Improper National Security Letter Issued at Direction of FBIHQ; Not Reported For Nearly Two Years
Documents obtained by an EFF Freedom of Information Act request show that a high profile misuse of the Federal Bureau of Investigation’s National Security Letter authority went unreported to the Intelligence Oversight Board for almost two years.
The improper NSL was issued at the direction of FBI headquarters, after the FBI already had the documents in hand pursuant to an earlier subpoena. While the matter received the personal attention of FBI Director Robert S. Mueller III, as well as officials with the FBI Office of the General Counsel, and was covered in news media, it was not formally reported until a short time before Inspector General Glenn Fine’s report on the abuse of NSLs was due before Congress. While the report identified dozens of instances in which National Security Letters may have violated laws and agency regulations and were not reported, this is the first time documents have that shown top FBI executives were aware of a misuse before it was officially reported.
Key Points1. FBI documents show that, over the span of three days in July 2005, the Bureau first obtained educational records pursuant to a grand jury subpoena, and then at the direction of FBIHQ returned the records and sought them again pursuant to an improper NSL. The improper NSL was refused by the university, but the FBI finally obtained them pursuant to a second grand jury subpoena.
2. Later in July 2005, FBI Director Mueller used the delay in obtaining these records as an example of why the FBI needed administrative subpoena power instead of NSLs.
3. The misuse of the NSL was not formally reported until February 2007.
It all began on July 13, 2005, when the agents from the FBI’s Charlotte field office sought educational records from North Carolina State University at Raleigh, first using a grand jury subpoena obtained in conjunction with the United States Attorney's Office in the Eastern District of North Carolina (EDNC). The FBI worked with EDNC Judge Terrence Boyle to obtain a "sealed court order" to accompany the subpoena. The authorities were seeking information on Magdy Mahmoud Mustafa el-Nashar who, according to USA Today, “was a graduate student in chemical engineering for the spring 2000 semester at N.C. State.”
El-Nashar is an Egyptian bio-chemist who, after leaving N.C. State, obtained a Ph.D. in biochemistry from the University of Leeds in England in Spring 2005. The authorities were interested in his educational records since el-Nashar had met two of the London subway bombers, and allowed one to stay at his apartment in Leeds. According to the International Herald Tribune, he was held for questioning but eventually released without charge “after investigations proved he was not linked to the July 7 bombings.” Eventually news reports would reveal that "it was all a sorry coincidence, a case of a man who happened to befriend the wrong people at the wrong time." However, at the time, USA Today reported, the “FBI was investigating el-Nashar's activities in the USA at the request of British authorities.”
On July 14, USA Today reported that “Peter Kilpatrick, the head of N.C. State's chemical engineering department, said he handed over his files on el-Nashar to FBI agents,” but did not explain what legal authority was used. A later Newsweek report stated "In the United States, FBI agents visited North Carolina State University and served a subpoena on Peter Kilpatrick, head of the school's chemical- and biomolecular-engineering department, who handed over all available records pertaining to Nashar's brief stint as a chemical-engineering student there in early 2000." However, a Washington Post report later said that "the university did not honor" the first subpoena.
According to a 2007 FBI report, a Special Agent with the FBI’s Raleigh Resident Agency “served the subpoena and had some records in hand,” when he received a call from Michael Saylor, the Supervisory Senior Resident Agent (SSRA) for Raleigh. According to a 2005 FBI email describing the incident, “this [grand jury subpoena] process was stopped at the direction of” FBI headquarters’ Counter-Terrorism Division. According to 2007 FBI documents, the Special Agent returned the records obtained by the original grand jury subpoena.
The Improper National Security Letter
Instead of the grand jury subpoena, Saylor, the Raleigh SSRA, was told that the FBI must get the educational records pursuant to a National Security Letter. A National Security Letter is a letter by which the FBI may request limited types of information (not including educational records) from a third party without prior judicial approval in national security investigations. At the time, NSLs came with an automatic gag order prohibiting the recipient from disclosing the existence of the letter.
