< Letter of the Law


Friday, November 11, 2005

BOB GARFIELD: What began as an emergency response to 9/11, the U.S.A. Patriot Act has over four years become institutionalized in law enforcement. One of its most powerful provisions relaxed the requirements for national security letters, a form of secret subpoena introduced in the seventies to track the transactions of suspected spies and terrorists. Until the Patriot Act, only about 300 of them were approved each year. But, as Barton Gellman reported recently in the Washington Post, use of this investigative tool has grown exponentially all outside of judicial, much less public, scrutiny.

BARTON GELLMAN: In the last year for which they counted, and it's only a partial count, there were more than 30,000 of these letters issued. The Patriot Act in October of 2001 changed the standard. Now if you're an FBI agent you only have to affirm that the information may be relevant to an investigation to protect against terrorism, so that casual contact with someone who's a suspect may attract the interest of investigators and get you investigated yourself, not the content of the conversations but all the list of calls, all the list of e-mails, what you buy online, where you browse, what you search for on Google, whether you visited a pawn shop, how much you gamble. There's a quite intimate composite portrait that emerges from this.

BOB GARFIELD: Now maybe one of the most terrifying things about this law enforcement tool is the secrecy behind it. If I am subpoenaed to reveal information about myself or, more likely, about someone whose records I have, I am not permitted to tell anybody, any living soul, that I've been given this order. Is that right?

BARTON GELLMAN: That's right. It begins with a fairly good reason. You don't want to tip off a terrorist or a spy that you are investigating him. What's unusual about these national security letters is that the secrecy is automatic, perpetual and unappealable, so that it never expires. It was U.S. government policy until 2003, once an agent determined that the information was no longer relevant to the investigation, they were mandated to erase it. John Ashcroft reversed that order. His new guidelines, which are binding, say that the FBI shall retain all information gathered in investigations and shall share it, fairly widely, around the federal government and with some state and local government.

BOB GARFIELD: Tell me about Las Vegas.

BARTON GELLMAN: At the end of 2003 there was an Orange Alert. One of the reasons was a fragmentary report that there might be a terrorist attack in Las Vegas around the New Year. They had no information on suspects, and so they tried for the first time ever to create an instant real-time moving census of every tourist and visitor in the city during its most visited period of the year. They sifted through about a million people who were considered potential suspects to see if they could find any match with any other indicator in their big database of the terrorist universe. So they used grand jury subpoenas, they used national security letters and they got every hotel guest, every air passenger, every person who rented a car or a truck or a storage space, and they made a giant database out of that and started sifting it.

BOB GARFIELD: And what did they come up with?

BARTON GELLMAN: In the parlance of the intelligence community, the whole thing washed out. They had no suspects. There was no attack. They had an undeniably important motivation here, but one of the prices that the country has paid for that is that on the order of a million people are now in government databases and are staying there. So if you got a Las Vegas hotel room and maybe if you were there with someone you ought not to have been there with, what happened in Vegas did not stay in Vegas.

BOB GARFIELD: [LAUGHS] I'm just curious. What is the list of successes that the FBI can point to because it's been able to issue these national security letters, you know, virtually at will?

BARTON GELLMAN: Well, I asked a lot of FBI agents and senior officials to please come up with some examples, not necessarily that a national security letter made a case, disrupted a plot all by itself, but that it was a link in a chain that you could show that led to some good result; you made a connection that you didn't have before. They were unable to come up with a case like that.

BOB GARFIELD: Any evidence that you found that national security letters are being used to in any way monitor speech?

BARTON GELLMAN: We know that the law says the FBI cannot gather information solely on the basis of protected First Amendment activities. The word "solely" is a pretty strong word. The FBI can use protected First Amendment activity, including speech or visiting scary websites, as a basis for monitoring someone. And the history of police and intelligence powers in this country and elsewhere, I think, suggest that when you give people a tool, they will use it. Tellingly, when one member of Congress asked the Justice Department would it be sufficient basis that someone visits a website and is a member of a certain ethnic group, the Justice Department would not answer that.

BOB GARFIELD: How can it be that four years into the Patriot Act the national security letters have not been challenged in court as, you know, a blatant intrusion of privacy?

BARTON GELLMAN: Well, there have recently been two court cases. We know of only two cases ever in which they were challenged. The plaintiffs are not officially known to the public. I discovered one of them. In the Connecticut library case that was the lead of my story, the librarian who received a national security letter was afraid to call a lawyer because the letter said that he shall not disclose to any person that he'd received it. But the reason there hasn't been much public debate until now is because no one had any idea what scale they were being used on. And crucially, people did not know, even in Congress, that the great majority of these letters asked for information about ordinary Americans and U.S. visitors who are not suspected of any wrongdoing.

BOB GARFIELD: Well Barton, as always, thank you very much.

BARTON GELLMAN: Thanks for having me.

BOB GARFIELD: Barton Gellman is a reporter for the Washington Post. [MUSIC UP AND UNDER]

DALJIT DHALIWAL: Coming up, a Washington Post reporter faces censure over a classified leak. Also, we're the latest stop on the Judith Miller redemption tour.


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