National Security Letters

Jim Comey---and CRS---Speak on National Security Letters

By Benjamin Wittes
Thursday, January 9, 2014, 10:53 PM

FBI Director Jim Comey spoke out today against the Review Group recommendations for judicial review of national security letters, reports the New York Times:

James B. Comey, who is the director of the Federal Bureau of Investigation and was recently appointed by Mr. Obama, went public with his objections to a recommendation of a presidential review group. The panel suggested requiring court review of so-called national security letters compelling businesses, under a gag order, to turn over records about customer communications and financial transactions.

“What worries me about their suggestion that we impose a judicial procedure on N.S.L.’s is that it would actually make it harder for us to do national security investigations than bank fraud investigations,” Mr. Comey said. He added, “I just don’t know why you would make it harder to get an N.S.L. than a grand jury subpoena,” calling the letters “a very important tool that is essential to the work we do.”

Such letters have long been used in bank fraud and other cases, but their use exploded over the past decade as they were expanded to terrorism investigations, with the agency now issuing tens of thousands a year since Congress lowered the legal standard. The review panel urged Mr. Obama to require a judge to find “reasonable grounds” that the information sought “is relevant” to terrorism activities.

For those who want to learn more about national security letters, this recent Congressional Research Service report---"National Security Letters in Foreign Intelligence Investigations: A Glimpse at the Legal Background---may be useful. Written by Charles Doyle, it was made public by Steve Aftergood of Secrecy News. Its summary reads:

Five federal statutes authorize intelligence officials to request certain business record information in connection with national security investigations. The authority to issue these national security letters (NSLs) is comparable to the authority to issue administrative subpoenas. The USA PATRIOT Act (P.L. 107-56) expanded the authority under four of the NSL statutes and created the fifth. Thereafter, the authority has been reported to have been widely used. Prospects of its continued use dimmed, however, after two lower federal courts held that the lack of judicial review and the absolute confidentiality requirements in one of the statutes rendered it constitutionally suspect.

A report by the Department of Justice’s Inspector General (IG) found that in its pre-amendment use of expanded USA PATRIOT Act authority the FBI had “used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies,” but that no criminal laws had been broken. A year later, a second IG report confirmed the findings of the first, and noted the corrective measures taken in response. A third IG report, critical of the FBI’s use of exigent letters and informal NSL alternatives, noted that the practice had been stopped and related problems addressed.

The USA PATRIOT Improvement and Reauthorization Act (P.L. 109-177, and its companion, P.L. 109-178) amended the five NSL sections to expressly provide for judicial review of both the NSLs and the confidentiality requirements that attend them. The sections have also been made explicitly judicially enforceable and sanctions recognized for failure to comply with an NSL request or to breach NSL confidentiality requirements with the intent to obstruct justice. The use of the authority has been made subject to greater congressional oversight. Following amendment, a federal district court found the amended procedure contrary to the demands of the First Amendment. The U.S. Court of Appeals for the Second Circuit, however, ruled that the amended statutes could withstand constitutional scrutiny, if the government confined itself to a procedure which requires (1) notice to the recipient of its option to object to a secrecy requirement; (2) upon recipient objection, prompt judicial review at the government’s petition and burden; and (3) meaningful judicial review without conclusive weight afforded a government certification of risk. Using this procedure, the district court upheld continuation of the Doe nondisclosure requirement following an ex parte, in camera hearing and granted the plaintiff’s motion for an unclassified, redacted summary of the government declaration on which the court’s decision was based. More recently, a district court in the Ninth Circuit agreed the amended nondisclosure and judicial review provisions were constitutionally defective, but could not agree to the Second Circuit’s narrowing construction or that the NSL statute could be saved by severing the deficient disclosure provisions. The district court stayed its order enjoining issuance of further NSLs or enforcement of any accompanying nondisclosure provisions, however, pending appeal to the Ninth Circuit.

The President’s Review Group on Intelligence and Communications Technologies recommended several NSL statutory adjustments designed to eliminate differences between NSLs and Section 215 orders (under P.L. 107-56), including requiring pre-issuance judicial approval of NSLs. The text of the five provisions has been appended.

This report is available abridged—without footnotes, appendixes, and most of the citations to authority—as CRS Report RS22406, National Security Letters in Foreign Intelligence Investigations: A Glimpse at the Legal Background, by Charles Doyle.