In hunt for terrorists, FBI examines records of ordinary Americans
Article published Nov 7, 2005
In hunt for terrorists, FBI examines records of ordinary Americans
By BARTON GELLMAN
The Washington Post
WASHINGTON - The FBI came calling in Windsor, Conn., this summer with a document marked for delivery by hand. On Matianuk Avenue, across from the tennis courts, two special agents found their man. They gave George Christian the letter, which warned him to tell no one, ever, what it said.
Under the shield and stars of the FBI crest, the letter directed Christian to surrender "all subscriber information, billing information and access logs of any person" who used a specific computer at a library branch some distance away. Christian, who manages digital records for three dozen Connecticut libraries, said in an affidavit that he configures his system for privacy. But the vendors of the software he operates said their databases can reveal the Web sites that visitors browse, the e-mail accounts they open and the books they borrow.
Christian refused to hand over those records, and his employer, Library Connection Inc., filed suit for the right to protest the FBI demand in public. The Washington Post established their identities -still under seal in the U.S. Court of Appeals for the 2nd Circuit - by comparing unsealed portions of the file with public records and information gleaned from people who had no knowledge of the FBI demand.
The Connecticut case affords a rare glimpse of an exponentially growing practice of domestic surveillance under the USA Patriot Act, which recently marked its fourth anniversary. "National security letters," created in the 1970s for espionage and terrorism investigations, originated as narrow exceptions in consumer privacy law, enabling the FBI to review in secret the customer records of suspected foreign agents. The Patriot Act, and Bush administration guidelines for its use, transformed those letters by permitting clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies.
The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters are extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans.
Issued by FBI field supervisors, national security letters do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress. The executive branch maintains only statistics, which are incomplete and confined to classified reports. The Bush administration defeated legislation and a lawsuit to require a public accounting, and it has offered no example in which the use of a national security letter disrupted a terrorist plot.
The burgeoning use of national security letters coincides with an unannounced decision to deposit all the information they yield into government data banks - and to share those records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush expanded access to those files for "state, local and tribal" governments and for "appropriate private sector entities."
National security letters offer a case study of the impact of the Patriot Act outside the spotlight of political debate. Drafted after the Sept. 11, 2001, attacks, the law's 132 pages wrought scores of changes in the landscape of intelligence and law enforcement. Many received far more attention than the amendments to a seemingly pedestrian power to review "transactional records." But few if any other provisions touch as many ordinary Americans without their knowledge.
Senior FBI officials acknowledged in interviews that the proliferation of national security letters results primarily from the bureau's new authority to collect intimate facts about people who are not suspected of wrongdoing. Criticized for failure to detect the Sept. 11 plot, the bureau now casts a much wider net, using national security letters to generate leads and to pursue them. Casual or unwitting contact with a suspect may attract the attention of investigators and subject a person to scrutiny he never even learns about.
A national security letter cannot be used to authorize eavesdropping or to read e-mail. But it does permit investigators to trace revealing paths through the private affairs of a modern digital citizen. The records it gathers describe where a person makes and spends money, with whom he lives, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web and who telephones or e-mails him.
As it wrote the Patriot Act four years ago, Congress bought time and leverage for oversight by placing an expiration date on 16 provisions. The changes involving national security letters were not among them. In fact, as the Dec. 31 deadline approaches and Congress prepares to renew the expiring provisions, lawmakers are poised to amplify the FBI's power to compel the secret production of private records.
The House and Senate have voted to make noncompliance with a national security letter a criminal offense. The House would also impose a prison term for breach of secrecy.
Like many Patriot Act provisions, the ones involving national security letters have been debated in largely abstract terms. The Justice Department has offered no concrete information, save for a partial count of the number of letters delivered. The statistics do not cover all forms of national security letters or all U.S. agencies making use of them.
