District Judge Victor Marrero, in a ruling that is under appeal, held 
that the law authorizing national security letters violates the First and 
Fourth Amendments.

Resistance to national security letters is rare. Most of them are served on 
large companies in highly regulated industries, with business interests 
that favor cooperation. The in-house lawyers who handle such cases, said 
Jim Dempsey, executive director of the Center for Democracy and Technology, 
"are often former prosecutors -- instinctively pro-government but also 
instinctively by-the-books." National security letters give them a shield 
against liability to their customers.

Kenneth M. Breen, a partner at the New York law firm Fulbright & Jaworski, 
held a seminar for corporate lawyers one recent evening to explain the 
"significant risks for the non-compliant" in government counterterrorism 
investigations. A former federal prosecutor, Breen said failure to provide 
the required information could create "the perception that your company 
didn't live up to its duty to fight terrorism" and could invite 
class-action lawsuits from the families of terrorism victims. In extreme 
cases, he said, a business could face criminal prosecution, "a 'death 
sentence' for certain kinds of companies."

The volume of government information demands, even so, has provoked a 
backlash. Several major business groups, including the National Association 
of Manufacturers and the U.S. Chamber of Commerce, complained in an Oct. 4 
letter to senators that customer records can "too easily be obtained and 
disseminated" around the government. National security letters, they wrote, 
have begun to impose an "expensive and time-consuming burden" on business.

The House and Senate bills renewing the Patriot Act do not tighten privacy 
protections, but they offer a concession to business interests. In both 
bills, a judge may modify a national security letter if it imposes an 
"unreasonable" or "oppressive" burden on the company that is asked for 
information.
'A Legitimate Question'

As national security letters have grown in number and importance, oversight 
has not kept up. In each house of Congress, jurisdiction is divided between 
the judiciary and intelligence committees. None of the four Republican 
chairmen agreed to be interviewed.

Roberts, the Senate intelligence chairman, said in a statement issued 
through his staff that "the committee is well aware of the intelligence 
value of the information that is lawfully collected under these national 
security letter authorities," which he described as "non-intrusive" and 
"crucial to tracking terrorist networks and detecting clandestine 
intelligence activities." Senators receive "valuable reporting by the FBI," 
he said, in "semi-annual reports [that] provide the committee with the 
information necessary to conduct effective oversight."

Roberts was referring to the Justice Department's classified statistics, 
which in fact have been delivered three times in four years. They include 
the following information: how many times the FBI issued national security 
letters; whether the letters sought financial, credit or communications 
records; and how many of the targets were "U.S. persons." The statistics 
omit one whole category of FBI national security letters and also do not 
count letters issued by the Defense Department and other agencies.

Committee members have occasionally asked to see a sampling of national 
security letters, a description of their fruits or examples of their 
contribution to a particular case. The Justice Department has not obliged.

In 2004, the conference report attached to the intelligence authorization 
bill asked the attorney general to "include in his next semiannual report" 
a description of "the scope of such letters" and the "process and standards 
for approving" them. More than a year has passed without a Justice 
Department reply.

"The committee chairman has the power to issue subpoenas" for information 
from the executive branch, said Rep. Zoe Lofgren (D-Calif.), a House 
Judiciary Committee member. "The minority has no power to compel, and . . . 
Republicans are not going to push for oversight of the Republicans. That's 
the story of this Congress."

In the executive branch, no FBI or Justice Department official audits the 
use of national security letters to assess whether they are appropriately 
targeted, lawfully applied or contribute important facts to an investigation.

Justice Department officials noted frequently this year that Inspector 
General Glenn A. Fine reports twice a year on abuses of the Patriot Act and 
has yet to substantiate any complaint. (One investigation is pending.) Fine 
advertises his role, but there is a puzzle built into the mandate. Under 
what scenario could a person protest a search of his personal records if he 
is never notified?

"We do rely upon complaints coming in," Fine said in House testimony in 
May. He added: "To the extent that people do not know of anything happening 
to them, there is an issue about whether they can complain. So, I think 
that's a legitimate question."

Asked more recently whether Fine's office has conducted an independent 
examination of national security letters, Deputy Inspector General Paul K. 
Martin said in an interview: "We have not initiated a broad-based review 
that examines the use of specific provisions of the Patriot Act."

At the FBI, senior officials said the most important check on their power 
is that Congress is watching.

"People have to depend on their elected representatives to do the job of 
oversight they were elected to do," Caproni said. "And we think they do a 
fine job of it."

Researcher Julie Tate and research editor Lucy Shackelford contributed to 
this report.
© 2005 The Washington Post Company


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