Quite understandably, there is hue and cry over the Justice Department Inspector General’s report about the FBI’s misuse of its authority to issue National Security Letters. (See the NYTimes and WPost.) NSLs enable the Bureau to compel information without consulting with the Justice Department or going through a court as the FBI must do to get grand jury subpoenas or so-called “Section 215 orders” (named after the Patriot Act section that was caricatured as the “Library Records” provision but which actually deals with all kinds of business records.)
The controversy is maddening because it is a self-inflicted wound that will have outsized consequences. “Self-inflicted” not only because the FBI has failed to follow the rules but because it is dubious whether our national security required giving the FBI NSL authority in the first place — even though the FBI and DOJ aggressively lobbied congress for it. “Outsized” because the press and civil liberties extremists will inevitably conflate NSLs with the Patriot Act and other investigative powers that really are crucial. There is already a push for cut-backs, and we’re hearing “I told you so” from many people who have been railing hysterically about Big Brother since 9/11. (It is worth bearing in mind here that Inspector General found the FBI’s mistakes here were based on incompetence, not malevolence; aside from not being disposed toward it, our government seems incapable of being Big Brother.)
A couple of years ago, I wrote this long piece about “administrative subpoenas,” which are nearly indistinguishable from NSLs. Back then, congress was considering expanding their use and the ACLU was complaining but failing to make the best arguments against them. The last section discusses why allowing the FBI unilaterally to issue its own legal process, rather than go through a Justice Department attorney, is questionable policy that unnecessarily risks intrusions on the privacy of innocent people. Unfortunately, it looks like some of this has come home to roost.