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Deliberating Surveillance Policy: Congress, the FBI, and the Abuse of National Security Letters

Published online by Cambridge University Press:  13 June 2016

William Bendix  and
Paul J. Quirk
William Bendix
Affiliation:
Keene State College
Paul J. Quirk
Affiliation:
University of British Columbia
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Journal of Policy History , Volume 28 , Special Issue 3: Governing the Security State , July 2016 , pp. 447 - 469
Copyright
Copyright © Donald Critchlow and Cambridge University Press 2016 

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References

NOTES

1. The USA PATRIOT Act stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (P.L. 107-56).

2. For a review, see Quirk, Paul J. and Bendix, William, “Deliberation in Congress,” in The Oxford Handbook of the American Congress, ed. Schickler, Eric and Lee, Frances E. (New York, 2011), 550–74.Google Scholar

3. Steiner, Jürg, Bächtiger, André, Spörndli, Markus, and Steenbergen, Marco R., Deliberative Politics in Action: Analyzing Parliamentary Discourse (New York, 2004).Google Scholar

4. Mucciaroni, Gary and Quirk, Paul J., “Rhetoric and Reality: Going Beyond Discourse Ethics in Assessing Legislative Deliberation,” Legisprudence 4, no. 1 (2010): 35–52.CrossRefGoogle Scholar

5. See, for example, Jay Rosen, “If Romney Were Running a ‘Post-Truth’ Campaign, Would the Political Press Report It?” PressThink (12 July 2012), http://pressthink.org/2012/07/if-mitt-romney-were-running-a-post-truth-campaign-would-the-political-press-report-it/.

6. Landy, Marc K., Roberts, Marc J., and Thomas, Stephen R., The Environmental Protection Agency: Asking the Wrong Questions (New York, 1990).Google Scholar

7. Mucciaroni, Gary and Quirk, Paul J., Deliberative Choices: Debating Public Policy in Congress (Chicago, 2006).Google Scholar

8. A debate may: ignore an issue that should be decided, overlook important facts, draw unwarranted inferences from facts, overlook some consequences of a policy, misstate the legal effect of legal language, make unrealistic predictions, and/or use emotional rhetoric to distract attention from opposing values, among many other potential defects. It is not possible to systematically collect data on all of the general attributes of deliberations—coverage of relevant issues, recognition of important facts, and so on—that are pertinent to these defects. To account for the deliberation on a particular issue (as opposed to general patterns of deliberative performance), therefore, an open-ended approach is necessary.

9. United States Department of Justice, Office of the Inspector General, A Review of the Federal Bureau of Investigation’s Use of National Security Letters (March 2007), 46. Hereafter DoJ Report (2007).

10. Section 505 of the Patriot Act.

11. Section 1114 of the Right to Financial Privacy Act of 1978 (P.L. 95-630).

12. Charles Doyle, National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments, Congressional Research Service, RL33320 (8 September 2009), 2.

13. Section 404 of the Intelligence Authorization Act for Fiscal Year 1987 (P.L. 99-569).

14. In 2003, the Bush administration formally ended the long-standing policy to discard information collected on innocent U.S. persons. See Barton Gellman, “The FBI’s Secret Scrutiny: In Hunt for Terrorists, Bureau Examines Records of Ordinary Americans,” Washington Post, 6 November 2005, A01.

15. Nieland, Andrew E., “National Security Letters and the Amended Patriot Act,” Cornell Law Review 92 (2007): 1201–2.Google Scholar

16. Kris, David S. and Wilson, J. Douglas, National Security Investigations and Prosecutions, vol. 1, 2nd ed. (Danvers, Mass.: Thompson/West, 2012), § 20:6.Google Scholar

17. Deputy Attorney General Daniel L. Koffsky, Memorandum Opinion for the General Counsel Federal Bureau of Investigation, in response to Requests for Information under the Electronic Communications Act (5 November 2008).

18. Section 2709 of the Electronic Communications Act of 1986 (P.L. 99-508).

19. Section 624 of the Intelligence Authorization Act for Fiscal Year 1996 (P.L. 104-93). This provision amended the Fair Credit Reporting Act of 1970 (P.L. 91-508). Two years earlier, in 1994, Congress also authorized the use of national security letters to investigate government leaks. The Patriot Act did not change or otherwise affect this authority.