FBI documents show that the instruction to use the NSL for educational records specifically came from “ITOS I, CONUS II, Team 6.” ITOS stands for the International Terrorism Operations Section, while CONUS refers to the Continental United States.[CTD Org. Chart]. The FBI explains that “The International Terrorism Operations Section I (ITOS I) supports, coordinates, and provides oversight of FBI international counterterrorism operations related to al Qaeda and other Sunni extremist groups.” It is part of the Counter-Terrorism Division, which was then headed by Assistant Director Willie T. Hulon. Michael J. Heimbach was the ITOS I Section Chief. ITOS I is one of two parts of "Operations I" (OPS I) within the Counter-Terrorism Division. In 2005, OPS I was headed by Deputy Assistant Director Joseph Billy, Jr.
Michael Saylor, the Raleigh SSRA, initially suggested that FBIHQ approve the NSL, but "was then instructed by FBIHQ, ITOS I, CONUS II, that Charlotte would be required to draft the NSL, due to time constraints." An unidentified agent drafted the NSL. Since none of the 11 model NSLs forms are for educational records, the agent would have had to be creative. [A 2005 Model NSL]. An April 2005 memo from the National Security Law Branch required that "when an NSL is utilized, a copy of the EC [Electronic Communication] is properly reported and uploaded via established FBIHQ control files." [A 2005 Model EC]. The three available options were "Subscriber and Toll Billing Records," "Financial Records," and "Consumer Credit Records." Educational records were not an option. It is unclear what control file was used for this NSL.
The NSL was reviewed by Saylor and then approved by Gregory Jones, the Special Agent in Charge of the Atlanta division (Kevin Kendrick, the Charlotte SAC not being available in time). Pursuant to the expansions of the NSL power in the Patriot Act, no more senior personal was required to authorize the letter. A Joint Terrorism Task Force (JTTF) Agent served the NSL on July 14. According to the DOJ Inspector General report, “the NSL sought several categories of records, including applications for admission, housing information, emergency contacts, and campus health records.”
According to news reports, David T. Drooz, the university's senior associate counsel, refused to comply because these records are outside scope of the NSL authority. The NSL was issued pursuant to the Electronic Communications Privacy Act (18 U.S.C. § 2709), as expanded by Section 505 of the USA PATRIOT Act. Under the statute, the FBI is only authorized to used the letters seek “subscriber information and toll billing records information, or electronic communication transactional records,” not educational records. This is not a legal gray area - there is no dispute that educational records are outside the scope of NSL authority.
Almost two year later, the DOJ Inspector General would agree with the university’s assessment, concluding “the FBI sought records it was not authorized to obtain pursuant to an ECPA national security letter.” Indeed, even the FBI’s FAQ on NSLs confirms that NSLs are only for “billing and transactional communication service provider records from telephone companies and internet service providers.” The FBI's guidance on NSLs is no different, listing "seven variations of the three NSL types," none of which include educational records. Eventually, the Office of the General Counsel would conclude that “Charlotte served an NSL requesting records outside the permissible scope of an NSL.”
At the time the NSL was approved, FBIHQ and the Charlotte Chief Division Counsel (Eric Davis) was “involved in this through out the process,” including contacts with the FBI Office of the General Counsel. The Office of the General Counsel report in 2007 noted that “Charlotte acted upon the advice and direction of FBIHQ,” which it considered to be a “mitigating factor” when judging the FBI field office’s performance.
The Second Grand Jury Subpoena
Due to the objection of Drooz, the FBI dropped the NSL and came back with another grand jury subpoena on July 15, 2005. The supervisory agent for the office that served the second subpoena reported:
[Drooz] stated that we should have presented him with a court order under the Patriot Act and also that he wanted each individual who had records [REDACTED] to be named in the subpoena. He also made some additional remarks that I will not go into at this time. Bottom line is we told him to consider himself served and provided him with the subpoena.