"The beef with the NSLs is that they don't have even a pretense of judicial or impartial scrutiny," said former representative Robert Barr Jr. of Georgia, who finds himself allied with the American Civil Liberties Union after a career as prosecutor, CIA analyst and conservative GOP stalwart. "There's no checks and balances whatever on them. It is simply some bureaucrat's decision that they want information, and they can basically just go and get it."
'Specific and articulable'
Career investigators and Bush administration officials emphasized, in congressional testimony and interviews for this story, that national security letters are for hunting terrorists, not fishing through the private lives of the innocent. The distinction is not as clear in practice.
Under the old legal test, the FBI needed "specific and articulable"reasons to believe the records it gathered in secret belonged to a terrorist or a spy. Now the bureau needs only to certify that the records are "sought for" or "relevant to" an investigation "to protect against international terrorism or clandestine intelligence activities."
That standard enables investigators to look for conspirators by sifting the records of nearly anyone who crosses a suspect's path.
"If you have a list of, say, 20 telephone numbers that have come up. . . on a bad guy's telephone," said Valerie Caproni, the FBI's general counsel, "you want to find out who he's in contact with." Investigators will say, "'Okay, phone company, give us subscriber information and toll records on these 20 telephone numbers,' and that can easily be 100."
Since the Patriot Act, the FBI has dispersed the authority to sign national security letters to more than five dozen officials. FBI rules established after the Patriot Act allow the letters to be issued long before a case is judged substantial enough for a "full field investigation." Agents commonly use the letters in "preliminary investigations"that precede a decision to launch an investigation.
If agents had to wait for grounds to suspect a person of ill intent, said Joseph Billy Jr., the FBI's deputy assistant director for counter-terrorism, they would already know what they want to find out with a national security letter. "We're trying to determine if someone warrants scrutiny or doesn't," he said.
Billy said he understands that "merely being in a government or FBI database . . . gives everybody, you know, neck hair standing up."Innocent Americans, he said, "should take comfort at least knowing that it is done under a great deal of investigative care, oversight, within the parameters of the law."
'Least intrusive means'
In Room 7975 of the J. Edgar Hoover Building,the chief of the FBI's national security law unit sat down at his keyboard about a month after the Patriot Act became law. Michael Woods had helped devise the FBI wish list for surveillance powers. Now he offered a caution.
"NSLs are powerful investigative tools, in that they can compel the production of substantial amounts of relevant information," he wrote in a Nov. 28, 2001, "electronic communication" to the FBI's 56 field offices. "However, they must be used judiciously." Standing guidelines, he wrote, "require that the FBI accomplish its investigations through the 'least intrusive' means. . . . The greater availability of NSLs does not mean that they should be used in every case."
Woods, who left government service in 2002, added a practical consideration. Legislators granted the new authority and could as easily take it back. When making that decision, he wrote, "Congress certainly will examine the manner in which the FBI exercised it."
Looking back last month, Woods was struck by how starkly he misjudged the climate. The FBI disregarded his warning, and no one noticed. "This is not something that should be automatically done because it's easy," he said. "We need to be sure we don't go overboard."
One thing Woods did not anticipate was then-Attorney General John Ashcroft's revision of Justice Department guidelines. On May 30, 2002, and Oct. 31, 2003, Ashcroft rewrote the playbooks for investigations of terrorist crimes and national security threats.
Ashcroft remained bound by Executive Order 12333, which requires the use of the "least intrusive means" in domestic intelligence investigations. But his new interpretation came close to upending the mandate. Three times in the new guidelines, Ashcroft wrote that the FBI "should consider . . . less intrusive means" but "should not hesitate to use any lawful techniques . . . even if intrusive" when investigators believe them to be more timely.
The need for speed
As the Justice Department prepared congressional testimony this year, FBI headquarters searched for examples that would show how expanded surveillance powers made a difference. Michael Mason, who runs the Washington field office, found no ready answer.
"I'd love to have a made-for-Hollywood story, but I don't have one,"Mason said.
