Even though National Security Letters (NSLs) cannot be used to obtain constitutionally protected information, Michael German and Michelle Richardson attempt to bolster their argument, or merely inflame the reader, against NSLs by casting the issue in constitutional terms. They imply that NSLs are used by the government to deprive citizens of their rights, even while admitting that the Supreme Court has ruled that the information that can be obtained with an NSL is not constitutionally protected. A critical reader may ask why they feel the need to couch the argument in this way.
The reality is that NSLs can be used only to obtain limited information that is held by third parties. In this regard, NSLs are a more limited tool than are grand jury subpoenas, which can be issued based on the same relevance standard but can be used to obtain a much broader range of information.35 (NSLs are similar to administrative or grand jury subpoenas but can be used only to acquire specific categories of third-party records, such as phone toll records, credit reports, and bank records.) German and Richardson argue that the comparison to grand jury subpoenas is misplaced because the role of the grand jury and the ethical obligations of the Assistant U.S. Attorneys (AUSA) collectively serve as effective controls on the use of grand jury subpoenas; they argue that such checks do not exist for NSLs.
In practice, as they surely know, the grand jury itself plays little, if any, role in issuing subpoenas, and its function of determining whether to return a true bill of indictment follows—rather than precedes— the government’s decision to issue grand jury subpoenas (to obtain third-party documents). The decision to issue a grand jury subpoena is typically made by a line prosecutor in conjunction with a line law enforcement agent; involvement by higher-level prosecutors at the Department of Justice or higher-level agents at the investigating agency is the exception, not the rule. Moreover, there is virtually no after-the-fact review of the issuance of a grand jury subpoena by a prosecutor’s supervisors or by DOJ to ensure that the information sought was, in fact, relevant to the underlying investigation and otherwise properly handled.
In contrast, contrary to the assertion by German and Richardson that NSLs are issued without effective oversight, all NSLs must be approved and signed by a high-ranking FBI employee (a Special Agent in Charge in a field office; Deputy Assistant Director or above at headquarters), and since 2007, all NSLs must also be approved by an FBI attorney who is bound by the same ethical obligations as AUSAs. In addition, there is significant after-the-fact oversight of NSLs by the Department of Justice’s Inspector General and National Security Division that includes a review of the factual predicate for issuing an NSL and a review of how the responsive materials were handled. Finally, Congress receives semiannual and annual reports regarding the use of NSLs and has been briefed numerous times on their use.
For the past five years, since the DOJ Inspector General’s 2007 report on NSLs, scrutiny of the use of NSLs has increased to include many of the controls discussed above. Although German and Richardson claim that that there is “ample evidence this overbroad authority has been abused, as any unchecked power usually is,” they provide no evidence from recent years to support that assertion. They refer instead to the DOJ IG’s 2008 report, which examined the FBI’s use of NSLs in 2006—six years ago and prior to substantial changes being made in the control environment for NSLs. Even then, they stretch the actual findings. They assert that the FBI audit found “legal violations in 9.43 percent of its NSL files.” In fact, the FBI audits found potential violations in 9.43 percent of its files. Many of those potential violations involved third-party errors, not FBI errors. In any event, those findings are, five years later, largely irrelevant. FBI reviews subsequent to the changes adopted following the 2007 IG report have consistently found error rates below 1 percent. That progress is consistent with the DOJ IG 2008 report in which the IG acknowledged that the FBI and DOJ are committed to correcting the problems identified in the 2007 DOJ IG report and “have made significant progress in addressing the need to improve compliance in the FBI’s use of NSLs.”36
National security investigations are generally conducted in secret, and secrecy can spawn concern about unchecked power. There is always room for debate, and advocates such as German and Richardson serve an important role in ensuring that the public is aware of the tools being used in the national security arena and in articulating the risks associated with the use of such tools. The public debate surrounding the FBI’s use of NSLs generated substantial changes in the FBI’s internal processes and procedures and led to important changes in the law—changes that have enhanced privacy protections and have done so without hobbling the FBI’s important national security work.
35. See, e.g., Permanent Provisions of the Patriot Act: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 112th Cong. 2 (March 30, 2011) (statement of Rep. Sensenbrenner, Member, House Comm. on the Judiciary, available at http://www.fas.org/irp/congress/2011_hr/patriot2.pdf).
36. A REVIEW OF THE FBI’S USE OF NATIONAL SECURITY LETTERS: ASSESSMENT OF CORRECTIVE ACTIONS AND EXAMINATION OF NSL USAGE IN 2006, p.8 (March 2008), available at http://www.justice.gov/oig/special/s0803b/final.pdf.