Washington Post's Response to DOJ Patriot Act Letter

Monday, December 5, 2005 7:00 AM

A 10-page letter from the Justice Department to the House and Senate Judiciary Committee chairmen, dated Nov. 23 and distributed widely this week, took issue with a Nov. 6 article in The Washington Post about the FBI's use of "national security letters" under the Patriot Act. The Washington Post published an article about the Justice Department letter on Wednesday and washingtonpost.com reprints it today in full. What follows is The Post's reply to assertions that the article contained "many ... distortions and falsehoods":

The Justice Department did not authorize interviews for the disputed article before it appeared or respond to questions sent by email.

The Nov. 23 letter to Congress from Assistant Attorney General William E. Moschella said The Post created the false impression that national security letters empower the FBI "to listen to phone calls or read emails."

The article in fact said the reverse: "A national security letter cannot be used to authorize eavesdropping or to read the contents of e-mail."

Moschella's letter offered 17 additional allegations of factual error. Many relied on assertions that the article implied or insinuated things it did not, in fact, say. The Justice Department objections are summarized below in bold print.

1. The Post "claims ... that the FBI uses NSLs to spy on law-abiding Americans," which is "simply false."

The Post reported that the FBI, under the Patriot Act, routinely undertakes "clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies" when the information is deemed "relevant to" a terrorism or espionage investigation. The article supported that statement with quotations from the Patriot Act, the Justice Department's implementing guidelines, and on-the-record interviews with high-ranking FBI officials empowered to authorize national security letters. Moschella supplied no contradictory information, and his letter to Congress acknowledged that "some people whose records are produced in response to an NSL may not be terrorists or spies or associated with terrorists or spies."

2. The Post falsely "insinuates that the FBI uses NSLs to seek library patrons' check-out records and monitor visits to disfavored web sites." Such monitoring "cannot be done under an NSL."

The Post did not say the FBI uses NSLs to obtain borrowing records. The article described a Connecticut case in which the FBI asked for "all subscriber information, billing information and access logs of any person" who used a particular library computer. The statutes governing national security letters are silent on the meaning of those terms, and the FBI declines to interpret them publicly. The databases used by the Connecticut library link billing information to borrowing records.

The reference to disfavored web sites was hypothetical, and it came in a quotation from a lawyer for the ACLU. But the FBI's authority to monitor web browsing is clear. Senior bureau officials said on the record that NSLs are routinely used to obtain lists of web addresses visited by people who are targets of an NSL.

3. The Post "implies that NSLs are left entirely to the FBI's discretion" and "ignores robust mechanisms for checking misuse."

The article reported that "no FBI or Justice Department official audits the use of national security letters to assess whether they are appropriately targeted, lawfully applied or contribute important facts to an investigation." That was acknowledged on the record by Valerie Caproni, the FBI's general counsel, among others. Moschella's letter cited oversight by Congress and the power of the department's Inspector General to investigate abuse. The article described both of those channels, noting that Congress receives only statistical reports and the Inspector General has not chosen to investigate national security letters.

4. The Post "fundmentally mischaracterizes" a recent executive order. The order contains "no requirement" that state, local and tribal governments "be given access to information on innocent Americans."

The article did not report such a requirement. It said the Justice Department, in a policy shift, has directed the FBI to keep all information it collects in terrorism investigations, even if the subjects prove innocent, and to deposit the information in shared federal government data banks. It also reported, and Moscella acknowledged, that President Bush ordered increased access to those data banks for state, local and tribal governments, as well as "appropriate private entities."

5. "The Post implies that the FBI can use an NSL to compel production of private records without the intervention of a court," whereas the Justice Department characterizes NSLs as "requests". There is not "any basis in fact" for The Post's report that congressional conferees "are poised again to amplify the FBI's power to compel" compliance.

The article quoted authoritative FBI guidance to field offices from Michael J. Woods, then chief of the bureau's national security law unit. The guidance said "NSLs are powerful investigative tools, in that they can compel the production of substantial amounts of relevant information." The article did not specify whether court intervention is required, but in practice court involvement is extremely rare. The House has passed an amendment, now in conference, that would make failure to comply a criminal offense.

6. The Post falsely "implies that Congressional oversight ... is inadequate" and that "the Justice Department has failed to report how many NSLs it uses."

