Exposing How the Government Lied about National Security Letters and the Patriot Act

Last week, I was honored to be invited to testify before the Senate Judiciary Committee about the Patriot Act, a new endeavor for the Center for Media and Democracy, even though CMD has covered national security-related issues in its books and on SourceWatch.

One of the reasons I was so pleased to be able to join CMD is because in Washington, DC, I saw first-hand how propaganda and selective disclosures were used to influence and distort public opinion. In my testimony, I highlighted examples from the Patriot Act debate in 2005 where key information was hidden while the bill for reauthorization was being publicly debated, and did not come out until after the bill had passed. With parts of the Patriot Act up for renewal and reform this fall, I wanted to make sure the public record included the story of how the previous Bush administration misled the American people. I also wanted to share my views about why these extraordinary powers need to be fixed to better protect civil liberties and human rights.

Here below is a modified excerpt from my formal statement that highlights one of the examples of how extreme secrecy and lies were used to obscure the truth and distort the democratic debate over these very intrusive and secretive powers:

In the debate over the Patriot Act in 2005, the Bush Administration made a deliberate decision to voluntarily de-classify certain statistics about how infrequently certain powers to obtain business records were used, namely Section 215 court orders. It disclosed that this power had been used a few dozen times, and it used this fact to attack opponents as over-reacting to the potential danger of the powers expanded by the Patriot Act.

At the same time, the Bush Administration adamantly refused to disclose the number of demands for a wide range of business records available without a court order under the powers that were expanded by Section 505 of the Patriot Act, which is known as the "National Security Letter" (NSL) power. One way to think about the relationship between Section 215 orders for any tangible thing and Section 505 demands for information about financial transactions, phone records, internet transactions (who you e-mail and who e-mails you), and credit reporting information is to think of a circle within a circle. Everything covered by a Section 505 demand also counts as a tangible thing under Section 215, but not every tangible thing is a financial, internet, phone, or credit record.

The Justice Department subsequently admitted how the lowered standards for issuing NSLs affect ordinary Americans:

"Likewise, investigative and intelligence authorities that were enacted or expanded in the Patriot Act [and the 2005 reauthorization] invest broad new information-gathering powers in FBI agents and their supervisors ... on a minimal evidentiary predicate. For example, ... it authorized the FBI to collect information such as telephone records, Internet usage, and credit and banking information on persons who are not subjects of FBI investigations. This means that the FBI -- and other law enforcement or Intelligence Community agencies with access to FBI databases -- is able to review and store information about American citizens and others in the United States who are not subjects of FBI foreign counterintelligence investigations and about whom the FBI has no individualized suspicion of illegal activity."

NSLs are very dangerous to individual liberty. This is because NSLs are issued by the FBI without any court approval whatsoever. These are unilateral, coercive, and secret demands by FBI agents to businesses for personal, private information about you, without even having to show the secret FISA court in Washington any evidence supporting the request. So, of course, we in the civil liberties community believed these powers were being widely used. And, even though this controversial power became a major part of the reauthorization debate in 2005, the administration refused to make public even the number of requests made, while touting the assertion that it had used the related Section 215 powers sparingly, only a handful of times.

The ACLU, where I previously worked as senior legislative strategist, filed a Freedom of Information Act request for the numbers of NSLs. The FBI ended up giving them a six-page document in which nearly every entry related to the number of NSLs was redacted except for the words "Grand Total." It literally took an act of Congress to dislodge the information about how often NSLs had been used, through required audits and reporting, which were some of the only real improvements made in the deeply flawed 2006 reauthorization of the Patriot Act.

But, in November 2005 as the Patriot Act was being delayed by a mounting filibuster in the Senate, an investigative piece by the Washington Post's Bart Gellman quoted government sources reporting that the number of NSL requests had exploded to over 30,000 per year. The Justice Department harshly attacked the article in a letter to then-Chairman Specter signed by William Moschella, and called the 30,000 figure "inaccurate." I myself heard from a number of staff and reporters that the administration had absolutely denied that anywhere near this number of demands had been made, just as the NSL powers were being debated on the Hill and in public. Congress responded to the controversy by requiring an audit of the number of times the power was being used.

That is how, in 2007, due to that mandatory audit which I urged and also assessed in previous testimony, we learned the truth. We learned that the true number of the FBI's unilateral and secret NSL demands in 2004, the year before Bart Gellman's article was published, was over 56,000. That is, the government made over 56,000 secret demands for personal, private information about Americans using these powers expanded by the Patriot Act in one year. Not 30,000 as Gellman had estimated based on whistleblower information, which the Justice Department strongly attacked as inaccurate. The number reported in the press was not too big. It was too small!

The Bush Administration attempted to sidestep this dispute by asserting that its statements were based on counting only the number of letters and not the number of requests. Yet, administration officials had to know that individual letters often had multiple requests for information about multiple people. In fact, as the audit documented, one investigation alone in 2004 used nine NSLs in the U.S. to obtain information about over 11,000 people.

To this day, there has been no real accountability for the way the public was misled by DOJ at that crucial moment in the Patriot Act debate in 2005.

(And, now, we are at another crucial moment in the debate over these and related powers. As early as this Thursday, the Senate Judiciary Committee may begin marking up a bill to reauthorize the Patriot Act with some improvements. But, more reforms are needed to protect individual liberty and prevent any administration from hiding the truth about these powers, even if reformed, in these ways, I plan to keep you posted on additional developments in the Patriot Act reauthorization debate and will be asking for your help in the coming days and months..)

Lisa Graves is the Executive Director of the Center for Media and Democracy based in Madison, Wisconsin.