[TELECOM Digest Editor's Note: Excerpts from a rather lengthy article
over the weekend in Washingon Post. See the newspaper's web site for
the entire article. http://washingtonpost.com And people think Joe
McCathy was bad news ... PAT]
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.
Copyright 2005 The Washington Post Company
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