What national security letters give his agents, Mason said, is speed. "I have 675 terrorism cases,"he said. "Every one of these is a potential threat. And anything I can do to get to the bottom of any one of them more quickly gets me closer to neutralizing a potential threat."
Because recipients are permanently barred from disclosing the letters, outsiders can make no assessment of their relevance.
Woods, the former FBI lawyer, said secrecy is essential when an investigation begins because "it would defeat the whole purpose" to tip off a suspected terrorist, but national security seldom requires that the secret be kept forever.
To establish the "relevance" of the information they seek, agents face a test so basic it is hard to fail. A model request for a supervisor's signature offers this one-sentence suggestion: "This subscriber information is being requested to determine the individuals or entities that the subject has been in contact with during the past six months."
Edward Williams, chief division counsel in Mason's office, would not say how many requests, if any, are rejected.
What constitutes abuse?
Those who favor the new rules maintain - as Kansas Sen. Pat Roberts, chairman of the Senate Select Committee on Intelligence, said - that "there has not been one substantiated allegation of abuse of these lawful intelligence tools."
What the Bush administration means by abuse is unauthorized use of surveillance data - for example, to blackmail an enemy or track an estranged spouse. What troubles critics, however, is not unofficial abuse but the official and routine intrusion into private lives.
To Jeffrey Breinholt, deputy chief of the Justice Department's counter-terrorism section, civil liberties objections "are eccentric." Data collection on the innocent, he said, does no harm unless "someone (decides) to act on the information, put you on a no-fly list or something." He added: "It's a pretty small chance."
Barr, the former congressman, said that "the abuse is in the power itself."
"As a conservative," he said, "I really resent an administration that calls itself conservative taking the position that the burden is on the citizen to show the government has abused power, and otherwise shut up and comply."
At the ACLU, staff attorney Jameel Jaffer spoke of "the profound chilling effect" of this kind of surveillance: "If the government monitors the Web sites that people visit and the books that they read, people will stop visiting disfavored Web sites and stop reading disfavored books."
Two years ago, Ashcroft rescinded a 1995 guideline directing that information obtained through a national security letter about a U.S. citizen or resident "shall be destroyed by the FBI and not further disseminated" if it proves "not relevant to the purposes for which it was collected." Ashcroft's new order was that "the FBI shall retain" all records it collects and "may disseminate" them among federal agencies.
The same order directed the FBI to develop "data mining" technology to probe for hidden links among the people in its growing cache of electronic files. According to an FBI report, the bureau's office of intelligence began operating in January 2004 a new Investigative Data Warehouse, based on the same Oracle technology used by the CIA. The CIA is generally forbidden to keep such files on Americans.
Data mining intensifies the impact of national security letters, because anyone's personal files can be repeatedly scrutinized without a fresh need to establish relevance.
"The composite picture of a person which emerges from transactional information is more telling than the direct content of your speech," said Woods, the former FBI lawyer. "That's certainly not been lost on the intelligence community and the FBI."
Ashcroft's guidelines allowed the FBI for the first time to add to government files consumer data from commercial providers such as LexisNexis. Previous attorneys general had decided that such a move would violate the Privacy Act.
Orange alert
The bureau displayed its ambition for data mining in an emergency operation at the end of 2003.
The Department of Homeland Security declared an orange alert on Dec. 21 of that year, in part because of intelligence that hinted at an attack in Las Vegas. The identities of the plotters were unknown.
The FBI sent Gurvais Grigg, chief of the bureau's Proactive Data Exploitation Unit, in an audacious effort to assemble a real-time census of every visitor in the city. An average of 300,000 tourists a day stayed an average of four days each, presenting Grigg's team with close to a million potential suspects in the ensuing two weeks.
An interagency task force began pulling together the records of every hotel guest, everyone who rented a car, every lease on a storage space, and every airplane passenger who landed in the city. Grigg's unit filtered that population for leads. Any link to the terrorist universe could give investigators a start.
