FBI Abuse of “National Security Letters” — New Revelations

When biochemist Magdy Mahmoud Mustafa el-Nashar was released from custody in Cairo in 2005, no one could have be more relieved than the vacationing former student and his family.

Falsely accused by British authorities for alleged links to the July 7, 2005 London transport bombings that killed 52 and maimed 700, el-Nashar was taken into custody in Egypt because he had casually known two of the suicide bombers. He had met them while obtaining a Ph.D. in biochemistry at the University of Leeds. When freed, el-Nashar told the International Herald Tribune,

The reason for suspecting me was because I specialize in chemistry. I am completely innocent,” he said, adding that he planned legal action against British media that he said had defamed him. He did not identify the media.Egyptians Free Biochemist Who Knew 2 of the London Bombers,” International Herald Tribune, August 10, 2005.

Released unharmed by Egypt’s notoriously torture-prone Interior Ministry police, el-Nashar lived to tell the tale. But unbeknownst to the former North Carolina State University student there was a disturbing backstory to his arrest.

The Electronic Frontier Foundation (EFF) released a damning report Tuesday documenting the FBI’s abuse of the process for obtaining a National Security Letter (NSL) in connection with its probe of el-Nashar.

Incredibly, the Bureau delayed its own investigation in North Carolina “by forcing a field agent to return documents acquired from a U.S. university,” Ryan Singel reports.

Why? Because the agent received the documents through a lawful subpoena, while headquarters wanted him to demand the records under the USA Patriot Act, using a power the FBI did not have, but desperately wanted.

When a North Carolina State University lawyer correctly rejected the second records demand, the FBI obtained another subpoena. Two weeks later, the delay was cited by FBI director Robert Mueller in congressional testimony as proof that the USA Patriot Act needed to be expanded.Ryan Singel, “FBI Caused Delay in Terror Case Ahead of Senate Testimony,” Wired News, April 15, 2008.

That’s right.

The investigation into a suspected accomplice to mass murder was sidetracked because FBI bureaucrats sought additional powers they “desperately wanted,” in order to escape judicial oversight and expand their brief to shower the public with flimsy National Security Letters. During 2004-2005 for example, the Bureau issued some 100,000 NSLs, often on no more than a hunch.

Under provisions of the oppressive USA Patriot Act, Bureau gumshoes can issue NSLs without probable cause to obtain phone records, e-mails, credit reports and bank statements so long as the request is relevant to a “terrorism” or “espionage” investigation. Unlike grand jury subpoenas however, NSLs have no expiration date and recipients of these baneful warrants are bound by draconian gag orders forever forbidding disclosure of their content. Violations can result in stiff fines and even a stint in federal prison.

According to an EFF Press Release,

In the report, EFF used documents obtained through a Freedom of Information Act (FOIA) request coupled with public information to detail the bizarre turns in the FBI’s investigation of a former North Carolina State University student. Over the span of three days in July of 2005, FBI documents show that the bureau first obtained the educational records of the suspect with a grand jury subpoena. However, at the direction of FBI headquarters, agents returned the records and then requested them again through an improper NSL.EFF Report: FBI Slowed Terror Investigation with Improper NSL Request,” Electronic Frontier Foundation, April 15, 2008.

EFF’s Senior Staff Attorney Kurt Opsahl denounced this egregious flim-flam by FBI Director Robert F. Mueller when he testified before Congress in 2005:

The FBI consistently asks for more power and less outside supervision. Yet here the NSL power was misused at the direction of FBI headquarters, and only after review by FBI lawyers. Oversight and legislative reforms are necessary to ensure that these powerful tools are not abused.

However, in testimony before the House Judiciary Committee Tuesday, FBI General Counsel Valerie Caproni claimed that the FBI’s misuse of the NSL in the el-Nashar case may have been the result of “miscommunication.”

According to EFF, citing a 2007 report by Caproni’s Office of the General Counsel,

the FBI’s Charlotte Division, “acted upon the advice and direction of FBIHQ [and] Charlotte personnel sought legal advice prior to the service of the NSL.” FBI documents show that the NSL at issue was reviewed by the Senior Supervisory Special Agent for the Raleigh office, and then reviewed by the Special Agent in Charge of the Atlanta Division before being signed.Kurt Opsahl, “EFF General Counsel Questioned on EFF NSL Report,” Electronic Frontier Foundation, April 15, 2008.

