FBI Hides Its Use of NSLs from Congress

FBI headquarters at night, official photo

FBI headquarters at night, official photo

On August 5, a bunch of Inspectors General wrote Senator Chuck Grassley with concerns about access to documents. For Department of Justice Inspector General Michael Horowitz, the letter was at least the third time he had raised such concerns about DOJ stymying his work. Repeatedly, DOJ officials have approved his access to things like grand jury records only if it serves DOJ’s own interests.

Today, as part of a report on the FBI’s use of National Security Letters, Horowitz revealed yet another way DOJ is trying to suppress his work: by hiding information about the decisions FBI’s lawyers have made.

A footnote describing the classification of the report explains:

The public version of this report contains several redactions that the FBI determined is classified, law enforcement sensitive, or “for official use only.”

In addition, the public version of this report contains several redactions of information that the FBI asserted is protected by the attorney-client privilege, attorney work-product doctrine, or deliberative process privilege. The classified version of this report provided to the Director of National Intelligence, the President’s Intelligence Oversight Board, and Congress also contains redactions based on the FBI’s assertion of the attorney-client privilege and attorney work-product doctrine. We disagree with those FBI assertions of attorney-client privilege, attorney work-product doctrine, and deliberative process privilege that have the effect of redacting types of information that were not redacted in the public and Congressional versions of our previous reports, such as guidance from FBI Headquarters to FBI field offices about whether certain information received by the FBI in response to an NSL may be kept and used by the FBI or whether the information is unauthorized and must be handled accordingly, and the reasons underlying the FBI’s decision to not report certain matters to the Intelligence Oversight Board, a component of the President’s Intelligence Advisory Board within the Executive Office of the President (PIAB).

Finally, during the sensitivity review of the report, the FBI provided a draft of the report to the PIAB, which asserted that certain information regarding guidance the Intelligence Oversight Board provided to the FBI on reporting intelligence oversight matters is “for official use only.” We disagree with those markings, which have the effect of redacting information that we believe is important to the public’s understanding of FBI’s compliance with NSL requirements. These markings have the further effect of redacting information in the public version of the report that is the same as or substantively similar to information that was included in the public versions of our previous reports. [my emphasis]

That is, both in the unclassified and the classified reports, FBI and President’ Obama’s oversight board demanded Horowitz hide information that had been released in some form in the 3 earlier reports DOJ’s IG did on NSLs.

FBI or PIAB are hiding:

  • What kind of information FBI collects using NSLs
  • What kind of violations FBI reports (or doesn’t report) to its overseers
  • PIAB’s judgements about FBI’s compliance with NSL statute

This information is, of course, central to Congress and the public’s understanding of whether FBI continues to abuse the NSL statute, as it did for the first 5 years after 9/11 (this report only covers NSL use until 2009; FBI’s more current use remains unexamined).

FBI’s suppression of this information is all the more troublesome given that the USA Freedom Act currently being debated in the Senate addresses some of the FBI’s use of NSLs.

Particularly given the fact that, according to day’s report, FBI has not complied with 10 of DOJ IG’s earlier recommendations on NSLs and that Horowitz raised (largely redacted) concerns about the kind of information FBI obtains using NSLs, we should assume FBI continues to interpret the NSL provisions more broadly than the letter of the law might allow.

But FBI wants to hide that from both you and Congress with classification claims that go beyond what FBI has done for past reports.

About Marcy Wheeler

Investigative journalist Marcy Wheeler writes the "Right to Know" column for ExposeFacts. She is best known for providing in-depth analysis of legal documents related to "war on terrorism" programs and civil liberties. Wheeler blogs at emptywheel.net and publishes at outlets including the Guardian, Salon and the Progressive. She is the author of Anatomy of Deceit: How the Bush Administration Used the Media to Sell the Iraq War and Out a Spy. Wheeler won the 2009 Hillman Award for blog journalism.