Investigators began with emergency requests for help from the city's sprawling hospitality industry.
Investigators turned to national security letters and grand jury subpoenas when friendly persuasion did not work.
Early in the operation, according to participants, the FBI gathered casino executives and asked for guest lists. The MGM Mirage company, followed by others, balked.
"Some casinos were saying no to consent (and said), 'You have to produce a piece of paper,'" said Jeff Jonas, chief scientist at IBM Entity Analytics. "They don't just market 'What happens in Vegas stays in Vegas.' They want it to be true."
The operation remained secret for about a week. Then casino sources told Rod Smith, gaming editor of the Las Vegas Review-Journal, that the FBI had served national security letters on them. In an interview for this article, one former casino executive confirmed the use of a national security letter. Details remain elusive.
What happened in Vegas stayed in federal data banks: None of the information has been purged.
Grigg's operation found no suspect, and the orange alert ended on Jan. 10, 2004. "The whole thing washed out," one participant said.
A university balks
At around the time the FBI found George Christian in Connecticut, agents paid an urgent call on the chemical engineering department at North Carolina State University in Raleigh. They were looking for information about a former student named Magdy Nashar, then suspected in the July 7 London subway bombing but since cleared.
University officials said that the FBI tried to use a national security letter to demand much more information than the law allows.
David Drooz, the university's senior associate counsel, said special authority is required for the surrender of records protected by educational and medical privacy. The FBI's first request, a July 14 grand jury subpoena, did not appear to supply that authority, Drooz said, and the university did not honor it. Referring to notes he took that day, Drooz said Eric Davis, the FBI's top lawyer in Charlotte, "was focused very much on the urgency" and "he even indicated the case was of interest to President Bush."
The next day, FBI agents arrived with a national security letter. Drooz said it demanded all records of Nashar's admission, housing, emergency contacts, use of health services and extracurricular activities. University lawyers "looked up what law we could on the fly," he said. They discovered that the FBI was demanding files that national security letters have no power to obtain.
Soon afterward, the FBI returned with a new subpoena. It was the same as the first one, Drooz said, and the university still had doubts about its legal sufficiency. This time, however, it summoned Drooz to appear personally. The tactic was "a bit heavy-handed," Drooz said, "the implication being you're subject to contempt of court." Drooz surrendered the records.
A high-ranking FBI official acknowledged that the field office erred in attempting to use a national security letter. Investigators, he said, "were in a big hurry for obvious reasons" and did not approach the university "in the exact right way."
'Embarrassing or personal'
The electronic docket in the Connecticut case, as the New York Times first reported, briefly titled the lawsuit Library Connection Inc. v. Gonzales. Because identifying details were not supposed to be left in the public file, the court soon replaced the plaintiff's name with "John Doe."
George Christian, Library Connection's executive director, is identified in his affidavit as "John Doe 2."In it, he said people often come to libraries for information that is "highly sensitive, embarrassing or personal." He wanted to fight the FBI but feared calling a lawyer because the letter said he could not disclose its existence to "any person." He consulted Peter Chase, vice president of Library Connection and chairman of a state intellectual freedom committee. Chase -"John Doe 1"- advised Christian to call the ACLU. Both men declined to be interviewed for this story.
U.S. District Judge Janet Hall ruled in September that the FBI gag order violates Christian's, and Library Connection's, First Amendment rights. A three-judge panel heard oral argument on Wednesday in the government's appeal.
The Justice Department, meanwhile, has tried to conceal the existence of the first and only other known lawsuit against a national security letter, also brought by the ACLU. Government lawyers opposed its entry into the public docket of a federal judge. They have since tried to censor nearly all contents of exhibits and briefs.
