Sometime in late September or early October of 2001, I received a call from an individual identifying himself as an agent of the FBI and asking for information about the owner of an email account from the place I worked. He stated that he believed the account was relevant to a terrorist investigation. Of course, this was in the immediate aftermath of September 11th and everyone had security concerns, but I was also certain that I didn’t want to give away information to someone who shouldn’t have it. Following a fairly standard procedure, I requested his phone number, badge number and locale so that I could contact the FBI to confirm his identity. The agent gave me a lot of grief about this, noted that I was putting lives at risk by not immediately complying, etc., but I assured him that I would call right back.
I contacted the FBI and after quite a bit of checking, they confirmed he was an agent. The reason for the delay is that he was actually an ATF agent on loan to the FBI. So I called him back and asked what information he was looking for. It turned out that he was investigating an arms sale online. I was surprised that someone dealing in illegal weapons for terrorism would use their personal email account, but sure. I told the agent that if he would provide a subpoena or court order, I would be happy to respond. This generated another round of everyone’s favorite game, “do you want the terrorists to kill people?!†I apologized, but explained that it was my job to do otherwise. I never heard from him again.
Given the nature of the crime he described, the fact that I never received any valid order, that this seemed like a small issue relative to the claim of terrorism, and that he was on loan from the ATF; I can only conclude that, with the tint not even dried on his shiny new FBI sun glasses, he was overstepping his authority, and claiming a terrorism investigation, in order to pursue a standard, probably pre-existing, case. With that in mind, today’s report by the Investigator General regarding errors in the FBI’s use of National Security Letters (NSLs) comes as no surprise.
The USA PATRIOT Act removed any judicial oversight required for NSLs in order to ensure that they could be executed in a timely fashion. The law then prevented anyone receiving a NSL from mentioning it to anyone. So you have a secret, self-issued warrant for information, creating a situation ripe for abuse. The IG’s report indicates that these abuses were errors and lack of internal oversight. That may be, but it is also clear that there were many cases of over-aggressive investigators issuing NSLs (which are intended for investigations into terrorism) in cases which had nothing to do with terrorism. I guarantee that if the USA PATRIOT Act had been law when I spoke to my ATF agent, I would have received an NSL, turned over the information, and been unable to discuss the demand with anyone.
When the USA PATRIOT Act was passed, the administration basically asked the country to trust the executive branch by allowing it a surveillance tool that had no oversight, was self issued and would remain entirely secret. The IG’s report demonstrates that our trust was abused. However, I’ll go further and say that the concept of trusting the executive branch for activities undertaken without oversight (either judicial or congressional) is fundamentally un-American and a violation of constitutional principles as espoused in the Federalist Papers and other writings of the founders of this country. I hope that the IG’s report will encourage congress to rethink their blind trust in the executive branch under this, or any, administration.