Drooz was likely referring to Section 507 of the Patriot Act, which amended the Family Educational Rights and Privacy Act (20 U.S.C. 1232g). Ordinarily, universities may not disclose student records in response to a subpoena without giving the student notice and an opportunity to object [More Info].
The Patriot Act’s amendment allows the Attorney General (or a designated Assistant Attorney General) to apply for a court order allowing the government to “collect education records in the possession of the educational agency or institution that are relevant to an authorized investigation or prosecution of … an act of domestic or international terrorism.” The Attorney General must certify that there are “specific and articulable facts giving reason to believe that the education records are likely to contain” the relevant information. (By contrast, an NSL does not require court involvement or a showing of “specific and articulable” facts). Section 1232g also allows disclosure to persons designated in a federal grand jury subpoena without notice to the student, with an appropriate court order.
As Drooz later described it to the Washington Post, the
university still had doubts about its legal sufficiency. This time, however, it came from New York and summoned Drooz to appear personally. The tactic was ‘a bit heavy-handed,’ Drooz said, ‘the implication being you're subject to contempt of court.’
New York was the office of origin for the investigation. About an hour after the subpoena was served, on July 15, the university complied.
The matter had the personal attention of FBI Director Robert S. Mueller, III. According to a July 21, 2005 internal FBI email message, a member of the Counter-Terrorism Division received an urgent call from the Office of Congressional Affairs saying that:
The Director has requested a write up on the circumstances surrounding the NSL letter issued to [NC State] ... The Director would like to use this as an example tomorrow as to why we need administrative subpoenas to fight the war on terror. In particular, he would like to know how much extra time was spent having to get the Grand Jury subpoena.
The field office responded within hours. Subsequently, on July 27, 2005, Mueller used the FBI’s inability to obtain the information pursuant to this improper NSL as an example in Congressional testimony. His testimony did not mention that the NSL exceeded the scope of the statutory authority, nor that the FBI had originally sought a subpoena and had records in hand before reversing course. Instead, he used the example to press for greater surveillance powers, testifying that the objections to the NSL “resulted in a two-day delay.” (The supervisory agent involved, however, only said that the “process delayed us approximately one day in obtaining the records.”)
Nearly Two Years Without A Report
In November 2005, the Washington Post published a lengthy and detailed report on NSL abuse, including the NSL to NCSU-Raleigh. The article cited an anonymous "high-ranking FBI official" as acknowledging that “the field office erred in attempting to use a national security letter.”
While the article provoked a lot of discussion internally, the DOJ downplayed the article publicly. Assistant Attorney General William Moschella wrote a letter to Congress stating that the Washington Post article presents a “materially misleading portrayal” of the FBI’s use of national security letters. Moschella did not specifically object to any of the reported facts about the NC State NSL, but stressed that NSLs "will go through at least two levels of oversight, including legal compliance." The letter was sent to the Chairmen of the House and Senate judiciary committees and circulated internally. [Read the Post's response].
A few days after the Washington Post report, Rachel Brand, the Assistant Attorney General for Legal Policy and FBI Deputy Director John Pistole wrote an op-ed in USA Today entitled “Safeguards are in place.” They argued that NSLs “may be used only to obtain narrow categories of information. For example, the FBI may obtain credit-card billing records to attempt to learn the identity of a terrorist suspect. An NSL may not be used to obtain the contents of an e-mail or a telephone conversation. And if the FBI went beyond these legal constraints, the recipient could challenge the NSL in court.”
Despite the attention NC State NSL received from high level DOJ and FBI officials, the improper use of the letter was not formally reported to the Office of the General Counsel as a potential IOB violation until February 21, 2007, over 18 months after the incident, and only after the Inspector General was investigating the incident.