By BARTON GELLMAN
The Washington Post
http://www.concordmonitor.com/apps/pbcs.dll/article?AID=/20051107/REPOSITORY/511070329/1031
In hunt for terrorists, FBI examines records of ordinary Americans
By BARTON GELLMAN
The Washington Post
WASHINGTON - The FBI came calling in Windsor, Conn., this summer with a document marked for delivery by hand. On Matianuk Avenue, across from the tennis courts, two special agents found their man. They gave George Christian the letter, which warned him to tell no one, ever, what it said.
Under the shield and stars of the FBI crest, the letter directed Christian to surrender "all subscriber information, billing information and access logs of any person" who used a specific computer at a library branch some distance away. Christian, who manages digital records for three dozen Connecticut libraries, said in an affidavit that he configures his system for privacy. But the vendors of the software he operates said their databases can reveal the Web sites that visitors browse, the e-mail accounts they open and the books they borrow.
Christian refused to hand over those records, and his employer, Library Connection Inc., filed suit for the right to protest the FBI demand in public. The Washington Post established their identities -still under seal in the U.S. Court of Appeals for the 2nd Circuit - by comparing unsealed portions of the file with public records and information gleaned from people who had no knowledge of the FBI demand.
The Connecticut case affords a rare glimpse of an exponentially growing practice of domestic surveillance under the USA Patriot Act, which recently marked its fourth anniversary. "National security letters," created in the 1970s for espionage and terrorism investigations, originated as narrow exceptions in consumer privacy law, enabling the FBI to review in secret the customer records of suspected foreign agents. The Patriot Act, and Bush administration guidelines for its use, transformed those letters by permitting clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies.
The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters are extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans.
Issued by FBI field supervisors, national security letters do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress. The executive branch maintains only statistics, which are incomplete and confined to classified reports. The Bush administration defeated legislation and a lawsuit to require a public accounting, and it has offered no example in which the use of a national security letter disrupted a terrorist plot.
The burgeoning use of national security letters coincides with an unannounced decision to deposit all the information they yield into government data banks - and to share those records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush expanded access to those files for "state, local and tribal" governments and for "appropriate private sector entities."
National security letters offer a case study of the impact of the Patriot Act outside the spotlight of political debate. Drafted after the Sept. 11, 2001, attacks, the law's 132 pages wrought scores of changes in the landscape of intelligence and law enforcement. Many received far more attention than the amendments to a seemingly pedestrian power to review "transactional records." But few if any other provisions touch as many ordinary Americans without their knowledge.
Senior FBI officials acknowledged in interviews that the proliferation of national security letters results primarily from the bureau's new authority to collect intimate facts about people who are not suspected of wrongdoing. Criticized for failure to detect the Sept. 11 plot, the bureau now casts a much wider net, using national security letters to generate leads and to pursue them. Casual or unwitting contact with a suspect may attract the attention of investigators and subject a person to scrutiny he never even learns about.
A national security letter cannot be used to authorize eavesdropping or to read e-mail. But it does permit investigators to trace revealing paths through the private affairs of a modern digital citizen. The records it gathers describe where a person makes and spends money, with whom he lives, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web and who telephones or e-mails him.
As it wrote the Patriot Act four years ago, Congress bought time and leverage for oversight by placing an expiration date on 16 provisions. The changes involving national security letters were not among them. In fact, as the Dec. 31 deadline approaches and Congress prepares to renew the expiring provisions, lawmakers are poised to amplify the FBI's power to compel the secret production of private records.
The House and Senate have voted to make noncompliance with a national security letter a criminal offense. The House would also impose a prison term for breach of secrecy.
Like many Patriot Act provisions, the ones involving national security letters have been debated in largely abstract terms. The Justice Department has offered no concrete information, save for a partial count of the number of letters delivered. The statistics do not cover all forms of national security letters or all U.S. agencies making use of them.
