Washington Post staff writer Barton Gellman was online Monday, Nov. 7, at 2 p.m. ET to discuss his report on "national security letters," or NSLs, an FBI tool to force companies to give the bureau private information about their customers--and keep the request secret. A man who received a letter and refused the request is highlighted in the story because the ACLU took up his cause and is pursuing it in the courts.
Read the report: The FBI's Secret Scrutiny , ( Washington Post, Nov. 6, 2005 )
The transcript follows.
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Barton Gellman: Welcome, everyone. Lots of questions. I'll get to as many as I can.
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Washington, D.C.: Most of the stuff requested by the letters seem to be things that the DIA was using in its Able Danger project in the summer of 2000, which identified Muhammad Atta as a potential terrorists, but could not peg him as the ring-leader of a 9/11 style plot (by 9/11 style I mean multiple, coordinated terror events, not necessarily involving jets and tall buildings). How does the FBI effort with the Patriot Act compare to the DIA effort under Able Danger?
Barton Gellman: Interesting question. I haven't covered Able Danger myself, and it's important to note that we have very limited public knowledge of its details -- or the details of the FBI's data warehousing efforts. (From reading the coverage it's not clear to me, by the way, whether Able Danger did, in fact, identify Atta.) To the extent that both programs attempt to use link analysis or pattern analysis on immense fields of data -- looking for connections and relationships that analysts would not spot otherwise -- they are at least generically related. But a proper public debate about data mining is going to require that we know more about what the government is collecting and how it is using the information it collects.
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Washington, D.C.: What are the ACLU and other civil liberties groups doing in response to this situation, and why didn't you include more reaction from them?
Barton Gellman: The ACLU, Electronic Privacy Information Center, Center for Democracy and Technology and Center for National Security Studies, among lots of others, have been lobbying for changes in the Patriot Act. (They are joined in a coalition called Patriots to Restore Checks and Balances with conservative organizations such as the American Conservative Union and the Free Congress Foundation.)
ACLU and EPIC have also mounted legal challenges. The ACLU has challenged the constitutionality of NSLs and of "business records" subpoenas under the Foreign Intelligence Surveillance Act (modified by the famous Section 215 of the Patriot Act). Both organizations have also put important documents on the public record after winning partial victories in freedom-of-information lawsuits.
NSLs have not, however, been the major focus of most Patriot Act lobbying or debate. My story was about what's happening that we didn't know. Some readers have made contact with me to say they're glad to see what the FBI is doing; others are angry. We'll let the debate go forward from here.
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Los Angeles, Calif.: Do you think it is likely that these letters get submitted not only for terrorism suspects but also for those who provided information that began an investigation - for example, a citizen's report of suspicious activity that results in an investigation? Normally, people who are trying to help out law enforcement wouldn't expect their own privacy to be invaded (certainly they'd expect some questioning directly), but given the wide scope of the issuance of these letters it makes you wonder. Of course if that were common practice it would put a real chill on the public's interest in providing valuable help.
Barton Gellman: I'd only be guessing here. You or I could imagine circumstances in which an FBI agent receiving a tip would want to know more about the tipper. There are other situations -- involving a tip that's easily checkable and doesn't rely for its validity on the tipper's identity, like, "there's a bomb factory in the basement" -- in which that might not be true. Since we don't know what the FBI's procedures and standards are for NSLs, it's hard to give a substantive answer.
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Rockville, Md.: Hypothetical situation: Nation Security Letters.
Investigative newspaper reporters like Coopper, Miller, Gellman, et al, have a wide range of contacts. They initiate a lot. A lot of people initiate contacts with them. The reporters do not know who their contacts have been in contact with, or where or when. Hence, unbeknownst to you, the chances are better than average that in one of the FBI sweeps, somewhere in the vast net, your name can be linked with an unsavory character with a terrorist's complexion. Consequently, you, who have uncovered "The FBI's Secret Scrutiny" on the front page of The Washington Post, are privileged to receive a secret national security letter. What would you do? What position would you take?
Barton Gellman: Well, the thought occurred to me that I've been in contact with lots of characters, sweet, savory and otherwise. So I suppose an agent might consider it relevant to find out more about me.
