FBI Shares New Guidelines on Subpoena Power

It is fair to say that people in the civil liberties community have always disliked National Security Letters, or NSLs, which give the FBI permission to get phone, e-mail and financial records without a court order.

So no one expected the privacy advocates to emerge from a two-hour meeting with FBI Director Robert Mueller changing their tune or stepping back from their efforts to get Congress to throttle back on the FBI's special subpoena powers. What the meeting yesterday at FBI headquarters did do, however, is provide an opportunity for the director to come face-to-face with – and engage – his critics and talk to them about a new set of guidelines meant to govern the special subpoenas.

"The fundamental issue is the FBI has been given a power it can't control. It is not policing itself and it can't be expected to police itself," said the American Civil Liberties Union's Caroline Fredrickson. She attended the meeting and left feeling that it was a good-faith effort to begin a dialogue, but it did little to change the ACLU's resolve to roll back the NSLs.

The ACLU has stood foursquare against NSLs since they were codified in the Patriot Act after the Sept. 11, 2001, attacks. They said they were too intrusive and the FBI would be given free license to go on informational fishing expeditions without a court overseeing their activities.

Privacy advocates' worst fears about the special subpoenas were realized when the Justice Department's Inspector General and even the FBI's own internal audits found widespread misuse of NSLs earlier this year.

Frederickson said the new guidelines tinker at the edges of the problem and address management issues but not concerns about civil liberties.

"When we come down to the most fundamental piece of this, as to what is the problem, we are on a completely different page," she said after the meeting.

As she sees it, Mueller seeks to fix the problem with NSLs by beefing up checks and balances. In the meeting, he promised that agents will be better trained on the use of the letters. A compliance system will ensure that they are used properly. The FBI will set up an anonymous hot line so abuses can be reported. Privacy rights groups were non-plussed.

"They are trying to take a major wound and the abuse of authorities and try to patch it with a Band-Aid," said Fredrickson. "Compliance and training are important things, but we need a tourniquet here. We don't need a Band-Aid."

The FBI, for its part, says no one expected the meeting to end with either side embracing the principles of the other.

"The important thing is that we've got the key people from civil liberties groups in the nation really sitting down with the director and the general counsel to hash these issues through," said FBI Assistant Director John Miller. "You can get very good advice from different quarters, including from people who are perceived to be your worst critics on some days."

The deputy director at the Center for National Security Studies, Lisa Graves, agreed that a longer-term relationship was being built. The fact that the director himself took two hours out of his day to speak to them sent a message, she said.

"The fact that these meetings are occurring even this late in the administration is a very good sign," Graves said. "It is not just symbolic, but a good-faith effort."

Of course, the FBI's good-faith effort is not entirely selfless. Mueller wants to blunt the privacy groups' efforts to strip the FBI of its special subpoena powers and take some of the wind out of their sails as they seek to get the Democratic Congress to trim the agency's powers. By all indications, even after their meeting with the director, it is something privacy advocates are still determined to do.

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