Posted by Orin Kerr:
Can the Pentagon and the CIA Issue National Security Letters?:
http://volokh.com/archives/archive_2007_01_14-2007_01_20.shtml#1168801918
Over at [1]Concurring Opinions, Daniel Solove is asking a very good
question about [2]New York Times' disclosure that the Defense
Department and the CIA have been issuing National Security Letters:
What provision of federal law empowers those agencies to issue
National Security Letters? Several parts of the U.S. Code permit the
FBI to issue National Security Letters, which are something like
subpoenas; they are basically letters on FBI stationary authorized by
FBI bigwigs ordering third-party record holders like banks to hand
over information to the government.
The new story breaks the news that the Defense Department and CIA
apparently believe they have a similar authority, and that they have
been issuing their own NSLs in their own domestic investigations.
[3]Vice President Cheney has confirmed the practice. But where are
they getting this power, I wonder? Like Dan, I'm not aware of any
legal authority authorizing the Pentagon or the CIA to issue National
Security Letters. According to the Times story, "government lawyers
say the legal authority for the Pentagon and the C.I.A. to use
national security letters in gathering domestic records dates back
nearly three decades and, by their reading, was strengthened by the
antiterrorism law known as the USA Patriot Act." That's an interesting
claim, although I don't know what particular provision of the Code
they have in mind. Does anyone know?
Part of the story suggests to me that the DoD and CIA may be issuing
"fake" letters -- letters on government stationary that the government
knows have no legal effect but that try to trick the recipients into
thinking that they do. The story refers to the DoD/CIA letters as
"noncompulsory versions" of NSLs, and reports that "Congress has
rejected several attempts by the two agencies since 2001 for authority
to issue mandatory letters" like those that the FBI issues. It also
states that "[l]awyers at financial institutions, which routinely
provide records to the F.B.I. in law enforcement investigations, have
contacted bureau officials to say they were confused by the scope of
the military�s requests and whether they were obligated to turn the
records over." Do others read that the same way as I do?
This is a puzzling story. Do others read the Times story differently
than I am?
References
1. http://www.concurringopinions.com/archives/2007/01/the_pentagon_th.html
2.
http://www.nytimes.com/2007/01/14/washington/14spy.html?_r=1&ex=157680000&en=5822c3449c8c2e84&ei=5124&partner=permalink&exprod=permalink&oref=slogin
3. http://www.breitbart.com/news/2007/01/14/070114153813.ahatfwm8.html
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