The USA Patriot Act contains a provision allowing government employees to draft “national security letters” and use them like search warrants. Federal agents are able to sign the National Security Letters (NSLs) themselves and then hand them to any third-party custodian of records, who must immediately turn over the records to the agents. Anyone “served” with an NSL is also given a gag order and told he or she faces up to five years in federal prison if he or she discloses the existence of the NSL to another person. Under the Patriot Act, an NSL does not require the approval or the signature of any judge. Nor does an NSL require the official who writes it to state any grounds for probable cause to believe a crime has been or will be committed. An agent needs only to write that the information he or she seeks is “relevant” to an investigation. An imaginative agent could probably think up a reason to demand almost any information from any anyone at any time.
The National Security Letter provision is a clear attempt to evade the plain language of the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Thus far, three federal district judges (two in New York, one in Oregon) have declared the National-Security-Letter provision of the Patriot Act to be unconstitutional. However, the National-Security-Letter provisions still stand in all other jurisdictions (including Montana), and the feds are actively using the “Letters.” Some 34,000 law enforcement and intelligence agents now have unfettered, virtually limitless access to our phone and email records through NSLs.
The idea of national security letters certainly has nothing to do with any recalcitrance by judges to grant search warrants. Search warrant approvals have become a pointless ritual in some jurisdictions and it is hard to find a judge anywhere in the country who makes it a regular practice to turn down search warrant applications. In fact, the “search warrant success rate”—the rate of search warrants that lead to charges of any kind—has been declining for years as our nation has swarmed with police officers. Today, there are so many search warrants being executed in our country that fewer than half of search warrants in some jurisdictions result in any prosecutions.
When the Patriot Act was still young, its promoters claimed that the Act was needed to investigate and thwart terrorists. As the years have progressed, these claims have become more difficult to sell. Between 2003 and 2005, the FBI referred 43 criminal matters to prosecutors which had been developed through NSLs. According to the American Civil Liberties Union (ACLU), 19 were fraud cases, 17 were immigration-related and 17 were for money laundering. Only one case of “material support” of terrorism has been referred for prosecution out of at least 143,074 individuals who have been scrutinized through NSLs. “In other words,” writes Michael German of the ACLU, “NSLs, sold as anti-terrorism tools, are not producing convictions against suspected terrorists.” Instead they have allowed the federal government almost limitless access to our telephone, computer, credit and banking information.
Because NSLs do not need to be approved or monitored by any judge, abuses within the U.S. Justice Department have been rampant. In the only audit ever conducted of the use of NSLs, a random sample of 293 case files revealed that there were 17 percent more NSLs in the files than recorded in the Justice Department’s NSL database reported to Congress, meaning that the FBI has been misleading Congress and other overseers. More than half (60 percent) of the sampled FBI NSL files were deficient in required paperwork. Over all, a general circumvention of the NSL statutes (although those statutes impose few standards) has apparently been the rule rather than the exception.
—Roger Roots