The Intelligence Oversight Board is a standing committee of the President's Foreign Intelligence Advisory Board. Among other responsibilities, the IOB is charged with reviewing the FBI's practices and procedures relating to foreign intelligence and foreign counterintelligence collection.
Executive Order 12863 mandates that the Assistant Director, Inspection Division (INSD), and the FBI’s General Counsel report to the IOB intelligence activities that they have reason to believe may be unlawful or contrary to an Executive Order or Presidential Directive. For most of the time while the incident went unreported, Charlene B. Thornton was the INSD Assistant Director and Valerie E. Caproni was the General Counsel. In November 2006, Thornton became the SAC of the San Francisco field office. Caproni remains the General Counsel.
According to a Office of the Inspector General report:
The procedures require FBI employees to report potential IOB violations ... within 14 days of discovery both to the FBI’s National Security Law Branch (NSLB) in FBI-OGC and the Internal Investigations Section (IIS) of the FBI Inspection Division. FBI headquarters’ divisions and field office supervisors also are responsible for monitoring intelligence activities and reporting possible IOB violations to FBI-OGC and IIS. Each FBI field office and headquarters’ division is required to submit quarterly reports to FBI-OGC certifying that all employees were contacted concerning the requirements to report possible IOB matters.
Eventually the Office of the General Counsel would determine that the Charlotte field office had "served an NSL requesting records outside the permissible scope of an NSL," and that the matter should be reported to the IOB.
However, in the interim after the NSL was misused but before it was officially reported to the Inspector General or the Intelligence Oversight Board portions of the Patriot Act came up for reauthorization. The Patriot Act provided the FBI with expanded NSL powers, without which the NC State NSL would have required the sign-off of higher level officials. In arguing for re-authorization, the DOJ cited “a four-year track record with no verified civil liberties abuses” in a press release issued in December 2005, despite the Washington Post story report on the NC State NSL.
The DOJ line was effective. For example, House Judiciary Committee Chairman Sensenbrenner would write in an op-ed in support of the renewal of the Patriot Act:
Zero. That's the number of substantiated USA Patriot Act civil liberties violations. Extensive congressional oversight found no violations. Six reports by the Justice Department's independent inspector general, who is required to solicit and investigate any allegations of abuse, found no violations.
Rep. Sensenbrenner wrote his op-ed in March 2006, almost a year before the matter was reported to the Inspector General. Later that month, the Patriot Act was renewed by Congress.
There may have been an attempt to report the incident earlier. In a December 21, 2006 internal FBI email entitled “Misuse of NSL in Charlotte,” Julie F. Thomas, Deputy General Counsel for the National Security Law Branch (NSLB), wrote that, after the Washington Post article on the NC State NSL, “The GC's recollection is that she told me/NSLB to get them to report this as a potential IOB.” “GC” likely refers to Valerie E. Caproni, the FBI’s General Counsel.
Unable to find such a report, Thomas’ December 2006 email asked if any one else had a recollection. A March 8, 2006 report by the Office of the Inspector General, which looked at self-reported IOB issues for 2004 and 2005, did not show any such report. However, other FBI emails indicate that by early January 2007, the Office of the Inspector General was investigating the NC State NSL. Despite regulations requiring reports "within 14 days" of discovering a potential violation, Charlotte FBI office did not report the incident as "a potential Intelligence Oversight Board (IOB) matter" until February 21, 2007.
In the wake of the March 2007 Inspector General report, Director Mueller and General Counsel Caproni both stressed the lack of “intentional” misuse. In a March 9, 2007 press release, the FBI National Press office noted “the OIG found no deliberate or intentional misuse of authorities, whether NSL statutes or Attorney General Guidelines.” (The Washington Post would later reveal that there was at least one IOB report of "willful and intentional" misconduct. Caproni's office had filed the report in 2004.)
