The Justice Department cannot secure our nation against
terrorist attack unless investigators are equipped with tools that allow
them to disrupt plots before they can be carried out. These same tools must
protect civil liberties. National Security Letters (NSLs) satisfy both requirements.
In national security investigations, the FBI must follow up on every
tip and every threat. The American people demand as much. NSLs, which predate
the USA Patriot Act, enable the FBI to do so quickly and unobtrusively.
An NSL is simply a request for information. It does not authorize the
FBI to conduct a search or make a seizure. If the recipient of an NSL declines
to produce the requested information, the FBI cannot compel him to do so;
only a federal court has that authority.
NSLs are subject to two other important limitations. First, the FBI may
issue them only to obtain information relevant to an international terrorism
or espionage investigation. They are not available in criminal investigations
or domestic terrorism investigations.
Second, they 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. In fact, the Justice Department supports amending the
NSL statutes to make this right to challenge express where currently it
is implied.
The NSL statutes do prohibit an NSL recipient from disclosing the fact
that he received it. In international terrorism and espionage investigations,
there are obvious reasons for this. If a terrorist were tipped off to the
fact that the FBI was asking for his billing records, he might flee, destroy
evidence, or even accelerate plans for an attack.
The Department of Justice is committed to protecting the USA against
terrorist attack while using its authorities carefully, lawfully and consistent
with civil liberties. The NSL authorities facilitate this mission.
From an op-ed by Rachel Brand, assistant attorney general for the
Office of Legal Policy at the Department of Justice, and John Pistole,
deputy director of the FBI.
