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


Yesterday I asked a couple of simple and, I thought, fairly obvious questions:

Were there any lawyers among the dozen members of the elite CAU [Communications Analysis Unit – MA] 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?

To answer the second question, it turns out there were and they didn’t. In fact, Bassem Youssef, a CT expert with a covert background and several successes to his credit, was in charge of the CAU at the time and says he not only noticed, he “raised concerns with superiors”.

Stephen M. Kohn, the lawyer for Mr. Youssef, said his client told his superiors that the bureau had frequently failed to document an urgent national security need — proving “exigent circumstances,” in the bureau’s language — when obtaining personal information without a court order through the use of “national security letters.”

Mr. Youssef said his superiors had initially minimized the scope of the problem and the likely violation of laws intended to protect privacy, Mr. Kohn said.

“He identified the problems in 2005, shortly after he became unit chief,” Mr. Kohn said. “As in other matters, he was met with apathy and resistance.”

***

Mr. Kohn said that Mr. Youssef had had a long familiarity with national security letters from earlier work on counterterrorism investigations, and that he began reviewing recent letters and spotting legal deficiencies almost immediately.

“It was the same issue that was in the inspector general’s report,” Mr. Kohn said Sunday. “They didn’t have the proper legal justifications in writing to back up their searches.”

If Mr Youssef was in charge of the CAU and most of the disputed NSLs were submitted by the CAU, why didn’t he simply stop them? Why didn’t he call in the agents who were improperly filing and sending the NSLs and order them to correct the procedure or cease using them?

To answer those questions, we have to know the answers to two other key questions:

  1. Who were the “superiors” in question? Mueller? Or does it go higher?
  2. Why did Youssef feel it necessary to express his “concerns” about the NSLs to them? It was his department, he was in charge, why not just end the abuse?

So far, Youssef hasn’t named the superiors he informed, but to the second question there seem to be two primary motivations: either he’s passing the buck upstairs or else his unit was told to use the NSLs by those same superiors.

Both are plausible, I suppose, but it is the second possibility that grabs you. It fits the Bush Administration/Gonzales DOJ’s standard preference for secrecy and top-down decision-making. The BA, as we have seen quite clearly in the Gonzales 8 Scandal and the Libby Scandal, demands loyalty and defines it as unquestioning obedience to admin objectives no matter how legally dubious or overtly political they might be. In the former they fired prosecutors for refusing to invent voter-fraud cases against Democrats right before the election for which there was no evidence, and in the latter they outed a covert CIA operative for political revenge and ordered Libby to cover it up.

It also lines up with the BA’s willingness to use whatever comes to hand to get what it wants. As Kyle Sampson put it in an email, “What’s the point of having the [power] if we don’t use it?”

The White House’s internal hierarchy, it is emerging, doesn’t start with Bush, who more and more appears to be nothing but a PR figurehead in his own govt, but with Li’l Dick Cheney and Karl Rove. Every time we follow a line of responsibility back to its point of origin, we wind up in one of those two offices.

If we take Mr Youssef at his word – and I see no reason not to so far – who exactly did he complain to? More importantly, where were their marching orders coming from?

It’s even more crucial to answer those two questions given the Constitutional context. In the Glenn Greenwald post I linked to yesterday, he laments that “there has, thus far, been too little appreciation for just how serious and threatening this rampant FBI lawbreaking really is”, and then explains just what makes it significant.

In essence, the FBI and our nation’s telecommunications companies have secretly created a framework whereby the FBI can obtain — instantaneously and without limits — any information it asks for. The Patriot Act already substantially expanded the circumstances under which the FBI can obtain such records without the need for subpoenas or any judicial process, and it left in place only the most minimal limitations and protections. But it is those very minimal safeguards which the FBI continuously violated in order to obtain whatever information its agents desired, about any Americans they targeted, with literally no limits of any kind.

In order to obtain telephone records within this FBI-telecom framework, FBI agents have been simply furnishing letters to the telecom companies — not even NSLs, just plain letters from an agent — assuring the telecom companies that (a) the records were needed immediately due to “exigent circumstances” and (b) a subpoena for the records had been submitted to the U.S. Attorneys Office and was in the process of being finalized. Upon receiving that letter, the telecoms provided any records the FBI requested — instantaneously, via computer.

If you happen to be laboring under the misapprehension – forgivable, what with the MSM and even the majority of the blogosphere getting all caught up in the Gonzales 8 Circus to the exclusion of almost everything else – that the NSL Scandal is a tempest-in-a-teapot, go read the rest of Glenn’s piece and be disabused of that notion forever.

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