20. Doyle, National Security Letters in Foreign Intelligence Investigations, 3.

21. Ibid., 4.

22. DoJ Report (2007), 44.

23. Allison, Graham T., Nuclear Terrorism: The Ultimate Preventable Catastrophe (New York, 2004), 1–6Google Scholar. Heightening fears in the weeks after 9/11, letters containing anthrax spores were sent to congressional offices, forcing evacuations and disrupting legislative deliberations.

24. Robert O’Harrow Jr., “Six Weeks in Autumn: A year ago, as a nation reeled from attack, a battle was joined for America’s future. Not in Afghanistan. In Washington,” Washington Post, 27 October 2002, W06.

25. In mid-October 2001, the Judiciary Committee’s bill went to the House floor under a closed rule and passed easily. It was not taken up by the Senate.

26. Harrow, “Six weeks in Autumn.”

27. The quashed House bill also contained a provision on NSLs. Like the final version of the Patriot Act, it imposed no sunset on the letters. See Sections 224 and 505 of the USA Act of 2001 (H.R. 2975).

28. Congressional Record 147 (11 October 2001), S10584.

29. USA PATRIOT Improvement and Reauthorization Act of 2005 (P.L. 109-77).

30. David D. Kirkpatrick, “Hearing on Patriot Act Ends in an Angry Uproar,” New York Times, 11 June 2005, A9.

31. Section 5 of the SAFE Act of 2005 (S. 737).

32. See, for example, statement by Senator John Senunu (R-N.H.), Congressional Record 151 (16 December 2005), S13714.

33. See statement by Senator Richard Durbin (D-Ill.), Congressional Record 151 (29 July 2005), S9561.

34. Doe v. Ashcroft, 334 F.Supp.2d 471, 522 (S.D.N.Y. 2004). A second challenger of national security letters prevailed in Doe v. Gonzales, 500 F. Supp. 2d 379 (S.D.N.Y. 2007). For more details, see Dan Eggen, “Key Part of Patriot Act Ruled Unconstitutional: Internet Providers’ Data at Issue,” Washington Post, 30 September 2004, A16.

35. Brain T. Yeh and Charles Doyle, USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis, Congressional Research Service, RL33332 (21 December 2006), 10–15.

36. Gellman, “The FBI’s Secret Scrutiny.”

37. Barton Gellman and Dafna Linzer, “Pushing the Limits of Wartime Powers,” Washington Post, 18 December 2005, A01.

38. Congressional Record 151 (15 December 2005), S13616.

39. Ibid.

40. According to the Washington Post, the Bush administration at the time “offered Congress no concrete information, even in classified form, save for a partial count of the number of letters delivered.” See Gellman, “The FBI’s Secret Scrutiny.”

41. For example, in the Intelligence Authorization Act of 1987, it stipulates, “On a semiannual basis the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests [for national security letters].”

42. In December 2005, the New York Times revealed that the NSA had “monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants.” Shortly after this story broke, the Bush administration acknowledged that the NSA’s warrantless program targeted 7,000 people overseas and 500 people in the United States. See James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers without Courts,” New York Times, 16 December 2005, A1; James Risen, State of War: The Secret History of the CIA and the Bush Administration (New York, 2006), 54.

43. Yeh and Doyle, USA PATRIOT Improvement and Reauthorization Act of 2005, 16.

44. Jeff Zeleny and Megan Thee, “Exit Polls Show Independents, Citing War, Favored Democrats,” New York Times, 8 November 2006, P9.

45. DoJ Report (2007), xvi–xxi.

46. Ibid., 28.

47. Ibid., xv–xl.

48. Lichtblau, Eric, Bush’s War: The Remaking of American Justice (New York, 2008), 92–93.Google Scholar

49. Rapid changes in communication technology and billing procedures over the last fifteen years have made it unclear what information can be captured with a national security letter. With flat fees and bundled plans, where service providers no longer track the individual communications of their customers, collection of phone and email records often places a significant burden on companies. This burden may make administrative subpoenas inappropriate and, instead, require agents to seek court approval. See Koffsky, Memorandum Opinion; see also Kris and Wilson, National Security Investigations and Prosecutions, § 20:6.

50. U.S. Department of Justice, Office of the Inspector General, A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006 (March 2008), 145.

51. U.S. Department of Justice, Office of the Inspector General, A Review of the FBI’s Use of Section 215 Orders for Business Records in 2006 (March 2008), 5.

