U.S. District Court Judge John Bates has set a July 5 deadline for the FBI to hand over documents relating to the bureau’s possible misuse of what are known as National Security Letters, or NSLs, under the Patriot Act.
An earlier Justice Department audit found the FBI had improperly and sometimes illegally misused the NSL authority. Last week an FBI internal audit identified more than 1,000 possible violations since 2002.
National Security Letters are subpoenas for information for financial, phone and Internet records in investigations concerning terrorism or espionage activities that can be issued without requiring a judge’s approval. Recipients are required by law not to inform anyone other than an attorney about these demands for information. They had been used, but only sparingly, before 9/11, but the Patriot Act eased the rules. In 2005 the FBI issued 19,000 NSLs, seeking 47,000 pieces of information.
Audits by the Justice Department and, later, the FBI found about 70 percent of the violations occurred when telephone companies gave the FBI more information than it had requested, information the FBI was not authorized to have even under the lax standards embodied in the Patriot Act.
But the FBI kept that information rather than destroying it as required by law. The FBI also improperly gathered, for example, full credit reports in cases unrelated to terrorism, or without tying requests to a specific investigation.
The FBI has said it has instituted tighter controls since March, when the DOJ audit results were made public. But the Electronic Frontier Foundation filed a Freedom of Information Act request for thousands of documents relating to the use of NSLs. This is appropriate. As former Supreme Court Justice Louis Brandeis once noted, sunshine is the best disinfectant.
Public release — with questions about whether certain information would compromise national security subject to negotiation with the judge — will allow independent scrutiny of the FBI’s surveillance practices, and provide Congress better information on which to decide whether to change the law.
We agree with Electronic Frontier Foundation attorney Marcia Hoffman that “(t)he law itself is the source of the problem. It’s time for Congress to repeal these expanded NSL powers and protect Americans from this abuse of authority.”
Hoffman said there is a bill pending in the House to do just that. It should be passed. In a free society there should be some checks and balances — at least those involving having a judge review a request for a warrant — on investigative agencies seeking personal information about American citizens.
The fact that a judge is ordering such public disclosure — combined with recent decisions on Guantanamo Bay prisoners and a U.S. resident labeled an “unlawful enemy combatant” and detained indefinitely without charges, suggests that our checks-and-balances system, while not perfect, is working as the founders intended, to protect the liberties of Americans against a sometimes overzealous government.