deserve neither liberty nor safety." -- Benjamin Franklin 1755
"A little patience, and we shall see the reign of witches pass over, their spells
dissolve, and the people, recovering their true sight, restore their government to
its true principles. It is true that in the meantime we are suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public debt.
If the game runs sometimes against us at home we must have patience till luck
turns, and then we shall have an opportunity of winning back the principles we
have lost, for this is a game where principles are at stake." ...Thomas Jefferson
after passage of the Sedition Act of 1798
--------------------------------------------------------------------------------
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 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.
© 2005 The Washington Post Company