52. DoJ Report (2007), 79–85.

53. Statement of former DoJ Counsel for Intelligence Policy James A. Baker, National Security Letters: The Need for Greater Accountability and Oversight, Hearing before the Committee on the Judiciary United States Senate, 110th Cong., 2d sess. (23 April 2008), 10.

54. Under Section 101 of the Foreign Intelligence Surveillance Act of 1978 (P.L. 95-511), minimization procedures are defined as “specific procedures . . . that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.”

55. Statement of former Associate Deputy Attorney General David Kris, National Security Letters Reform Act of 2007, Hearing before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the Committee on the Judiciary House of Representatives, 110th Cong., 2d sess. (15 April 2008), 91. See also the statement of former FBI Chief of National Security Law Unit Michael J. Woods, National Security Letters: The Need for Greater Accountability and Oversight, 24.

56. Statement of Inspector General Glenn A. Fine, Misuse of Patriot Act Powers: The Inspector General’s Findings of Improper Use of National Security Letters by the FBI, Hearing before the Committee on the Judiciary United States Senate, 110th Cong., 1st sess. (21 March 2007), 27.

57. Statement of Inspector General Glenn A. Fine, National Security Letters Reform Act of 2007, Hearing before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the Committee on the Judiciary House of Representatives, 110th Cong., 2d sess. (15 April 2008), 8.

58. U.S. Department of Justice, Office of the Inspector General, A Review of the Federal Bureau of Investigation’s Use of Section 215 Orders for Business Records (March 2007), 48–58.

59. The National Security Letters Reform Act of 2007 (H.R. 3189, S. 2088).

60. Charles Doyle, National Security Letters: Proposals in the 112th Congress, Congressional Research Service, R41619 (30 June 2011), 18.

61. U.S. Department of Justice, Office of the Inspector General, A Review of the Federal Bureau of Investigation’s Use of National Security Letters: Assessment of Progress in Implementing Recommendations and Examination of Use in 2007 through 2009 (August 2014). Hereafter DoJ Report (2014).

62. Michelle Richardson, National Security Letters: A Note on Numbers, American Civil Liberties Union (12 May 2012), http://www.aclu.org/blog/national-security/national-security-letters-note-numbers.

63. Specifically, Congress renewed the roving electronic surveillance provision (section 206) and the business-records provision (section 215) in the Patriot Act. It also reauthorized the lone-wolf provision (section 6002) in the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458).

64. Bendix, William and Quirk, Paul J., “Secrecy and Negligence: How Congress Lost Control of Domestic Surveillance,” Issues in Governance Studies 68, Brookings Institution (March 2015): 1–19.Google Scholar

65. DoJ Report (2014), 65.

66. Ibid., 77.

67. Ibid., 110–12.

68. The inspector general judged most violations as minor and accidental (such as mistyping a targeted email address or phone number), and he acknowledged the FBI’s new vigilance in adhering to investigative restrictions. That said, he did view the FBI’s slow response to addressing and correcting errors—often taking a year or longer—as a significant concern. See ibid., 84–90.

69. Richard A. Clarke, Michael J. Morell, Geoffrey R. Stone, Cass R. Sunstein, and Peter P. Swire, Liberty and Security in a Changing World: Report and Recommendations of The President’s Review Group on Intelligence and Communications Technologies, Office of the Director of National Intelligence (December 2013), 89–93.

70. Statement of Deputy Attorney James Cole, Examining Recommendations to Reform FISA Authorities, Hearing before the Committee on the Judiciary House of Representatives, 113th Cong., 2d sess. (4 February 2014), 116.

71. H.R. 3361 and S. 2685.

72. Charles Doyle, National Security Letters: Proposals in the 113th Congress, Congressional Research Service, R43322 (22 January 2015), 15.

73. Section 501 of the USA Freedom Act of 2015 (P.L. 114-23) stipulates that a national security letter “shall include a term that specifically identifies a consumer or account to be used as the basis for the production” of records.

74. However, the Senate’s version of the National Security Letter Reform Act of 2007 (S. 2088) stipulated that only the FBI director and his designee would have letter-issuing powers, as opposed to all special agents in charge of a field office. Such a change, if implemented, would have undone the Patriot Act’s expansion and limited the number of letters officials could authorize.

75. See Mann, Thomas E. and Ornstein, Norman J., The Broken Branch: How Congress Is Failing America and How to Get It Back on Track (New York, 2006)Google Scholar; Mann and Ornstein, It’s Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism (New York, 2012).