Counterterrorism officials in FBI headquarters slowed an investigation into a possible conspirator in the 2005 London bombings by forcing a field agent to return documents acquired from a U.S. university. Why? Because the agent received the documents through a lawful subpoena, while headquarters wanted him to demand the records under the USA Patriot Act, using a power the FBI did not have, but desperately wanted.
At this July 27, 2005 hearing, FBI Director Robert Mueller pushed the Senate Judiciary Committee to give FBI agents expanded spying powers.
When a North Carolina State University lawyer correctly rejected the second records demand, the FBI obtained another subpoena. Two weeks later, the delay was cited by FBI director Robert Mueller in congressional testimony as proof that the USA Patriot Act needed to be expanded.
The strange episode is recounted in newly declassified documents obtained by the Electronic Frontier Foundation under the Freedom of Information Act. The documents shed new light on how senior FBI officials’ determination to gain independence from judicial oversight slowed its own investigation, and led the bureau’s director to offer inaccurate testimony to Congress. The revelations are likely to play a key role in Capitol Hill hearings Tuesday and Wednesday on the FBI’s use of so-called national security letters, or NSLs
At issue is the FBI’s probe of a former chemistry graduate student at North Carolina State University who was then suspected aiding the deadly attack. The student has since been cleared of any involvement.
The agent investigating the student in the Charlotte, North Carolina field office obtained a grand jury subpoena demanding some university records on the student. But he was then advised by superiors in Washington DC to return the papers and draft an NSL demanding the documents instead.
Under the USA Patriot Act, FBI counterterrorism investigators can self-issue such letters to get phone records, portions of credit reports and bank records, simply by certifying that the records are relevant to an investigation. Unlike subpoenas, NSLs do not require probable cause, and at the time obliged the recipient to not discuss the demand with anyone, ever. In contrast, gag orders attached to grand jury subpoenas have expiration dates.
FBI agents have relied heavily on the power, issuing more than 100,000 NSLs in 2004 and 2005 combined. The first audit of the FBI’s use of the power found the agents became sloppy in their use of the power and one HQ office went rogue and issued hundreds of fake emergency requests for phone records.
The problem in the bombing case: the NSL demanded the university’s health records on the student. Even under the USA Patriot Act, which greatly expanded the NSL’s reach, university records and health records are exempt, making the order from headquarters a sure-fire path to delay.
The FBI even has sample letters for each of the 11 kinds of records NSL can be used to obtain. To comply with the demand from Washington, the Charlotte agent had to modify a sample letter intended for internet records.
The university, which had readily turned over the records in response to a subpoena, rejected the illegal NSL. Two weeks later, Mueller, testifying before the Senate Judiciary Committee, portrayed the university as intransigent and said the incident showed the FBI needed the power to force the turnover of all sorts of records without having to involve the court system.
“Now in my mind, we should not, in that circumstance have to show somebody that this was an emergency,” Mueller testified on July 27, 2005. “We should’ve been able to have a document, an administrative subpoena that we took to the university and got those records immediately.”
Some of the declassified documents suggest that Mueller was himself misled by underlings, and wasn’t told that the records had already been turned over in response to a subpoena.
Additionally, no one reported the overreaching subpoena to the Intelligence Oversight Board until 2007, when the Inspector General started asking questions. Oversight rules require officials to report any possible violations within 14 days.
This week, the House and Senate Judiciary committees are holding new hearings on NSLs. Over the past two years, the Justice Department’s Inspector General has issued two damning reports on the agency’s sloppiness in using the letters. Additionally, several courts have struck down some aspects of the NSLs as unconstitutional, and reports have surfaced that intelligence and military units are using them for domestic investigations.
Congressman Jerrold Nadler (D-New York) has introduced legislation to rein in the use of national security letters, and provide penalties for abuses.
UPDATE: FBI General Counsel Valerie Caproni responded to questions about the incident from Rep. Nadler in a hearing Tuesday, essentially saying it wasn’t a big deal since the FBI was entitled to the records, anyhow:
“I am not quite sure why the direction was give to issue an NSL in that case,” Caproni said. “As I look at what I believe they were seeking from the university, an NSL was not the way to go. It’s unclear why HQ chose the wrong tool.” Wired