"The beef with the NSLs is that they don't have even a pretense of judicial or impartial scrutiny," said former representative Robert Barr Jr. of Georgia, who finds himself allied with the American Civil Liberties Union after a career as prosecutor, CIA analyst and conservative GOP stalwart. "There's no checks and balances whatever on them. It is simply some bureaucrat's decision that they want information, and they can basically just go and get it."
'Specific and articulable'
Career investigators and Bush administration officials emphasized, in congressional testimony and interviews for this story, that national security letters are for hunting terrorists, not fishing through the private lives of the innocent. The distinction is not as clear in practice.
Under the old legal test, the FBI needed "specific and articulable"reasons to believe the records it gathered in secret belonged to a terrorist or a spy. Now the bureau needs only to certify that the records are "sought for" or "relevant to" an investigation "to protect against international terrorism or clandestine intelligence activities."
That standard enables investigators to look for conspirators by sifting the records of nearly anyone who crosses a suspect's path.
"If you have a list of, say, 20 telephone numbers that have come up. . . on a bad guy's telephone," said Valerie Caproni, the FBI's general counsel, "you want to find out who he's in contact with." Investigators will say, "'Okay, phone company, give us subscriber information and toll records on these 20 telephone numbers,' and that can easily be 100."
Since the Patriot Act, the FBI has dispersed the authority to sign national security letters to more than five dozen officials. FBI rules established after the Patriot Act allow the letters to be issued long before a case is judged substantial enough for a "full field investigation." Agents commonly use the letters in "preliminary investigations"that precede a decision to launch an investigation.
If agents had to wait for grounds to suspect a person of ill intent, said Joseph Billy Jr., the FBI's deputy assistant director for counter-terrorism, they would already know what they want to find out with a national security letter. "We're trying to determine if someone warrants scrutiny or doesn't," he said.
Billy said he understands that "merely being in a government or FBI database . . . gives everybody, you know, neck hair standing up."Innocent Americans, he said, "should take comfort at least knowing that it is done under a great deal of investigative care, oversight, within the parameters of the law."
'Least intrusive means'
In Room 7975 of the J. Edgar Hoover Building,the chief of the FBI's national security law unit sat down at his keyboard about a month after the Patriot Act became law. Michael Woods had helped devise the FBI wish list for surveillance powers. Now he offered a caution.
"NSLs are powerful investigative tools, in that they can compel the production of substantial amounts of relevant information," he wrote in a Nov. 28, 2001, "electronic communication" to the FBI's 56 field offices. "However, they must be used judiciously." Standing guidelines, he wrote, "require that the FBI accomplish its investigations through the 'least intrusive' means. . . . The greater availability of NSLs does not mean that they should be used in every case."
Woods, who left government service in 2002, added a practical consideration. Legislators granted the new authority and could as easily take it back. When making that decision, he wrote, "Congress certainly will examine the manner in which the FBI exercised it."
Looking back last month, Woods was struck by how starkly he misjudged the climate. The FBI disregarded his warning, and no one noticed. "This is not something that should be automatically done because it's easy," he said. "We need to be sure we don't go overboard."
One thing Woods did not anticipate was then-Attorney General John Ashcroft's revision of Justice Department guidelines. On May 30, 2002, and Oct. 31, 2003, Ashcroft rewrote the playbooks for investigations of terrorist crimes and national security threats.
Ashcroft remained bound by Executive Order 12333, which requires the use of the "least intrusive means" in domestic intelligence investigations. But his new interpretation came close to upending the mandate. Three times in the new guidelines, Ashcroft wrote that the FBI "should consider . . . less intrusive means" but "should not hesitate to use any lawful techniques . . . even if intrusive" when investigators believe them to be more timely.
The need for speed
As the Justice Department prepared congressional testimony this year, FBI headquarters searched for examples that would show how expanded surveillance powers made a difference. Michael Mason, who runs the Washington field office, found no ready answer.
"I'd love to have a made-for-Hollywood story, but I don't have one,"Mason said.
