Too Much Power
By The Washington Post | Editorial
Sunday 04 January 2004
This year's intelligence authorization bill provided a little-noticed and dangerous expansion of a peculiar and unaccountable FBI investigative power. Last-minute efforts to modify the provision in conference committee failed, unfortunately, so the bureau now has more power to compel the production of certain business records in national security investigations, with no court oversight and in nearly total secrecy. The use of "national security letters" is not new, but in light of new authorities provided the FBI in the USA Patriot Act, Congress should be finding ways to curtail their use, not expand it.
National security letters are a form of administrative subpoena that permit the FBI to request from businesses records of, among other things, telephone and Internet activity or financial data from banks and other financial institutions bearing on investigative targets in counterintelligence or terrorism cases. These subpoenas are secret; the recipient cannot disclose having received one. And the letters can be issued by relatively low-level bureau officials without going to any court. In the Patriot Act, Congress made this process easier, removing the requirement that the FBI have specific facts linking the subject to a foreign power to justify each letter. Now, to issue a national security letter, the FBI merely has to certify that the information is "relevant" to a national security investigation. The only reason national security letters have not posed a significant threat to civil liberties is that they have applied only to relatively narrow categories of records.
That will now begin to change. The definition of "financial institution" in the new law is expanded to include insurance companies, pawnbrokers, dealers in precious metals, the Postal Service, casinos, travel agencies and more. The FBI, on the authority of individual supervisory agents, can now get any of these businesses to disclose its dealings with anyone if the bureau deems those records relevant to counterterrorism. This is more unchecked power than the agency ought to have.
The Patriot Act already gave the FBI wide-ranging power to seek a much broader category of "business records" -- but with the approval of a special court that authorizes surveillance in national security cases. The standard is not high, but by giving a federal judge the chance to look at the application, the law creates some accountability. Ironically, it is this unobjectionable provision in the Patriot Act that has attracted the ire of civil libertarian and library groups. In our view, the objections are wrongheaded; the provision merely parallels the government's authority in criminal cases to seek business records using grand jury subpoenas. But now Congress has taken action that really is worth worrying about, giving the government another authority for whose use it need seek leave only from itself. |