The Office of the General Counsel officially determined that the NC State NSL was an IOB matter a few days later, on March 13, 2007. The OGC found “a National Security Letter was served requesting records that were beyond the permissible scope of National Security Letter.” Moreover, the OGC found that “The FBI's service of a National Security Letter requesting educational records was in violation of The Attorney General's Guidelines for FBI National Security Investigations and Foreign Intelligence Collection.”
Nevertheless, when Caproni testified a week later on the misused of NSL authorities, she reemphasized that “the OIG found no deliberate or intentional misuse of the national security letter authorities, Attorney General Guidelines or FBI policy.” During her testimony before the House Judiciary Committee , Rep. Forbes asked Caproni whether "anyone in a supervisory position gave instructions, either expressly or impliedly, to any person under his or her supervision to misuse the NSLs?" A week after her Office's report noted that "Charlotte acted upon the advice and direction of FBIHQ" in issuing an NSL for educational records, Caproni responded "Not to my knowledge."
National Security Letter Reform Act
In July 2007, a bi-partisan group of Representatives introduced the National Security Letters Reform Act of 2007 (NSLRA), and in September 2007, a bi-partisan group of Senators introduced their own NSL Reform Act. Congress is currently considering both piece of legislation. Below we consider the effect that the Senate bill might have had on the NC State NSL.
The NSLRA proposes to add clarity to the limits of Section 2709:
(2) LIMITATION- A National Security Letter issued pursuant to this section shall not require the production of local or long distance telephone records or electronic communications transactional information not listed in paragraph (1).
This would clarify that an NSL was not the appropriate method to obtain educational records. While the law was not in doubt at the time of the NSL to NC State, greater clarity coupled with appropriate training may have stopped the FBIHQ from ordering an improper NSL.
NSLRA also adds:
(4) RETENTION OF RECORDS- The Director of the Federal Bureau of Investigation shall direct that a signed copy of each National Security Letter issued under this section be retained in the database required to be established by section 6 of the National Security Letter Reform Act of 2007.
This provision, along with Section 6, would have ensured that the improper NC State NSL was in the record, which would have made it harder for the FBI to fail to report the NSL to the IOB for almost two years.
NSLRA also adds:
(e) Requirement That Certain Congressional Bodies Be Informed-
`(1) IN GENERAL- On a semiannual basis the Director of the Federal Bureau of Investigation shall fully inform the Permanent Select Committee on Intelligence of the Senate and the Select Committee on Intelligence of the House of Representatives, and the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives, concerning all requests made under this section.
This provision would have also helped ensure that the improper NSL was reported to Congress sooner than the nearly two years it took under existing law.
Finally, the NSLRA's sunset provision, bringing Section 2709 back to pre-Patriot Act language, would remove SACs from the list of persons able to approve NSLs. In this case, it would have ensured that a Deputy Assistant Director or more senior personnel signed the NC State NSL. While this improper NSL was issued at the instructions of FBIHQ, it was signed by the SAC of a neighboring division. If a Deputy Assistant Director was required to sign the NSL, responsibility could not be shifted from FBIHQ to a SAC who was not involved in the underlying investigation.
- Why didn’t anyone formally report this matter to the IOB until February 2007? What happened to FBI General Counsel Caproni’s instruction to report the matter after it was disclosed in the Washington Post in November 2005?
- Why did the FBI switch to serving an improper NSL after it already had documents in hand pursuant to a grand jury subpoena? (Caproni's testimony on why the FBI might use NSLs over grand jury subpoenas does not answer this question.)
- Why didn’t the government use the Patriot Act’s provisions for obtaining educational records for terrorism investigations?
- Did Director Mueller know that the FBI had documents in hand prior to the NSL when he testified that the refusal of the NSL resulted in a two-day delay? Why did he call it a two-day delay, when the investigating agents called it a one-day delay?
- Why did the Atlanta Special Agent-in-Charge Gregory Jones authorize an NSL that obviously went beyond what was authorized by statute?
- Records show that an unidentified Acting Special Agent-in-Charge was involved. Was this Robert F. Clifford, FBI Acting Special Agent-in-Charge of the Charlotte Division, and how was he involved?
