The Justice Department has criticized as misleading and inaccurate a Washington Post report about the FBI's expanded power to collect the private records of ordinary Americans while conducting terrorism and espionage investigations.
The Nov. 6 article detailed the dramatic increase in the use of "national security letters," a three-decade-old investigative tool that was given new life with the passage of the USA Patriot Act in 2001. The FBI now issues more than 30,000 national security letters a year, a hundredfold increase over historic norms, the article said.
Instead of merely enabling the FBI to review in secret the customer records of suspected foreign agents, national security letters allow investigators to secretly scrutinize some records of U.S. residents and visitors who are not alleged to be terrorists or spies, the article said.
The records of ordinary Americans' personal financial transactions, telephone calls, consumer purchases and Web site visits can be obtained relatively easily from businesses by federal authorities with the letters, issued by FBI field supervisors and a few headquarters officials, according to the article.
In a 10-page letter to the chairmen of the House and Senate judiciary committees last week, Assistant Attorney General William E. Moschella said that the report contained "distortions and factual errors." He presented a 17-point rebuttal to what he variously described as inaccurate claims, insinuations and implications, either by The Post or by critics quoted in the article.
"The Department of Justice is committed to protecting civil liberties and to using all investigative tools judiciously and within the bounds of the law," Moschella wrote. ". . . We urge the Congress not to let a distorted and misleading portrayal of the FBI's use of this vital investigative tool skew the debate over how best to ensure our national security."
Congress is in the midst of reauthorizing parts of the Patriot Act and is weighing, among other things, whether to explicitly allow recipients of national security letters to contact lawyers and to seek judicial reviews. Other changes under consideration would require the Justice Department to publish unclassified statistics on the use of the letters and would require the DOJ's inspector general to audit their use.
Moschella said the article incorrectly implied that the recipient of a letter cannot consult an attorney about it. The article quoted one recipient's assertion in a court affidavit that he was afraid to seek legal help because the letter forbade disclosure to "any person." Currently, the law is silent on whether "any person" includes a lawyer.
Leonard Downie Jr., executive editor of The Post, said that the "Justice Department letter does not document any inaccuracies in our story on national security letters, which revealed the widespread use and limited oversight of this investigative tool. The letter relies on words like 'implies' and 'insinuates' to assert claims the story does not make. The story speaks for itself."
For example, Moschella's letter said that The Post's article creates "the impression" that the FBI can use the letters to listen to citizens' phone calls or to read their e-mails. But the report explicitly said that the letters "cannot be used to authorize eavesdropping or to read the contents of e-mail."
Moschella disputed the article's statistics on the use of national security letters, but he did not offer another figure. He said that some lawmakers and congressional staff members have been given classified briefings on that point and others, which cannot be addressed in public.
Moschella said the report incorrectly claimed that the FBI uses the letters to spy on law-abiding Americans, saying instead that such letters are limited to information relevant to anti-terrorism investigations.
"To be sure, some people whose records are produced in response to an NSL may not be terrorists or spies or associated with terrorists or spies," Moschella wrote. "But in these vital investigations, the FBI needs to be able to check out every tip and track down every lead."