The New York Times is reporting that the CIA and the Pentagon have been issuing National Security Letters to obtain bank records and other information without having to go through the normal process of getting a warrant or subpoena from a court.
The Pentagon has been using a little-known power to obtain banking and credit records of hundreds of Americans and others suspected of terrorism or espionage inside the United States, part of an aggressive expansion by the military into domestic intelligence gathering.
The C.I.A. has also been issuing what are known as national security letters to gain access to financial records from American companies, though it has done so only rarely, intelligence officials say.
Banks, credit card companies and other financial institutions receiving the letters usually have turned over documents voluntarily, allowing investigators to examine the financial assets and transactions of American military personnel and civilians, officials say.
National Security Letters are authorized for use by the FBI through Federal statute, but apparently not authorized for any other agency to use. The Times reports that the Pentagon and the CIA have been issuing “non-compulsory” versions of NSLs, but not making clear to the financial institutions that they do not need to comply:
But it was not previously known, even to some senior counterterrorism officials, that the Pentagon and the Central Intelligence Agency have been using their own “noncompulsory” versions of the letters. Congress has rejected several attempts by the two agencies since 2001 for authority to issue mandatory letters, in part because of concerns about the dangers of expanding their role in domestic spying.
The military and the C.I.A. have long been restricted in their domestic intelligence operations, and both are barred from conducting traditional domestic law enforcement work. The C.I.A.’s role within the United States has been largely limited to recruiting people to spy on foreign countries.
Carl Kropf, a spokesman for the director of national intelligence, said intelligence agencies like the C.I.A. used the letters on only a “limited basis.”
The fact that Congress has refused to give such authority to those agencies in the past is a very key fact; it means that any attempt to argue that they have such authority under current statutes is a sham. Orin Kerr, who specializes in national security law, has a post about this at Volokh. He writes:
My best guess as to what is happening is something like Bruce Boyden’s. First, I think the DoD and CIA reasonably read that language as letting them make voluntary requests for financial information otherwise requiring a NSL. The Times story suggests a twist, though; instead of just informally requesting information in a context that would make clear the request is voluntary, the DoD and CIA seem to be issuing their requests using letters that look a lot like “real” National Security Letters. If that’s right, the government would know that the letters have no legal effect, but they would be written so as to try to trick the recipients into thinking that they do.
In particular, note that the Times story refers to the DoD/CIA letters as “noncompulsory versions” of NSLs, and reports that “Congress has rejected several attempts by the two agencies since 2001 for authority to issue mandatory letters” like those that the FBI issues. It also states that “[l]awyers at financial institutions, which routinely provide records to the F.B.I. in law enforcement investigations, have contacted bureau officials to say they were confused by the scope of the military’s requests and whether they were obligated to turn the records over.” If I’m not mistaken, the answer to the lawyers’ question is that they are not obligated to turn over the records. The statute seems to permit it, but I don’t know of any provision that compels it.
All of this, of course, is part of a larger and quite disturbing tendency of this administration to avoid judicial oversight whenever possible. If they have just cause to need such records, they can easily obtain a warrant to get them; if they don’t have just cause to need them then they should not have access to them. The only way to ensure that they have such cause is for them to make that case before a judge, as the government is required to do in any other situation.
This administration has been absolutely fanatical in claiming unbridled authority to do virtually anything it wants without any safeguards whatsoever. Not only do they claim the authority to spy on American citizens without a warrant from the courts, they also claim that no court can even hear a case challenging that authority, effectively giving them complete and unquestioned authority with no oversight whatsoever. I’ve said it before, I’ll say it again: Bush should be impeached. He has violated his oath to protect the Constitution and is thus unfit for office.