A pair of House Democrats is adding a bipartisan flavor to months of GOP-led protestations over the way President Barack Obama’s Department of Justice circumvents the spirit of Constitutional protections against warrantless searches and seizures.
Congressmen Jerrold Nadler (N.Y.) and David Cicilline (R.I.), both Democrats, sent a letter to Attorney General Eric Holder this week demanding the DOJ explain its rationale for relying on the FBI’s secret National Security Letters, which allow Federal law enforcement to compel banks and Internet providers to give up private customer information — without their knowledge or consent.
National Security Letters are among the Patriot Act’s many freedom-choking legacies. The DOJ welcomes the FBI’s interpretation of Section 215 of the Patriot Act to include the FBI’s use of National Security Letters to collect wire-based data, as the two Congressmen point out, on a “case-by-case basis.”
Here’s the full text of the letter:
Dear Attorney General:
Over the past several months, the media has focused on Section 215 of the USA PATRIOT Act. Section 215 permits the government to obtain “any tangible thing” if there are “reasonable grounds to believe” the information sought is “relevant” to an investigation “to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”
Under this authority, the National Security Agency collects records on virtually every phone call made in the United States. We understand that the Federal Bureau of Investigation may also use Section 215 to collect telephone records on a case-by-case basis. Section 215, of course, requires the government to obtain the approval of the Foreign Intelligence Surveillance Court before it may demand these records from a communications service provider.
On February 4, 2014, at a full committee hearing of the House Judiciary Committee, we questioned Deputy Attorney General James M. Cole about a different investigative tool—National Security Letters, or “NSLs.”
NSLs permit the FBI to obtain, among other things, telephone records, email subscriber information, and financial transaction records that are “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.”2 NSLs are issued by senior FBI officials. No judicial finding is necessary.
The Review Group on Intelligence and Communications Technologies noted that “foreign intelligence investigations are especially likely to implicate highly sensitive and personal information and to have potentially severe consequences for the individuals under investigation.”3 The Review Group was “unable to identify a principled reason why NSLs should be issued by FBI officials when section 215 orders . . . must be issued by the FISC,”4 and therefore recommended that “all statutes authorizing the use of National Security Letters should be amended to require the use of the same oversight, minimization, retention, and dissemination standards that currently govern the use of section 215 orders.”
As we consider reforms to the government’s surveillance capabilities, it would be helpful to understand more about the interplay between Section 215 and NSLs. To that end, we ask the following questions:
- Presumably, anything that the government can obtain through an NSL it can also obtain through a Section 215 order from the FISA court. Given the overlap with Section 215, why are NSLs necessary?
- In what instances would the FBI choose to use an NSL instead of Section 215? In what instances would the FBI choose to use Section 215 instead of an NSL?
- In 2009, the Department of Justice reported that the FBI had made 21 applications for business records to the FISA court. In 2010, the number of requests jumped to 205. In a 2011 letter to Senator Patrick Leahy, FBI Director Robert Mueller explained that “over the last two years, the FBI has increasingly had to rely on business records orders to obtain electronic communications transactions records that historically were obtained with NSLs.”6 Why did the FBI shift from NSLs to Section 215? Does it still rely on Section 215 for these purposes? Does the FBI’s dependence on one authority or the other shift over time?
Although the government periodically reports certain aggregate numbers to the House Judiciary Committee, we require a side-by-side comparison of (1) the FBI’s use of NSLs, (2) the FBI’s use of Section 215, and (3) the NSA’s use of Section 215, which often generates leads for the FBI.
We therefore request that you provide, for all fiscal years from 2006 to the latest available reporting period, the following information:
- The number of NSLs issued by the FBI, the statutory authority for each such NSL, and the number of U.S. persons targeted by such NSLs;
- The number of times that the FBI has requested a Section 215 order from the FISA court, the number of such orders modified and granted, and the number of U.S. persons targeted by such orders;
- The number of “RAS-approved” selectors used by the NSA to query telephone metadata; the number of searches conducted with those selectors; and the number of times these queries generated a tip to the FBI.
We ask that you provide this information as soon possible, but no later than March 7, 2014.
Thank you for your prompt attention to this matter. If you have any questions, please contact John Doty from Congressman Nadler’s Office at 202.225.5635 or William Walsh from Congressman Cicilline’s Office at 202.225.4911.
Jerrold Nadler Member of Congress
David Cicilline Member of Congress
Even the NSA must go through at least a pantomime of the judicial process, via the secret Foreign Intelligence Surveillance Court (FISC), to obtain legal authorization to spy on everyone. But, as The Hill’s Julian Hattem notes, the FBI can rely on National Security Letters without any judicial review whatsoever.
While it’s obvious that this election season has plenty of Democratic Congressmen pretending to act like outraged Republicans in order to save their seats, Nadler and Cicilline have at least — perhaps unwittingly — made a bipartisan matter out of something the Obama Administration has preferred, so far, to treat as a fringe issue that draws complaint only from “right-wing” Constitutionalists.