That doesn't mean I'm likely to receive an NSL personally. If someone wants my phone records, they'll ask the phone company; my bank records, the bank. I can't think of a category of records, covered by the statutes authorizing NSLs, for which I'm the record holder.
If you're asking whether I, or the Washington Post, would comply with or fight an order to disclose confidential reporting information, the answer is we'd fight.
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Woodbridge, Va.: The lack of oversight and accountability in this expansion of Federal police powers is just an outrage. Of course there are no substantiated reports of abuse of this power, because the FBI isn't required to disclose anything about it, and in fact is incentivized to keep as many secrets as possible.
Not to mention that the requests in the NSLs are de facto searches that ought to be subject to the fourth amendment requirement of a warrant.
Also galling is that the law seeks to quash public discussion of the NSLs by putting gag orders right in them. That's a clear prior restraint on speech, is it not? Are there no court cases trickling through the system that will bring the leviathan police state to heel?
Barton Gellman: The absence of abuse reports does not really address the main civil liberties issues. It's true that an FBI whistleblower or a telephone company, for instance, could report abuse to the Inspector General. But the people with privacy at stake -- those whose intimate records are gathered with an NSL -- are never notified, and can't complain. And the main controversy here is not abuse of NSLs by a rogue agent, but whether the official and intended policy on NSLs constitutes an abuse of civil liberties.
The Fourth Amendment issue is interesting. A lot of people would be surprised by a line of Supreme Court cases beginning with the Miller case in the 1970s, which generally hold that we have no "reasonable expectation of privacy" in records once we share them with any business (or throw them in the trash). Having voluntarily disclosed our phone calls to the phone company, or financial records to a bank, we have (the court holds) placed them beyond the scope of the Fourth Amendment. On the other hand, this line of cases has not been tested in a situation in which, for instance, a prosecutor might seek to introduce evidence from an NSL in a criminal case. I have my doubts about whether that would fly.
As for prior restraint on speech, that is exactly what the Connecticut and New York cases I mentioned are about. A three-judge panel of the 2d Circuit court of appeals heard oral argument last Wednesday on, among other things, whether the automatic and permanent gag order is consistent with the First Amendment.
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Barton Gellman: I wanted to mention, in connection with one of the questions above, that there does seem to be some ferment about this story in Congress. Senators Coburn, Hegel, Biden, and Kennedy said on television yesterday that they'd like to look into the use of NSLs, and were surprised by the scale of their use. Some of them said they'd try to revisit the question as the Patriot Act moves toward renewal in House-Senate conference.
Rep. Jane Harman, the ranking Democrat on the House Intelligence Committee, told me she is reconsidering whether there ought to be NSLs at all. It might be better, she said, to make more extensive use instead of secret intelligence warrants from the Foreign Intelligence Surveillance Court, which at least require the permission and some supervision of a judge. We'll have to see how this plays out.
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Sunny California: Barton, Thanks for the great story.
If the identity of National Security Letter recipients is secret, then did you break a law by writing about it? And what about the people who spoke about getting them in the story? Did they break laws too? And are you and your colleagues worried the Bush administration is out to get reporters by investigating leaks aggressively?
Thanks!
Barton Gellman: Sunny, you raise a question we think a good deal about here.
I was not subject to any gag order in this case, because I did not have privileged knowledge. The FBI did not tell me about the NSLs I mentioned and could not, therefore, have instructed me to keep quiet.
It's important to note that this is not one of those cases in which a confidential source disclosed the identity of the Connecticut litigants. There are extensive public records on the Connecticut case -- "redacted," or censored, to remove identifying information. The New York Times first noted that the Library Connection Inc. was the corporate plaintiff. I was able to establish identities of other parties by cross-referencing the known details with other public records, and by interviewing people (e.g. vendors of specialized software in use by the Connecticut library consortium) to make still more matches.
The North Carolina case is unusual, in that recipients of an NSL spoke openly about it, but (though the story did not have room for this) FBI Director Mueller was the first to describe the case publicly. He mentioned it in Congressional testimony in July. The NSL in this case was also withdrawn by the FBI when the university resisted it, which probably adds further legal ambiguity to the gag order. So I don't think anyone broke the law.
