The FBI and NSLs 2: The “Accident” Excuse Unravels (Updated)

As predicted, the DoJ IG’s conclusion that the FBI’s illegal use of NSLs did not constitute a crime is being called into question, and by a Republican no less.

Referring to the exigent circumstance letters, Sen. Charles E. Grassley (R-Iowa) wrote in a letter Friday to Justice Department Inspector General Glenn A. Fine: “It is . . . difficult to imagine why there should not have been swift and severe consequences for anyone who knowingly signed . . . a letter containing false statements. Anyone at the FBI who knew about that kind of wrongdoing had an obligation to put a stop to it and report it immediately.”

Yes, of course they did, but report it to who? Alberto?

Charlie’s sudden concern for the possibly illegal use of the NSLs after 6 years of sitting obediently on his ass and watching the Bush Administration and the Justice Dept play fast-and-loose with the Constitution arose yesterday when it came to light that the FBI’s own legal staff were expressing doubts about the way the NSLs were being handled as early as 2004.

FBI counterterrorism officials continued to use flawed procedures to obtain thousands of U.S. telephone records during a two-year period when bureau lawyers and managers were expressing escalating concerns about the practice, according to senior FBI and Justice Department officials and documents.

FBI lawyers raised the concerns beginning in late October 2004 but did not closely scrutinize the practice until last year, FBI officials acknowledged. They also did not understand the scope of the problem until the Justice Department launched an investigation, FBI officials said.

Oh, well, you know. No hurry or anything.

Under pressure to provide a stronger legal footing, counterterrorism agents last year wrote new letters to phone companies demanding the information the bureau already possessed. At least one senior FBI headquarters official — whom the bureau declined to name — signed these “national security letters” without including the required proof that the letters were linked to FBI counterterrorism or espionage investigations, an FBI official said.

The flawed procedures involved the use of emergency demands for records, called “exigent circumstance” letters, which contained false or undocumented claims. They also included national security letters that were issued without FBI rules being followed. Both types of request were served on three phone companies.


FBI and Justice Department officials said most of the letters at issue were drafted by the Communications Analysis Unit (CAU), which comprises about a dozen people assigned to analyze telephone records and other communications for counterterrorism investigators. They sent the secret requests to three companies — AT&T, Verizon and a third firm whose identity could not be learned. Since the 2001 terrorist attacks, the FBI has been paying the companies’ cost of supplying such records almost instantaneously in a form that its agents can readily examine, according to the report and the senior FBI official.

In each letter, the FBI asserted that “due to exigent circumstances, it is requested that records for the attached list of telephone numbers be provided.” The bureau promised in most of the letters that subpoenas for the same information “have been submitted to the U.S. Attorney’s office who will process and serve them formally.”

All perfectly fine except for three minor flaws, hardly worth mentioning: the “exigent [emergency] conditions” didn’t exist, the subpoenas were never requested, and the US Atty therefore did not process them because there was nothing to process. Aside from that….

We are definitely in “plausible deniability” territory. Were there any lawyers among the dozen members of the elite CAU responsible for the NSLs? If so, why didn’t they respond to the concerns of the Bureau’s legal staff? And even if there weren’t, how could a slew of “counter-terrorism experts” fail to notice when asking for emergency powers that there was no actual terrorist emergency? Presumably they can tell a terrorist emergency from a fishing expedition. I would think you might consider that a definiton of “expert”: anybody who can’t, isn’t.

Or else it was deliberate: the NSLs were used because they were there, and the subpoenas were never requested because the agents knew damn well there were no “emergency” grounds for them. Submitting them might call attention to that fact, while not submitting them could be dismissed as an oversight, a mistake, or a clerical error.

FBI Dir Bob Mueller has ordered a nationwide audit of all FBI offices to determine whether or not improper use of the NSLs happened outside HQ. Which is all well and good if a little late. The CAU has apparently been completely without oversight or supervision for at least 4 years and acted accordingly.

The Bush Administration and the Republican Congress ignored the fears of Russ Feingold and others and gave the Bureau a tool that would get them the phone records and financial information they wanted without their having to go through the cumbersome process of getting a judge to sign a warrant, so they used it. Nobody was telling them they couldn’t, nobody was looking over their shoulders inspecting what they were doing, and they had no real reason to think anybody ever would. So why not?

Law enforcement agencies are notoriously lazy investigators, infamously hostile to legal restrictions (especially when they’re required to actually follow them), prone to grabbing chances to skip steps and cut corners whenever possible, and congenitally certain that every case they’re working on is urgent. Left alone, as they have been way too often in the past, violations of what they consider “technicalities” invariably occur, and the less the supervision, the greater the scope and number of violations. What went on at the FBI for 4 years fits that pattern rather neatly, and it’s the reason Feingold fought so hard to kill the provision of the PATRIOT Act that allowed it.

Misuse of such a tool by law enforcement was as predictable as the presence of hookers at a Republican convention. If the Congress was willing to give it to them virtually without legal restrictions – at least none they needed to feel they had to pay attention to – then it, too, was done deliberately. The Pubs were “removing the handcuffs” that, in their view (as they’ve said over and over for 40 years), kept the police and the FBI from being able to do their jobs.

A little background might help at this point:

In 1994, shortly after the Gingrich Revolution brought the neocon/authoritarian wing of the GOP to power, Congressional Democrats submitted the Fourth Amendment against illegal search and seizure as a bill without identifying it.

Not only did the new Republican majority not recognize it, they rejected it, saying it “tied the hands of the police”.

Note, please, that that was 7 years before 9/11 provided them with an excuse to shred the Bill of Rights in the PATRIOT Act.

I conclude from this that fear of terrorist acts had little or nothing to do with the PA’s disemboweling of Constitutional protections. You conclude what you want.

Update: Glenn Greenwald now agrees that nothing about this was “accidental”.

The idea that this is just about some sort of bureaucratic negligence with some petty record-keeping requirements — a defense being mounted by Bush followers [and the FBI itself, let’s not forget – MA]– is just insultingly stupid. The NSLs have been a source of intense controversy for years. Their potential for abuse is self-evident. And yet the FBI has created systems which allow it to circumvent the few safeguards which exist, and they have exploited that lawless system aggressively and repeatedly — by making clearly false statements and obtaining records they are legally prohibited from obtaining — all, according to the Post report, with the knowledge of many FBI lawyers and other managers, at the very least.

4 responses to “The FBI and NSLs 2: The “Accident” Excuse Unravels (Updated)

  1. He prefer’s Chuck, but otherwise, yeah.

  2. I’m sure he does. “Charlie Grassley” sounds like a junior high weenie’s name. That’s why I prefer the alliteration.

  3. Pingback: The FBI and NSLs 3: How High Does it Go? «

  4. Pingback: Expanded Spying on US Citizens Didn’t Wait for FISA Bill » Comments From Left Field

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