Attentive readers may recall that Caproni had earlier rejected a ruling by the secretive FISA court that had rebuffed Bureau requests to obtain sensitive records because “the ‘facts’ were too thin” and the “request implicated the target’s First Amendment rights.” The FBI used an NSL as a “work around” and proceeded anyway. Why? Because the Bureau’s General Counsel believed “it was appropriate to issue the letters in such cases because she disagreed with the court’s conclusions.” [emphasis added]

Meanwhile, the ACLU and the New York Civil Liberties Union filed a federal lawsuit Tuesday “to uncover the extent of the FBI’s misuse of National Security Letter powers.” According to the ACLU:

Specifically, the lawsuit seeks the release of records pertaining to the FBI’s use of NSLs at the behest of other agencies including the Department of Defense (DoD) as well as documents concerning the FBI’s use of its gag power. Newly un-redacted documents released to the ACLU last month in a separate Freedom of Information Act (FOIA) lawsuit revealed that the Defense Department is using the FBI to circumvent legal limits on its own NSL power and may be obtaining sensitive records of people within the U.S. to which the military is not otherwise entitled, simply by asking the FBI to issue the record demands. 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.ACLU Challenges National Security Letters in Congress and Court,” Press Release, American Civil Liberties Union, April 15, 2008.

To make matters worse in the el-Nashar case, the Bureau tried to cover up the incident by failing to report it for nearly two years to the Intelligence Oversight Board (IOB). That is, until shortly before Department of Justice Inspector General Glenn Fine’s report on FBI NSL abuse was due before Congress. Statutory requirements demand that potential violations be reported to the IOB within 14 days.

Not that we can expect any earth-shattering “oversight” from a de-fanged IOB. As I wrote last month, the Bush administration quietly stripped the “independent” IOB of much of its authority to root out illegal spying activities by the intelligence “community.”

As I noted then, a little noticed February 29 executive order signed by Bush gutted the board’s mandate to refer illegal activities by the national security state to the Justice Department. “Self-policing” at its finest in the Bushist panopticon!

What little “oversight” remains are in the hands of a compliant Congress, more attuned to the needs of their real “constituents,” the horde of well-heeled corporate lobbyists and their paymasters who rule over an ever-expanding private “security” empire.

Tom Burghardt is a researcher and activist based in the San Francisco Bay Area. His articles are published in many venues. He is the editor of Police State America: U.S. Military "Civil Disturbance" Planning, distributed by AK Press. Read other articles by Tom, or visit Tom's website.

12 comments on this article so far ...

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  1. evie said on April 19th, 2008 at 10:24pm #

    The government and its agencies have long had broad powers – it’s just higher tech and quicker now.

    According to cryptome report on FBI/NSI the FBI was in the process of seeking a grand jury subpoena but presented the university with an NSL, which was declined, and then they were served with the subpoena which they honored and turned over the records. The NSL was not honored because some of the information the FBI requested was not authorized under the ECPA (Electronic Communications Privacy Act 1986) national security letter.

    And indeed, the FBI problems seem to be bureau incompetence, mismanagement, miscommunication, stupidity, employees not knowing their job, sloppy documentation/record keeping, improper authorization, federal paper pushers who want full-time pay for half-ass tasking, etc.

    Also, vacationing el-Nashar was held for 3 weeks in Egypt because he was acquainted with 2 of the London bombers and had given his apartment key to one of them – not something I would do for a casual acquaintance, but others might be more generous and I. There were initial reports explosive residue was found in his London flat. Wouldn’t want to give the impression he was held for months or years.

    Every president appoints his buddies to the IOB. As for de-fanging the IOB, you might want to research some of Willie Clinton’s executive orders regarding the IOB – it was to report directly to WJC.

    There was something back in 1995, something about Strobe Talbott, Anthony Lake, and Iran arms shipments labeled as humanitarian aid to Croatia/Bosnia, which the Clinton appointed IOB, after “investigating,” declared was a-okay, but of course laws were broken.

  2. Tom Burghardt said on April 20th, 2008 at 11:28am #


    I wasn’t implying the the IOB was an independent body as my use of quotation marks around the word “independent” should have made clear. My point was, whatever “independence” existed was erased by Bush’s February 29 executive order.