What national security letters give his agents, Mason said, is speed. "I have 675 terrorism cases,"he said. "Every one of these is a potential threat. And anything I can do to get to the bottom of any one of them more quickly gets me closer to neutralizing a potential threat."
Because recipients are permanently barred from disclosing the letters, outsiders can make no assessment of their relevance.
Woods, the former FBI lawyer, said secrecy is essential when an investigation begins because "it would defeat the whole purpose" to tip off a suspected terrorist, but national security seldom requires that the secret be kept forever.
To establish the "relevance" of the information they seek, agents face a test so basic it is hard to fail. A model request for a supervisor's signature offers this one-sentence suggestion: "This subscriber information is being requested to determine the individuals or entities that the subject has been in contact with during the past six months."
Edward Williams, chief division counsel in Mason's office, would not say how many requests, if any, are rejected.
What constitutes abuse?
Those who favor the new rules maintain - as Kansas Sen. Pat Roberts, chairman of the Senate Select Committee on Intelligence, said - that "there has not been one substantiated allegation of abuse of these lawful intelligence tools."
What the Bush administration means by abuse is unauthorized use of surveillance data - for example, to blackmail an enemy or track an estranged spouse. What troubles critics, however, is not unofficial abuse but the official and routine intrusion into private lives.
To Jeffrey Breinholt, deputy chief of the Justice Department's counter-terrorism section, civil liberties objections "are eccentric." Data collection on the innocent, he said, does no harm unless "someone (decides) to act on the information, put you on a no-fly list or something." He added: "It's a pretty small chance."
Barr, the former congressman, said that "the abuse is in the power itself."
"As a conservative," he said, "I really resent an administration that calls itself conservative taking the position that the burden is on the citizen to show the government has abused power, and otherwise shut up and comply."
At the ACLU, staff attorney Jameel Jaffer spoke of "the profound chilling effect" of this kind of surveillance: "If the government monitors the Web sites that people visit and the books that they read, people will stop visiting disfavored Web sites and stop reading disfavored books."
Two years ago, Ashcroft rescinded a 1995 guideline directing that information obtained through a national security letter about a U.S. citizen or resident "shall be destroyed by the FBI and not further disseminated" if it proves "not relevant to the purposes for which it was collected." Ashcroft's new order was that "the FBI shall retain" all records it collects and "may disseminate" them among federal agencies.
The same order directed the FBI to develop "data mining" technology to probe for hidden links among the people in its growing cache of electronic files. According to an FBI report, the bureau's office of intelligence began operating in January 2004 a new Investigative Data Warehouse, based on the same Oracle technology used by the CIA. The CIA is generally forbidden to keep such files on Americans.
Data mining intensifies the impact of national security letters, because anyone's personal files can be repeatedly scrutinized without a fresh need to establish relevance.
"The composite picture of a person which emerges from transactional information is more telling than the direct content of your speech," said Woods, the former FBI lawyer. "That's certainly not been lost on the intelligence community and the FBI."
Ashcroft's guidelines allowed the FBI for the first time to add to government files consumer data from commercial providers such as LexisNexis. Previous attorneys general had decided that such a move would violate the Privacy Act.
Orange alert
The bureau displayed its ambition for data mining in an emergency operation at the end of 2003.
The Department of Homeland Security declared an orange alert on Dec. 21 of that year, in part because of intelligence that hinted at an attack in Las Vegas. The identities of the plotters were unknown.
The FBI sent Gurvais Grigg, chief of the bureau's Proactive Data Exploitation Unit, in an audacious effort to assemble a real-time census of every visitor in the city. An average of 300,000 tourists a day stayed an average of four days each, presenting Grigg's team with close to a million potential suspects in the ensuing two weeks.
An interagency task force began pulling together the records of every hotel guest, everyone who rented a car, every lease on a storage space, and every airplane passenger who landed in the city. Grigg's unit filtered that population for leads. Any link to the terrorist universe could give investigators a start.
