the patriot act revisited

Dana Sun, 06 Nov 2005 16:26:57 -0800

This is an example of how I fear the Bush administration is using the
public's short attention span to circumvent the Constitution. I know it's
politics and some of you are sick of politics, but I really do think it's
important.

Dana
The FBI's Secret Scrutiny In Hunt for Terrorists, Bureau Examines Records
of Ordinary Americans

By Barton Gellman
Washington Post Staff Writer
Sunday, November 6, 2005; Page A01

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.
**
Patriot Act
Primer<http://www.washingtonpost.com/wp-dyn/content/article/2005/11/03/AR2005110301390.html>
The USA PATRIOT Act, approved overwhelmingly by Congress after the Sept. 11,
2001 attacks, greatly expanded the government's power to monitor, search,
detain or deport suspects in terrorism-related investigations. Text of the
USA PATRIOT Act
**
Homeland Security

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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 marked
its fourth anniversary on Oct. 26. "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 -- one of which can be used to sweep up the records of many
people -- 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 has offered no example in which the use of
a national security letter helped disrupt 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 private records widely, in the
federal government and beyond. In late 2003, the Bush administration
reversed a long-standing policy requiring agents to destroy their files on
innocent American citizens, companies and residents when investigations
closed. Late last month, President Bush signed Executive Order 13388,
expanding access to those files for "state, local and tribal" governments
and for "appropriate private sector entities," which are not defined.

National security letters offer a case study of the impact of the Patriot
Act outside the spotlight of political debate. Drafted in haste 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 any
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 as well as to pursue them. Casual or unwitting contact with a suspect
-- a single telephone call, for example -- may attract the attention of
investigators and subject a person to scrutiny about which he never learns.

A national security letter cannot be used to authorize eavesdropping or to
read the contents of e-mail. But it does permit investigators to trace
revealing paths through the private affairs of a modern digital citizen. The
records it yields describe where a person makes and spends money, with whom
he lives and lived before, 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 at home and at work.

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 or make
permanent the expiring provisions, House and Senate conferees are poised
again to amplify the FBI's power to compel the secret surrender 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.
The FBI's Secret Scrutiny

Like many Patriot Act provisions, the ones involving national security
letters have been debated in largely abstract terms. The Justice Department
has offered Congress no concrete information, even in classified form, 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 L. Barr Jr. (Ga.),
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."

*'A Routine Tool'*
------------------------------

**
*Patriot Act
Primer*<http://www.washingtonpost.com/wp-dyn/content/article/2005/11/03/AR2005110301390.html>
The USA PATRIOT Act, approved overwhelmingly by Congress after the Sept. 11,
2001 attacks, greatly expanded the government's power to monitor, search,
detain or deport suspects in terrorism-related investigations. Text of the
USA PATRIOT Act
**
Homeland Security

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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 had to have "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 E. 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."

Bush administration officials compare national security letters to grand
jury subpoenas, which are also based on "relevance" to an inquiry. There are
differences. Grand juries tend to have a narrower focus because they
investigate past conduct, not the speculative threat of unknown future
attacks. Recipients of grand jury subpoenas are generally free to discuss
the subpoenas publicly. And there are strict limits on sharing grand jury
information with government agencies.

Since the Patriot Act, the FBI has dispersed the authority to sign national
security letters to more than five dozen supervisors -- the special agents
in charge of field offices, the deputies in New York, Los Angeles and
Washington, and a few senior headquarters 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 now in "preliminary investigations" and in the "threat
assessments" that precede a decision whether to launch an investigation.

"Congress has given us this tool to obtain basic telephone data, basic
banking data, basic credit reports," said Caproni, who is among the
officials with signature authority. "The fact that a national security
letter is a routine tool used, that doesn't bother me."

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 counterterrorism,
they would already know what they want to find out with a national security
letter. "It's all chicken and egg," he said. "We're trying to determine if
someone warrants scrutiny or doesn't."

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."

He added: "That's not going to satisfy a majority of people, but . . . I've
had people say, you know, 'Hey, I don't care, I've done nothing to be
concerned about. You can have me in your files and that's that.' Some people
take that approach."
The FBI's Secret Scrutiny

*'Don't Go Overboard'*
------------------------------

In Room 7975 of the J. Edgar Hoover Building, around two corners from the
director's suite, 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 J.
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."
**
*Patriot Act
Primer*<http://www.washingtonpost.com/wp-dyn/content/article/2005/11/03/AR2005110301390.html>
The USA PATRIOT Act, approved overwhelmingly by Congress after the Sept. 11,
2001 attacks, greatly expanded the government's power to monitor, search,
detain or deport suspects in terrorism-related investigations. Text of the
USA PATRIOT Act
**
Homeland Security

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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 D.
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. He gave overriding priority
to preventing attacks by any means available.

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. "This
point," he added, "is to be particularly observed in investigations relating
to terrorist activities."

*'Why Do You Want to Know?'*
------------------------------

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 and has the rank of assistant FBI director, found no ready answer.

"I'd love to have a made-for-Hollywood story, but I don't have one," Mason
said. "I am not even sure such an example exists."

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 to Mason's task.
The FBI's Secret Scrutiny

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 or spy, but national security seldom requires that the
secret be kept forever. Even mobster "John Gotti finds out eventually that
he was wiretapped" in a criminal probe, said Peter Swire, the federal
government's chief privacy counselor until 2001. "Anyone caught up in an NSL
investigation never gets notice."

