The National Security Letters story, and WaPo's rather large error

By Lee Russ

Monday, March 12, 2007 at 05:51 PM

I've resisted writing about the recent DOJ audit of the FBI's use of National Security Letters (NSLs), partly because it's so complicated and partly because I just had the feeling that the problem was bigger than the impression you got from the mainstream media.

Today I bit the bullet and dove. And here is what I found/think/suppose. (If you don't know the basic background, you can click this link to an MSM story and this one to the audit report itself.

The audit, surprisingly, seems to have been reasonably thorough as these things go, and reached some conclusions that are truly critical of the FBI. And the FBI's performance has been, if anything, worse than most of the media have described.

The audit report's findings that I consider the most alarming (all taken from the Executive Summary of the report) are that:

The FBI has used NSLs to an amazing degree, issuing more than 140,000 of them from 2003-2005.

The NSLs sought information concerning some 52,000 people.

During this period, the targets of NSLs shifted, with the % of NSL requests generated from investigations of U.S. persons increasing from about 39% of all NSL requests in 2003 to about 53% of all NSL requests in 2005.

During this entire period, the FBI significantly underreported the number of overall NSLs and the number of NSL issuances that involved some impropriety.

The FBI really had no record of which information was passed on to other agencies, or even which agencies received it.

Pretty picture wouldn't you say? And I don't care that the audit report concludes that the mistakes and errors were unintentional (and, by the way, how would the DOJ's auditor have known in the first place?). In a lot of ways, that scares me even more than if they were intentional.

So, on to the misinformation, disinformation, and flat out propaganda.

First, the Washington Post managed to mangle a crucial bit of information in the report. The FBI has to, by law, keep track of improprieties in issuing NSLs, and had reported a total of 26 such instances to congress. The audit report did a selective review of 77 files, which contained a total of 293 NSLs. In that sample alone the audit identified 22 instances of potential impropriety. In fact, the report specifically states that "We found that 22 percent of the investigative flies that we reviewed contained at least one possible IOB violation that was not reported..."

But the Washington Post gets the data very wrong, saying (emphasis added) "In the sample of 293 letters, the FBI had identified 26 potential violations but missed 22 others, the report said." So according to the WaPo, the FBI identified 26 of the total of 48 questionable NSLs. But the 26 identified by the FBI was out of all 140,000-plus NSLs, a very, very different story. The audit report estimates that 22% of all NSLs are questionable; 22% of 140,000 is 30,800. Of which the FBI identified 26.

Then we have the problem of the President, of course. His reaction was to express concern, reassure us that all necessary steps would be taken to correct problems, then reiterate once more that while the report by the Justice Department's inspector general "justly made issue of FBI shortfalls, (it) also made clear that these letters were important to the security of the United States."

It did no such thing, of course. The report merely notes that the FBI agents found the NSLs quite useful, which is a far different thing. Of course they find them useful, they allow the agents to get info without bothering to go to court. I'd be shocked if they didn't find them useful.

In fact, the Patriot Act changed the standard for issuing NSLs:

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."

What FBI agent wouldn't like that new, so-loose-it's-almost-irrelevant standard?

And finally, we come to the propaganda that the FBI has deliberately disseminated about NSLs. In an Op-Ed piece by two FBI people that now appears on the FBI's web site, they actually make this claim:

An NSL is simply a request for information. It does not authorize the FBI to conduct a search or make a seizure. If the recipient of an NSL declines to produce the requested information, the FBI cannot compel him to do so; only a federal court has that authority.

NSLs are subject to two other important limitations. First, the FBI may issue them only to obtain information relevant to an international terrorism or espionage investigation. They are not available in criminal investigations or domestic terrorism investigations.

Yeah, that's 100% correct, don't you think? Most people and institutions who receive an NSL simply comply--easier, cheaper, and it doesn't piss off our increasingly authoritarian and vengeful government. So for all intents and purposes, it does amount to a search. As for the uses to which the information can be put...that's determined by the individual FBI agent's conscience.

So the Bush/Cheney "just trust us" mantra appears to be as reliable as one would have expected for one of the most truth-challenged White House's in American history.

Read the DOJ report. It's worth slogging through at least the lengthy Executive Summary.

Then sit back and enjoy watching the administration at least temporarily scramble through it's crisis control efforts. Which so far include, according to the same WaPo article that got the info on questionable NSLs wrong, a flurry of efforts by the DOJ and the White House to amend previous statements to congress that are turning out to be embarrassingly wrong. As the WaPo put it:

The findings by inspector general Fine were so at odds with previous assertions by the Bush administration that Capitol Hill was peppered yesterday with retraction letters from the Justice Department attempting to correct statements in earlier testimony and briefings. Gonzales and other officials had repeatedly portrayed national security letters as a well-regulated tool necessary for the prevention of terrorist attacks.

One such retraction letter, sent to Specter by Acting Assistant Attorney General Richard A. Hertling, sought to correct a 2005 letter that attacked a Washington Post story about national security letters. "We have determined that certain statements in our November 23 letter need clarification," Hertling wrote.