Senate Judiciary Chairman Patrick Leahy today pressed for passage of a bill that would provide new statutory safeguards for FBI terrorist investigations while protecting sensitive personal data, calling it “a real check on and independent oversight of national security letters.” The security letters, which are administrative subpoenas that let the FBI analyze telephone, computer and bank records without warrants, have been the focus of intense congressional scrutiny in the wake of a pair of Justice Department reports that showed widespread misuse. Leahy’s panel took up the issue today, a week after a similar hearing by the House Judiciary Constitution Subcommittee.
The bill in question was introduced by Sen. Russell Feingold, D-Wis., in September. It would require the government to determine that each record sought with an NSL relates to someone with a connection to terrorism or espionage, and it would place a time limit on the gag order tied to each subpoena. It would also require the FBI to implement a compliance program and ensure meaningful after-the-fact judicial review. While Leahy has not signed on as co-sponsor, nearly a dozen senators have, including Sens. Richard Durbin, D-Ill.; Edward Kennedy, D-Mass., John Sununu, R-N.H., and Chuck Hagel, R-Neb. The FBI has acknowledged misuse and has created new NSL guidelines, as well as a new integrity and compliance office. Leahy said today those actions were not sufficient. Feingold agreed, saying the problem lies with the 2006 reauthorization of the USA PATRIOT Act, which he said granted the FBI “a blank check to obtain sensitive information about innocent Americans.”
Sens. Benjamin Cardin, D-Md., and Sheldon Whitehouse, D-R.I., also called for more congressional action. “What happens when we turn off the spotlight, when Congress doesn’t hold regular hearings? Will we revert back to the use of these letters contrary to law?” Cardin asked. The FBI’s misuses “directly affect the credibility of law enforcement,” Whitehouse said. “The level of disinterest in attending to limitations of [PATRIOT Act] powers is kind of surprising.”
Criticism for not managing NSLs appropriately is deserved but FBI Director Robert Mueller promised to do better, and the latest report from Justice’s inspector general shows the agency has complied, said Sen. Jeff Sessions, R-Ala. Sessions added that federal drug and tax evasion probes use similar subpoenas and he rejected the idea “that we should give greater protection to terrorists and spies than drug dealers and tax cheaters.” But the Center for Democracy and Technology’s Gregory Nojeim, who testified alongside former Justice Department lawyer James Baker and former FBI National Security Law Unit chief Michael Woods, argued that intelligence investigations are different and need greater safeguards.
This article appears in the April 26, 2008, edition of National Journal Daily PM Update.