At the Washington Post, my colleagues and I are indeed concerned about the changing political and legal environment on the question of confidential sources. We were always very careful, legally and in the way we operated, on this subject. I can't speak for everyone, but I am even more careful now than I was before -- to check the accuracy of the information, the legal risks to my sources and the paper, and the views of the government about whether actual damage would result from disclosure.
It is clear to me that confidential sources are essential to the work we do, and I have the paper's complete backing to protect my sources with every resource at our disposal.
In this case I was able to take information I first received from confidential sources and, by using it in further interviews, to put most of it on the record from named officials who wanted to give their perspective before publication. That's always the best solution, when it's available. It helped the story, and helped readers judge the credibility and context of what I wrote.
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San Antonio, Tex.: This from the American Libraries Association Web site:
Supreme Court Justice Ruth Bader Ginsburg has denied the emergency appeal filed by the American Civil Liberties Union that would have lifted the Patriot Act's gag provision in the case of Doe v. Gonzalez, which involves a Connecticut library organization.
In an opinion issued late October 7, Ginsburg said she took into account the fact that the U.S. Court of Appeals for the Second Circuit in Manhattan "will hear argument promptly and render its decision with appropriate care and dispatch" in an expedited appeals process. She also cited the original district court's original decision to lift the gag order essentially "held unconstitutional-as applied to the facts of his case-a provision of an Act of Congress. A decision of that moment warrants cautious review."
Deborah Caldwell-Stone, deputy director of the American Library Association's Office for Intellectual Freedom, told American Libraries that "ALA is disappointed with the decision. It would have been extraordinary for her to grant the motion, but we believe these are extraordinary circumstances, given the current debate surrounding the Patriot Act."
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Any chance that associations such as the ALA will have clout fighting the NSL's gag order? (Also, Library Connection Inc. is located at 599 Matianuck Ave. in Windsor, Conn. You misspelled the street name in your article.)
Barton Gellman: In case it's not clear to some readers here, the case you mention is the same I case I wrote about in the lead of my story. That was a short-term procedural move, solely to lift the stay of the lower court's decision to lift the gag order, and Ginsburg said the 2nd Circuit could consider that itself.
The plaintiffs are eager to speak out as quickly as possible, so they can try to influence Congress before it finishes with the Patriot Act in the bill now in conference.
The 2nd Circuit did hear the case promptly -- it was briefed and argued on an expedited basis and now awaits decision. It's a bit of a race now between the House-Senate conference and the decision of the court.
On the other hand, if the government loses it could easily seek to keep the gag in place pending a request for full review of the case by the Supreme Court.
The ALA has had considerable impact in public debate and in court, but the Patriot Act's momentum in Congress has been hard for anyone to check. The law aims to serve a pretty fundamental interest -- protecting against terrorism -- and its tradeoffs have not been apparent because it operates primarily in secret.
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Washington, D.C.: The New York Times is saying some FBI officials are skeptical about the 30,000 figure you reported today. What on earth does that mean? They're skeptical the number is too low, too high? That it shouldn't be in the newspaper?
Barton Gellman: That's the way public affairs people try to muddy up a fact they don't want to, or can't, deny. The figure is accurate, and in fact understates the extent of NSL usage. The government counts only three kinds of NSLs, and there's a fourth. I know the FBI uses that one (in the Fair Credit Reporting Act, Section 626, 15 USC 1681v), and other agencies may do so as well, but I couldn't find out the numbers.
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Worried in Washington: Is Cheney's office involved in this somehow? His hand seems to be in everything these days, according to The Post. Are things going to get even more slippery on the privacy stuff now that Gonzales replaced Ashcroft?
Barton Gellman: I have no reason to believe the vice president's office is involved in NSLs (though tips, in plain brown envelopes, are always welcome). The Bush administration has been quite open in its lobbying for expanded NSL powers, though hardly so about what it does with the powers. No hidden hand is required to explain what's known to have happened.
Gonzales has been less confrontational with Congress, and somewhat more prompt in answering questions about the Patriot Act, but he has not been more forthcoming on NSLs.
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Barton Gellman: I'm going to have to stop it here, folks. Sorry to leave any question unanswered, but thanks very much to everyone who sent one in.
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