New documents uncovered as a result of an American Civil Liberties Union and New York Civil Liberties Union lawsuit reveal that the Department of Defense secretly issued hundreds of national security letters (NSLs) to obtain private and sensitive records of people within the United States without court approval. A comprehensive analysis of 455 NSLs issued after 9/11 shows that the Defense Department seems to have collaborated with the FBI to circumvent the law, may have overstepped its legal authority to obtain financial and credit records, provided misleading information to Congress, and silenced NSL recipients from speaking out about the records requests, according to the ACLU.
“Once again, the Bush administration’s unchecked authority has led to abuse and civil liberties violations,” said ACLU Executive Director Anthony D. Romero. “The documents make clear that the Department of Defense may have secretly and illegally conducted surveillance beyond the powers it was granted by Congress. It also appears as if the FBI is serving as a lackey for the DoD in misusing the Patriot Act powers. At the very least, it certainly looks like the FBI and DoD are conspiring to evade limits placed on the Department of Defense’s surveillance powers.”
NSLs are secretly issued by the government to obtain access to personal customer records from Internet service providers, financial institutions, and credit reporting agencies. In almost all cases, recipients of the NSLs are forbidden, or “gagged,” from disclosing that they have received the letters. While the FBI has broad NSL powers and compliance with FBI-issued NSLs is mandatory, the Defense Department’s NSL power is more limited in scope, and, in most cases, compliance with Defense Department demands is not mandatory.
In April, the ACLU filed Freedom of Information Act requests with both the Defense Department and the CIA seeking all documents related to their use of NSLs to gain access to personal records of people in the United States. And in June, the ACLU filed a lawsuit to force those agencies to turn over the requested documents. The Defense Department’s NSL documents are the first materials received by the ACLU as part of this lawsuit.
“The expanded role of the military in domestic intelligence gathering is troubling. These documents reveal that the military is gaining access to records here in the U.S. – in secret and without any meaningful oversight,” said Melissa Goodman, staff attorney with the ACLU’s National Security Project. “There are real concerns about the use of this intrusive surveillance power.”
As first revealed by the New York Times in January, recipients of the letters have reported confusion over the scope of the information requested and whether compliance with the NSLs is legally required. The documents released to the ACLU confirm that the letters are coercive and do not make clear that compliance with the Defense Department’s “requests” for information is voluntary.
These revelations about the Defense Department’s use of NSLs come on the heels of widespread reports of other significant government abuses of the NSL power. A March 2007 report from the Justice Department's Inspector General (IG) estimated that the FBI issued over 143,000 NSLs between 2003 and 2005, an astronomical increase from previous years. The IG's report also found numerous examples of improper and illegal uses of NSLs by the FBI.
The Defense Department documents uncovered today contain numerous revelations of potential abuses of the National Security Letter power:
- Documents show the Defense Department may be flouting the law and, by simply asking the FBI to issue the NSLs on their behalf, accessing documents it is not entitled to receive. There is no evidence that the FBI has ever turned down such a request. (See document page 60)
- The Defense Department told Congress that it seeks NSL assistance from the FBI only in joint investigations, but an internal program review shows that the military asks the FBI to issue NSLs in strictly Defense Department investigations. (See document pages 178-80)
- A heavily redacted copy of the results of an internal program review prompted after the New York Times reported potential abuses of the military’s NSL power shows that the Defense Department has issued NSLs with little guidance or training, no coordination within the military, no real recordkeeping, and an inadequate review process. A Defense Department action memo identifies and recommends fixing these flaws. (See document pages 49, 54-73)
- Although compliance with Defense Department-issued NSLs is voluntary, the coercive language found in these letters would lead a reader to believe compliance was mandatory. For example, one NSL was stamped multiple times with the words “subpoena” and “non-disclosure obligation” to intimidate its recipients with authority the Defense Department does not have. According to Navy records, no credit agency has ever refused to comply with the military’s requests, and only two financial institutions have refused to comply. (See document pages 16-18, 87)
- The Defense Department appears to “gag” all NSL recipients as a matter of course, and, despite recent changes to the law, the NSLs issued by the Defense Department do not inform recipients of their new right to challenge the request and gag order in court. (See document pages 87, 303, 1040)
- The Defense Department can use NSLs to gather information on individuals not suspected of wrongdoing. (See document pages 112-114)
“The Fourth Amendment protects against the government’s effort to rummage broadly through the papers and documents of individuals without narrow and specific justifications,” said Arthur Eisenberg, NYCLU legal director. “Yet the excessive secrecy surrounding the military’s use of national security letters opens the door to abuse. Without oversight and accountability, there is nothing to stop the Defense Department from engaging in broad fishing expeditions.”
The ACLU has successfully challenged the NSL power in two separate lawsuits. In one case involving an Internet Service Provider, a federal court in September struck down as unconstitutional the National Security Letter provision of the Patriot Act authorizing the FBI to demand a range of personal records without court approval, and to gag those who receive NSLs from discussing the letters.
Senator Russ Feingold and Representative Jerrold Nadler have introduced legislation to rein in this unchecked NSL authority. The ACLU urges immediate consideration of these bills in light of this new information.
Attorneys in the case are Goodman and Jameel Jaffer of the ACLU’s National Security Project and Eisenberg of the NYCLU.
All of the Defense Department documents obtained by the ACLU are available at: www.aclu.org/safefree/nationalsecurityletters/32088res20071006.html
A copy of the legal documents in this case can be found at: www.aclu.org/safefree/nationalsecurityletters/30295lgl20070628.html