Answering National Security Letters

The Washington Post reports on the Justice Department's release last week of some of the new numbers on "national security letters" and Foreign Intelligence Surveillance Act (FISA) searches: over 9,200 affecting 3,500 citizens in 2005 for the former; 2,072 of the latter, an 18 percent increase over the previous year. (There are apparently no previous year numbers for national security letters.) Those figures do not include

other such letters that are issued by the FBI to obtain more limited subscriber information from companies, such as a person's name, address or other identifying data, according to the report. Sources have said that would include thousands of additional letters and may be the largest category of NSLs issued. The Washington Post reported in November that the FBI now issues more than 30,000 NSLs each year, including subscriber requests.

"Scores of FBI managers around the country" have the authority to issue NSLs, and they require no court order or supervision to do so.

The FBI thinks that is just fine, since

An NSL is simply a request for information. It does not authorize the FBI to conduct a search or make a seizure. If the recipient of an NSL declines to produce the requested information, the FBI cannot compel him to do so; only a federal court has that authority.

NSLs are subject to two other important limitations. First, the FBI may issue them only to obtain information relevant to an international terrorism or espionage investigation…..

Second, they may be used only to obtain narrow categories of information. For example, the FBI may obtain credit-card billing records to attempt to learn the identity of a terrorist suspect. An NSL may not be used to obtain the contents of an e-mail or a telephone conversation….

The NSL statutes do prohibit an NSL recipient from disclosing the fact that he received it.

The ACLU back in December complained about the Justice Department's underplaying some of the legal and privacy concerns surrounding NSLs, including that

one federal court in Connecticut has already found the underlying NSL authority to be too broad and unconstitutional. Another court has found the permanent gag order that accompanies these demands to be unconstitutional and yet the Department asserts that courts have found there is no First Amendment free speech right in these investigations….

Comments

[GM]

For those of you who have yet to do so, go to Cato.org and download the report on Bush's (abysmal) constitutional record. A relatively easy read and a decent primer on some fundamental ConLaw issues, it's a .pdf file.

Oh, and prepare to weep. 🙁

[Rick Barton]

...yet the Department asserts that courts have found there is no First Amendment free speech right in these investigations....

To what rulings does the Justice Department refer? Or are they making stuff up again?

Whatever, thankfully courts and not the Justice Department, are the arbiters of the question of the existence of First Amendment free speech rights in National Security Letters investigations.

[JD]

So what's your point? You jerks find problems with everything the government does in it's war on terror. We are in a freaking WAR you stupid morons. A request for information is about as innocuous as you can get.

[Steven Crane]

You're a troll, right?

[Sphynx]

JD: I'm hoping, out of charity, and for the sake of open communications, that your post was intended to be facetious. If not, then please note the following:

1. We, the people of the United States of America, are not in fact in volved in a War. Our "duly" elected representatives in the U.S. Congress have not declared war, as authorized by the U.S. Constitution, on any country or alliance of countries since December 11th, 1941. That U.S. armed forces are engaged combat operations in several parts of the world currently is undeniable, but we are not at war.

2. National Securtiy Letters are more than just an innocuous request for information. These letters purport to be, and are treated by the U.S. Justice Department and the F.B.I. as the equivelent of a subpoena. Furthermore, they contain in them a gag-order, restricting the recipients First Amendments protected rights of communication. All parts of these letters violate the letter & spirit of the U.S. Constitution, especially the 4th & 5th Amendments.

[semm]

Given that the companies are not compeled to give the data to the FBI, it would seem like this is an issue for consumers and the companies they do buisness with to work out.

[R C Dean]

Our "duly" elected representatives in the U.S. Congress have not declared war, as authorized by the U.S. Constitution, on any country or alliance of countries since December 11th, 1941.

Not true. Although they do not contain the magic words "declare" and "war," Congressional authorizations for the use of force are the Constitutional and practical equivalent.

That U.S. armed forces are engaged combat operations in several parts of the world currently is undeniable, but we are not at war.

Whether this assertion is true or not depends on how you define "war". If you define it very narrowly, Marquess of Queensbury style, so that war only occurs when two sovereign nations meet in serried ranks to do battle, then its probably true. Since the Hussein regime was overthrown, we really haven't had full-scale hostilities with a sovereign nation.

However, guerrilla wars are commonly recognized as real wars, and they generally don't involve two sovereigns. Civil wars also don't generally involve two sovereigns. As we have learned, 4th generation warfare also doesn't involve two sovereigns.

War, in other words, can encompass a broader state of affairs than something that is governed by Geneva. "Combat operations" might be a little broader term than "war", but only a little. Indeed, this is why Congress has gone from "declaring" "war" to authorizing the use of force.

[Sphynx]

Mr. Dean: There are only two ways for the armed forces of these United States to engage in legal combat operations:

1. On orders of the Commander-in-Chief (being the elected President [POTUS]) to DEFEND the territorial U.S. (including "overseas" possessions) from direct invasion by armed agressors, until such a time as Congress (and only Congress) issues a formal:

2. Declaration of War. See: United States Constitution: Article I, Section 8.; There is no provision in the Constitution for Congress to waive its responsibilities or powers designated to the Federal Legislature. There is not "...or equivalent declaration or legislation" provision in the Constitution or the Amendments.

The Constitution is intended to LIMIT the function of the Federal government, and to a lesser degree the governments of the "several" states, to those few powers needed to "... establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity ..." [emphasis mine].

Justices Jackson got it half right: The Constitution of the United States of America is not a suicide pact, it is a hangman's noose for any official who would usurp the rights/freedoms/privaleges of the American people.

[coachacola]

Sphynx - you get extra credit for the nice formatting of your posts!

[Rick Barton]

Yeah Sphynx, very nice presentation of your excellent points.