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washingtonpost.com

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 r 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

r 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

r 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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