The story did not express a judgement about the adequacy of oversight.The Post reported, accurately, that the Justice Department provides only statistics to Congress and omits one of four categories of NSLs from the tally. The Post also reported that the classified statistics are required by statute twice a year but have been delivered only three times in four years. Moschella acknowledged in a letter to Congress this summer that the reports "were not filed within the exact statutory timeframe."

7. The Post "draws misleading and erroneous distinctions" between recipients of NSLs, who may never disclose the FBI's demand for information, and recipients of grand jury subpoenas.

Moschella said the recipient of a grand jury subpoena has no constitutional right to discuss the subpoena publicly. The Post article did not address that question. It said recipients of those subpoenas are "generally free" to discuss them. Moschella also said The Post incorrectly stated that a grand jury subpoena cannot be used to investigate "the speculative threat of unknown future attacks." The article stated that in general grand juries tend to investigate past crimes.

8. The Post "incorrectly implies" that then-Attorney General John D. Ashcroft empowered the FBI to disregard "civil rights and civil liberties" in terrorism investigations.

The article did not say that. It said Ashcroft's 2003 guidelines "gave overriding priority to preventing attacks." That language closely parallels the language of the guidelines, the accompanying news release and the official priority lists of the Justice Department and FBI.

9. The Post is wrong to assert that "no one can challenge" NSLs because their subjects do not know they are under scrutiny.

The article did not say that. It quoted the Justice Department's inspector general, Glenn A. Fine, who testified in Congress: "We do rely upon complaints coming in.... To the extent that people do not know of anything happening to them, there is an issue about whether they can complain."

10. The Post "erroneously implies" that there is no "legitimate national security purpose" for permanent secrecy of all NSLs.

The article included an assertion that national security "seldom requires that the secret be kept forever." That view was attributed to Woods, the former chief of the FBI's national security law unit.

11. The article included a "simply false" implication that the FBI has "limitless" power to assert the relevance of information it seeks with an NSL.

The article did not say that. It noted that NSLs can be issued only in an authorized investigation. Once an investigation is underway, the article said the FBI's test for relevance is "so basic it is hard to come up with a plausible way to fail." To justify a request for authority to obtain phone records, for example, the FBI's model application advises agents to say the records are relevant because they want to find out who the subject is calling.

12. The Post "peddles the notion that the existence of the authority to use NSLs is itself an 'abuse.'"

That view was expressed in the story by former Rep. Bob Barr (R-Ga.).

13. The Post implies that the gag order accompanying all NSLs "would prohibit the recipient from consulting an attorney."

The article did not say that. It quoted one recipient of an NSL who said, in a sworn affidavit, that he was afraid to call a lawyer because the FBI's letter prohibited him from disclosing it "to any person." Moschella noted that the Justice Department supported a change in the law that would make explicit the right to consult a lawyer. But the Justice Department did not support an amendment requiring the FBI to notify recipients of an NSL that they have that right.

14. The article included a "simply false" statement that the FBI did not explain to a federal judge why it needs the information it sought in the Connecticut library case.

Moschella said the Justice Department "fully informed" the judge of the facts in "a comprehensive explanation" filed under seal. The Post quoted the judge's published opinion that there was "nothing specific" in the government's classified legal brief.

15. The Post "incorrectly implies" that "businesses face dire consequences" if they do not comply with an NSL.

The article said businesses seldom resist NSLs, and it described a seminar for corporate lawyers that explained the risks of noncompliance. The speakers were Jeffrey Breinholt, a senior Justice Department official, and Kenneth M. Breen, who until recently was deputy chief of the business and securities fraud section of the U.S. Attorney's office in the Eastern District of New York.

16. The Post falsely asserted that business groups have complained about the burden imposed by NSLs.

Moschella said a recent letter to Congress from the U.S. Chamber of Commerce and other major business groups "did not single out NSLs as burdensome." The letter, which criticized the "expensive and time consuming burden" of government information demands, mentioned two Patriot Act provisions -- NSLs and subpoenas under the Foreign Intelligence Surveillance Act. There have been tens of thousands of NSLs issued since the Patriot Act and, in the most recent published accounting, 35 subpoenas for business records under FISA.

17. The Post "erroneously insinuates that there is no internal oversight of NSL usage."

Moschella's letter notes that fewer than 100 people nationally have signature authority for NSLs, that the FBI has several levels of supervision, and that the inspector general can investigate abuse. The article included those facts.

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