To establish the "relevance" of the information they seek, agents face a
test so basic it is hard to come up with a plausible way to fail. A model
request for a supervisor's signature, according to internal FBI guidelines,
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."
**
*Patriot Act
Primer*<http://www.washingtonpost.com/wp-dyn/content/article/2005/11/03/AR2005110301390.html>
The USA PATRIOT Act, approved overwhelmingly by Congress after the Sept. 11,
2001 attacks, greatly expanded the government's power to monitor, search,
detain or deport suspects in terrorism-related investigations. Text of the
USA PATRIOT Act
**
Homeland Security

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Edward L. Williams, the chief division counsel in Mason's office, said that
supervisors, in practice, "aren't afraid to ask . . . 'Why do you want to
know?' " He would not say how many requests, if any, are rejected.

*'The Abuse Is in the Power Itself'*
------------------------------

Those who favor the new rules maintain -- as Sen. Pat Roberts (R-Kan.),
chairman of the Senate Select Committee on Intelligence, put it in a
prepared statement -- 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. Critics are focused elsewhere. What troubles them is not
unofficial abuse but the official and routine intrusion into private lives.

To Jeffrey Breinholt, deputy chief of the Justice Department's
counterterrorism section, the 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."
Only a serious error, he said, could lead the government, based on nothing
more than someone's bank or phone records, "to freeze your assets or go
after you criminally and you suffer consequences that are irreparable." He
added: "It's a pretty small chance."

"I don't necessarily want somebody knowing what videos I rent or the fact
that I like cartoons," said Mason, the Washington field office chief. But if
those records "are never used against a person, if they're never used to put
him in jail, or deprive him of a vote, et cetera, then what is the
argument?"

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. The FBI
should not have unchecked authority to keep track of who visits
[al-Jazeera's Web site] or who visits the Web site of the Federalist
Society."

*Links in a Chain*
------------------------------

Ready access to national security letters allows investigators to employ
them routinely for "contact chaining."

"Starting with your bad guy and his telephone number and looking at who he's
calling, and [then] who they're calling," the number of people surveilled
"goes up exponentially," acknowledged Caproni, the FBI's general counsel.
But Caproni said it would not be rational for the bureau to follow the chain
too far. "Everybody's connected" if investigators keep tracing calls "far
enough away from your targeted bad guy," she said. "What's the point of
that?"

One point is to fill government data banks for another investigative
technique. That one is called "link analysis," a practice Caproni would
neither confirm nor deny.
**
*Patriot Act
Primer*<http://www.washingtonpost.com/wp-dyn/content/article/2005/11/03/AR2005110301390.html>
The USA PATRIOT Act, approved overwhelmingly by Congress after the Sept. 11,
2001 attacks, greatly expanded the government's power to monitor, search,
detain or deport suspects in terrorism-related investigations. Text of the
USA PATRIOT Act
**
Homeland Security

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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 freely 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 status 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 scrutinized again and again 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 new guidelines allowed the FBI for the first time to add to
government files consumer data from commercial providers such as LexisNexis
and ChoicePoint Inc. Previous attorneys general had decided that such a move
would violate the Privacy Act. In many field offices, agents said, they now
have access to ChoicePoint in their squad rooms.

What national security letters add to government data banks is information
that no commercial service can lawfully possess. Strict privacy laws, for
example, govern financial and communications records. National security
letters -- along with the more powerful but much less frequently used secret
subpoenas from the Foreign Intelligence Surveillance Court -- override them.

*'What Happens in Vegas'*
------------------------------

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 a New Year's Eve
attack in Las Vegas. The identities of the plotters were unknown.

The FBI sent Gurvais Grigg, chief of the bureau's little-known Proactive
Data Exploitation Unit, in an audacious effort to assemble a real-time
census of every visitor in the nation's most-visited city. An average of
about 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.

A former stockbroker with a degree in biochemistry, Grigg declined to be
interviewed. Government and private sector sources who followed the
operation described epic efforts to vacuum up information.

An interagency task force began pulling together the records of every hotel
guest, everyone who rented a car or truck, 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 known terrorist universe -- a
shared address or utility account, a check deposited, a telephone call --
could give investigators a start.

"It was basically a manhunt, and in circumstances where there is a manhunt,
the most effective way of doing that was to scoop up a lot of third party
data and compare it to other data we were getting," Breinholt said.

Investigators began with emergency requests for help from the city's
sprawling hospitality industry. "A lot of it was done voluntary at first,"
said Billy, the deputy assistant FBI director.

According to others directly involved, 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,
who previously built data management systems for casino surveillance. "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. Some law enforcement officials, speaking on the
condition of anonymity because they had not been authorized to divulge
particulars, said they relied primarily on grand jury subpoenas. One said in
an interview that national security letters may eventually have been
withdrawn. Agents encouraged voluntary disclosures, he said, by raising the
prospect that the FBI would use the letters to gather something more
sensitive: the gambling profiles of casino guests. Caproni declined to
confirm or deny that account.

What happened in Vegas stayed in federal data banks. Under Ashcroft's
revised policy, none of the information has been purged. For every visitor,
Breinholt said, "the record of the Las Vegas hotel room would still exist."

Grigg's operation found no suspect, and the orange alert ended on Jan. 10,
2004."The whole thing washed out," one participant said.

*'Of Interest to President Bush'*
------------------------------

At around the time the FBI found George Christian in Connecticut, agents
from the bureau's Charlotte field office 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 of
suspicion.

University officials said in interviews late last month that the FBI tried
to use a national security letter to demand much more information than the
law allows.

David T. 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, July 15, FBI agents arrived with a national security letter.
Drooz said it demanded all records of Nashar's admission, housing, emergenc

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the patriot act revisited

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