FBI slowed terror investigation by using 'secret letter' John Byrne

Published: Tuesday April 15, 2008



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Print This Email This Documents undermine FBI defense of 'National Security Letters' The use of National Security Letters by the Bush Administration has long been controversial -- allowing the Justice Department and the FBI to demand financial and telephone records, e-mails and conduct surveillance without the supervision of a court. The FBI says these letters are critical to law enforcement, because it allows the agency to act in a more timely manner with regard to terrorist suspects than waiting for a court-issued warrant. But new documents, obtained by the Electronic Frontier Foundation, seem to upend that claim. In the investigation of a student suspected of links to terrorism, the FBI delayed its own investigation by employing an improper NSL to seek information on the suspect, at the direction of FBI Headquarters. The FBI failed to report the misuse for almost two years. The report comes on the eve of hearings in the House and Senate on the misuse of the letters. "This report raises important questions about the FBI's use of these very powerful investigative tools," said EFF Senior Staff Attorney Kurt Opsahl. "Congress should determine why FBI headquarters insisted on an improper NSL instead of using the appropriate tools, and why the FBI failed to report the misuse for almost two years." More from the Electronic Frontier Foundation: In the report, EFF used documents obtained through a Freedom of Information Act (FOIA) request coupled with public information to detail the bizarre turns in the FBI's investigation of a former North Carolina State University student. Over the span of three days in July of 2005, FBI documents show that the bureau first obtained the educational records of the suspect with a grand jury subpoena. However, at the direction of FBI headquarters, agents returned the records and then requested them again through an improper NSL.



As expanded by the PATRIOT Act, the FBI can use NSLs to get private records about anyone's domestic phone calls, e-mails and financial transactions without any court approval -- as long as it claims the information could be relevant to a terrorism or espionage investigation. However, NSL authority does not allow the government to seek educational records, and the university refused the request. The FBI finally obtained the documents again through a second grand jury subpoena. Later in July of 2005, FBI Director Robert Mueller used the delay in gathering the records as an example of why the FBI needed administrative subpoena power instead of NSLs so investigations could move faster.



"The FBI consistently asks for more power and less outside supervision," said Opsahl. "Yet here the NSL power was misused at the direction of FBI headquarters, and only after review by FBI lawyers. Oversight and legislative reforms are necessary to ensure that these powerful tools are not abused."

The EFF report, and the documents referenced, can be found here.