Investigators began with emergency requests for help from the city's sprawling hospitality industry.
Investigators turned to national security letters and grand jury subpoenas when friendly persuasion did not work.
Early in the operation, according to participants, the FBI gathered casino executives and asked for guest lists. The MGM Mirage company, followed by others, balked.
"Some casinos were saying no to consent (and said), 'You have to produce a piece of paper,'" said Jeff Jonas, chief scientist at IBM Entity Analytics. "They don't just market 'What happens in Vegas stays in Vegas.' They want it to be true."
The operation remained secret for about a week. Then casino sources told Rod Smith, gaming editor of the Las Vegas Review-Journal, that the FBI had served national security letters on them. In an interview for this article, one former casino executive confirmed the use of a national security letter. Details remain elusive.
What happened in Vegas stayed in federal data banks: None of the information has been purged.
Grigg's operation found no suspect, and the orange alert ended on Jan. 10, 2004. "The whole thing washed out," one participant said.
A university balks
At around the time the FBI found George Christian in Connecticut, agents paid an urgent call on the chemical engineering department at North Carolina State University in Raleigh. They were looking for information about a former student named Magdy Nashar, then suspected in the July 7 London subway bombing but since cleared.
University officials said that the FBI tried to use a national security letter to demand much more information than the law allows.
David Drooz, the university's senior associate counsel, said special authority is required for the surrender of records protected by educational and medical privacy. The FBI's first request, a July 14 grand jury subpoena, did not appear to supply that authority, Drooz said, and the university did not honor it. Referring to notes he took that day, Drooz said Eric Davis, the FBI's top lawyer in Charlotte, "was focused very much on the urgency" and "he even indicated the case was of interest to President Bush."
The next day, FBI agents arrived with a national security letter. Drooz said it demanded all records of Nashar's admission, housing, emergency contacts, use of health services and extracurricular activities. University lawyers "looked up what law we could on the fly," he said. They discovered that the FBI was demanding files that national security letters have no power to obtain.
Soon afterward, the FBI returned with a new subpoena. It was the same as the first one, Drooz said, and the university still had doubts about its legal sufficiency. This time, however, it summoned Drooz to appear personally. The tactic was "a bit heavy-handed," Drooz said, "the implication being you're subject to contempt of court." Drooz surrendered the records.
A high-ranking FBI official acknowledged that the field office erred in attempting to use a national security letter. Investigators, he said, "were in a big hurry for obvious reasons" and did not approach the university "in the exact right way."
'Embarrassing or personal'
The electronic docket in the Connecticut case, as the New York Times first reported, briefly titled the lawsuit Library Connection Inc. v. Gonzales. Because identifying details were not supposed to be left in the public file, the court soon replaced the plaintiff's name with "John Doe."
George Christian, Library Connection's executive director, is identified in his affidavit as "John Doe 2."In it, he said people often come to libraries for information that is "highly sensitive, embarrassing or personal." He wanted to fight the FBI but feared calling a lawyer because the letter said he could not disclose its existence to "any person." He consulted Peter Chase, vice president of Library Connection and chairman of a state intellectual freedom committee. Chase -"John Doe 1"- advised Christian to call the ACLU. Both men declined to be interviewed for this story.
U.S. District Judge Janet Hall ruled in September that the FBI gag order violates Christian's, and Library Connection's, First Amendment rights. A three-judge panel heard oral argument on Wednesday in the government's appeal.
The Justice Department, meanwhile, has tried to conceal the existence of the first and only other known lawsuit against a national security letter, also brought by the ACLU. Government lawyers opposed its entry into the public docket of a federal judge. They have since tried to censor nearly all contents of exhibits and briefs.
By BARTON GELLMAN
The Washington Post
http://www.concordmonitor.com/apps/pbcs.dll/article?AID=/20051107/REPOSITORY/511070329/1031
posted by JimG at 5:26 PM
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