Senate Launches First Major Effort To Rein In Use Of National Security Letters

[Our guest blogger, Peter Swire, is a senior fellow at the Center for American Progress and served as the Clinton Administration’s Chief Counselor for Privacy. He will be testifying today before Sen. Feingold’s Judiciary Subcommittee on the FBI’s abuse of National Security Letters. Watch the hearing live or read Swire’s testimony.]

The Inspector General for the Department of Justice recently released a Congressionally-mandated report about the FBI’s abuse of National Security Letters. Even the FBI’s own General Counsel has now admitted the Bureau “got an F report card.” The report found that a startling 22 percent of the NSLs reviewed violated the law. The report also found serious under-reporting of the number of NSLs to the Congress.

One of the worst problems is the way the Bush Administration has misled the public and the Congress about this program. A March 2003 front-page story in the Washington Post reported:

“The FBI, for example, has issued scores of ‘national security letters’ that required businesses to turn over electronic records about finances, telephone calls, e-mail and other personal information, according to officials and documents.”

“Scores” of letters, said the officials in 2003. According to the latest IG Report, however, we now know the number for 2003 alone was at least 39,000.

Here are some key points to keep in mind:

1. The Patriot Act fundamentally changed the nature of NSLs, in ways that create unprecedented legal powers and pose serious risks to privacy and civil liberties.

2. Congress has never agreed to anything like the current scale and scope of NSLs.

3. The gag rule under NSLs, where it is a crime to tell your family or colleagues that you have turned over records, is an especially serious departure from good law and past precedent.

4. Amendments such as those in the SAFE Act [S.737 from last Congress] and H.R. 1739 [this Congress] provide desirable alternatives to the current legal rules. We should also have a new “Statement of Rights and Responsibilities” so that people holding records know they have a right to consult an attorney and appeal an NSL to court.

In short, the new meaning of NSLs should be: “Never Seen the Like.”

Peter Swire

UPDATE: More at FireDogLake.