- Who in the Counter-Terrorism Division authorized the change from a grand jury subpoena to an NSL?
- Does the FBI consider the use of an NSL to seek records beyond the scope of the statute at the specific direction of FBI headquarters not “deliberate” or “intentional”?
- The 2007 OGC report states that "Charlotte personnel sought legal advice prior to the service of the NSL," and the Raleigh Resident Agency reported that the Charlotte Chief Division Counsel and FBIHQ was "involved with this throughout the process." Why didn't any of the FBI lawyers note that the NSL violated the law?
- What explains the apparent discrepancy between the February 2007 formal report to the OGC (saying the first grand jury subpoena was served and documents were in hand) and the July 2005 summary by the investigators (saying that the agents “were in the process of obtaining a subpoena” when FBIHQ stopped the process)?
- What explains the apparent discrepancy between the February 2007 formal report to the OGC (saying documents were provided and returned on July 13, and then provided again on July 15), the July 2005 news reports (saying documents were provided by NC State on or before July 14 pursuant to a subpoena) and the November 2005 Washington Post report (saying the "university did not honor" the initial July 14 subpoena)?
- In 2004, a federal judge in New York had ruled the NSL statute was unconstitutional, and the government had appealed that ruling. There is no indication that the NSL statute's constitutionality was at issue in NC State's refusal. The appeal was subsequently made moot by the March 2006 amendments to the NSL statute, and New York court reconsidered its ruling in light of the changes. In September 2007, the court found the NSL statute was still unconstitutional. [More info].
- In March 2008, the Inspector General issued a second report, finding further problems with the FBI's use of the NSL authority. [Washington Post article; New York Times article]. The House Judiciary Committee has scheduled a hearing on April 15, 2008, and the Senate Judiciary Committee has a hearing on April 16.
- EFF filed its FOIA request in the wake of the inspector general's March 2007 report. When the DOJ did not provide the documents, EFF was forced to sue the DOJ to obtain the documents. On June 16, 2007, a federal judge ordered the FBI to process 2,500 pages a month responsive to EFF's request. The DOJ's response is ongoing.
- The documents provided in response to the FOIA request are heavily redacted, removing the names of most of the participants. The names shown in the report above are based upon the titles provided in the FBI documents cross-referenced with public information and news stories which showed who held the applicable titles at the relevant times. [Sources for Redacted Information].
- Prior to the Patriot Act changes to the NSL statute, the NSL would have had to be approved by an executive at FBI headquarters no lower than a Deputy Assistant Director. In this case, the chain of command included FBI Director Mueller, Executive Assistant Director (EAD) for Counterterrorism and Counterintelligence Gary M. Bald, CTD Assistant Director Willie Hulon, and CTD, Operations I Deputy Assistant Director Joseph Billy, Jr.
- The ordinary process for issuing a National Security Letter is as follows:
To obtain approval for national security letters, FBI case agents must prepare: (1) an electronic communication (EC) seeking approval to issue the letter approval ECL and (2) the national security letter itself. The approval EC explains the justification for opening or maintaining the investigation and why the information requested by the NSL is relevant to that investigation.
For field division-initiated NSLs, the Supervisory Special Agent of the case agent's squad, the Chief Division Counsel (CDC), and the Assistant Special Agent in Charge are responsible for reviewing the approval EC and the NSL prior to approval by the Special Agent in Charge. Division Counsel are required to review the NSLs to ensure their legal sufficiency specifically, the relevance of the information requested to an authorized national security investigation.
The final step in the approval process occurs when the Special Agent in Charge or authorized FBI Headquarters official (the certifying official) certifies that the requested records are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities and, with respect to investigations of "U.S. persons," that the investigation is not conducted solely on the basis of activities protected by the First Amendment. After making the required certifications, the official initials the approval EC and signs the national security letter.
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