Tuesday, May 16, 2006


FBI Spokesman Won't Confirm or Deny Use of "National Security Letters" to Collect Reporters' Phone Records

OK, I just got off the phone with an FBI spokesman, William Carter, and it's true: The FBI won't confirm -- or deny -- whether the FBI is using so-called "National Security Letters" in getting hold of reporters' phone records as part of the agency's investigation into leaking.

Obviously that means that the FBI may be using National Security Letters, or NSLs. Or that they may not. But we certainly can't rule it out -- which makes this story more interesting, as I'll explain. What's more, Carter also added a bit more detail that thickens this plot.

One of the key questions, as Josh Marshall has pointed out, about the Brian Ross story saying the FBI is seeking reporters' phone records in leak investigations is the following: Is this or is this not being done with an NSL?

Here's why that's key. For those of you just coming to this story, the FBI acknowledged yesterday that it is increasingly seeking reporters' phone records in leak investigations. There are two ways the FBI can get these records. Either the FBI can get warrants and subpoenas. Or it can get the records -- without approval of a judge or a subpoena -- if it issues a National Security Letter.

So which is it? Asked directly, Carter declined to say -- or to rule out either option.

The reason this is important is that legal experts think that while the amended Patriot Act has loosened the restrictions for use of an NSL, there are still only two scenarios that allow for its use: investigations into either espionage or into terrorism. Kate Martin, the director of the Center for National Security Studies, emailed me this quote:
If the FBI -- presumably with the approval of the Attorney General and the Director of National Intelligence -- interprets the Patriot Act amendments to allow them to use secret National Security Letters to investigate leaks, that's an outrageious violation of the intent of Congress in amending the NSL authority.

Kevin Drum linked to a similar opinion, too.

As Josh noted, if the FBI's going the subpoena route, this might not be a big deal at all. But if it's going the NSL route, it could be a very big deal indeed. In the most recent AP story, which quoted FBI spokesman Carter as saying Ross's story is "misleading," Carter wasn't asked to address the question and didn't shed any light on it.

So: Is the FBI using National Security Letters, or not? When I posed the question directly to Carter, he replied:

"I can't comment on what specific investigative techniques would be used in any investigation. But the FBI will take logical investigative steps to determine if a criminal act has been committed by a U.S. government employee."

OK. So now we know that the FBI isn't denying or ruling out (or confirming) the possibility that it is using NSLs.

That seems to me to lead to the next key question: Is there any scenario under which a leak investigation could fall under the rubric of an espionage or terrorism investigation, as required for use of an NSL?

When asked that question, Carter declined to comment, beyond noting that "the leaking of classified U.S. government information is a national security issue." Instead, he referred me to the Department of Justice, saying that they'd be the ones to determine such a thing as part of the approval process for NSLs. This would seem to suggest that it's not an impossibility at all that the FBI might try to use an NSL in a leak investigation. So next stop is Justice. When I get through to them you'll be the first to know.

Meanwhile, Carter added something else of interest. He said that the FBI wouldn't need a subpoena to get the phone records of any government employee (unless he or she used a privately-owned phone) as part of such an investigation. So it's possible that the government may have learned about Ross's calls another way -- by, say, getting the records of an employee suspected of leaking and learning that he or she had called Ross.

Anyway, there's no way of knowing whether this really amounts to anything or not. There's a great deal that's still vague about this unfolding story. It's some pretty dense fog, and the more light shined into it, the better.

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