    Regarding el-Nashar’s casual relationship with the 7/7 bombers, no he wasn’t held for months or years in Egypt, and yes, he did allow one of the killers to stay in his apartment. My point was not so much a focus on el-Nashar, but rather the backstory, or in the case of the piece, the FBI’s use of an NSL that could have potentially sidetracked an investigation into a serious terrorist atrocity.

  3. evie said on April 20th, 2008 at 8:27pm #

    The NSL was served first – worth a try I guess while they waited for the subpoena. Egypt released el-Nashar b/c information obtained was not enough to hold him. Even had they not attempted to use the NSL in this case the outcome would have been the same, and apparently all accomplished within 3 weeks’ time.

    The FBI has always been incompetent at doing anything other than eavesdropping on high profile figures at the request of other high profile figures.

  4. hp said on April 20th, 2008 at 8:57pm #

    They’re also pretty good at strong arming and intimidating ordinary citizens.

  5. mohsin gondale said on April 21st, 2008 at 5:02am #

    see and lookinto this matter

  6. Tom Burghardt said on April 21st, 2008 at 10:27am #

    evie wrote…

    “The NSL was served first – worth a try I guess while they waited for the subpoena. ”

    No, evie, the point of the piece was exactly the opposite. FBI gumshoes already had the subpoena as the result of a federal grand jury. The agents on the ground were ordered by Washington FBIHQ to return documents they already had (!) (el-Nashar’s student records) and instead use an illegal NSL to obtain the same records. NCSU correctly refused the request, since NSLs don’t cover such records.

    Mueller then (falsely) testified before Congress that the FBI needed additional powers under the Patriot Act and specifically cited el-Nashar’s case. Ineptness is one thing: does Coleen Rowley ring a bell? Not to mention revelations of corrupt FBI practices brought to light in Peter Lance’s 9/11 trilogy, e.g. the strange case of triple agent Ali Mohammed – an al-Qaeda mole, CIA “asset” and FBI informant.

    BTW, my point is not to advocate in favor of expanded powers for a national political police force like the FBI, COINTELPRO anyone? Rather, it is to expose their decades-long history of criminality, often at the expense of the grunts who actually try to do legitimate counterterrorism investigations. Yes, the CIA/ISI’s frankenstein creation, al-Qaeda, actually would launch mass-casualty attacks again, given the chance. After tens of billions wasted on so-called “homeland security,” the best the Bureau can offer is “round up the usual suspects,” as the fiasco “trial” of the Miami 7 amply demonstrates. Pathetic.

    Same is true with DEA and its so-called “war on drugs”: do Mike Levine or Cele Castillo ring a bell? On and on…

  7. hp said on April 21st, 2008 at 12:49pm #

    How appropriate that El-Qaeda translates to ‘the toilet.’

  8. evie said on April 21st, 2008 at 12:52pm #

    Tom, do you have the date and title of that congressional hearing with Mueller? I’ve looked through senate.judiciary.gov listings for the testimony but too many to wade through. Thanks.

  9. Tom Burghardt said on April 21st, 2008 at 7:51pm #


    Here’s the link from Electronic Frontier Foundation: http://www.eff.org/files/July%2027Transcript.pdf

    The hearing was July 27, 2005.

  10. evie said on April 21st, 2008 at 8:40pm #

    Thanks Tom
    Will read that tomorrow. I must nap now before going to bed.

  11. evie said on April 21st, 2008 at 9:09pm #

    Only one page so I read EFF document.

    Mueller states that the NSL was declined and the FBI went back with the subpoena. Sounds like Mueller wanted the SAC to have administrative subpoena power to instantly get the records with a letter. There’s no mention of the FBI receiving the information and then having to return it.

    Mueller has testified that the number of NSLs issued are not as many as being floated around, and that number comes from typos, incorrect data entry – in other words the usual incompetence.

    You may be preaching to the choir though as most folks know government acronyms are criminal. Even Earl at the diner has a bumper sticker on his Dodge truck that says “I love my country – it’s the government that scares me.”

  12. INdika said on December 13th, 2008 at 8:51pm #

    Thank you for the invitation. i love my world.i can help it