FBI Asks Rights Groups for Input on Subpoena Rules

Robert Mueller

hide captionAt a March news conference, FBI Director Robert Mueller addressed a report by the Justice Department's inspector general that found the agency has widely misused National Security Letters. Now, Mueller says he is personally getting involved in the process of requesting input from civil liberties group about new guidelines for NSLs.

Chip Somodevilla/Getty Images

Last week, the FBI did something unusual: It invited civil liberties groups to FBI headquarters to work on a draft of new guidelines for the use of National Security Letters. The letters are special subpoenas the FBI can issue, without a court order, that permit agents to search telephone, e-mail and financial records. Nobody expected to leave the room satisfied and happy, but just the fact that the two sides sat down together marked a big change.

This week, FBI Director Robert Mueller is going a step further. In an interview with NPR, Mueller said that last week's meetings went so well, he wants to get personally involved. He plans to invite privacy groups such as the American Civil Liberties Union and the Center for National Security Studies in the coming weeks to sit down with him and try to reach some common ground on use guidelines and other aspects of the subpoenas that have been troubling.

"We're not always going to agree," Mueller told NPR after a speech at Harvard University in Boston. "But these meetings are useful as we try to set the balance between security and protecting our civil liberties."

Mueller's overture as civil liberties community has been saying "we-told-you-so" with regard to National Security Letters. Last month, the Justice Department's inspector general released a report citing widespread misuse of NSLs. The finding confirmed the worst fears of civil liberties groups, which had voiced concern about NSLs because the subpoenas give the FBI carte blanche to issue a subpoena without a court's oversight. Some critics see the letters as an end-run around the normal subpoena process and contend that it infringes on the privacy rights of innocent Americans.

In response to the report, the FBI's general counsel, Valerie Caproni, called the bureau's critics and asked them for a meeting. She began the session by handing out a 15-page, double-spaced document she said was a road map for addressing the abuses cited in the inspector general's report.

It was also an attempt to show the agency's critics that the FBI wanted to prevent any further transgressions. The group got a half-hour to read the draft language and then spent the next 90 minutes going over concerns about the new rules.

That was a huge shift from the agency's usual practice, said Lisa Graves, the deputy director of the Center for National Security Studies.

"Prior to this, we had not really had a dialogue," Graves said. "It was a one-way conversation from the administration, saying, 'Don't worry, trust us.'"

The new guidelines have yet to be published. The FBI's Caproni says the bureau accepted nearly all of the suggestions laid out that afternoon. She said the changes include more precise definitions and clarifications that limit the kind of information the FBI can get from private companies.

Consider financial institutions. Under the FBI definition, a financial institution is anything that transfers money. That means the FBI could ask casinos or even insurance companies for information under the NSL guidelines. Privacy advocates complained that under the current definition, the FBI could get medical records from an insurance company. In response to the privacy groups' suggestion, the FBI intends to close that loophole.

Why is the FBI making nice? Mike German, policy director at the ACLU, said the bureau is concerned that it is going to lose its NSL powers. He says that's why FBI officials reached out to the civil liberties community, and they're stepping up the initial overture by making the director himself part of the process.

German said he is skeptical.

"It's not as if there weren't rules of the road before," he said. "The law was very clear about how it could be used and when it could be used. And they just simply didn't follow the law. So there's nothing to show that they will follow new guidelines any more than they follow the old guidelines."

Mueller seems willing to reach out and prove to the groups that the FBI's overture is genuine. He told NPR that in the coming weeks, he will invite the groups to discuss other concerns — such as how long the FBI keeps data it gathers in investigations that do not lead to charges.

"What is always good is to have suggestions of how we can do it better, as opposed to the rejection of doing it at all," Mueller said of NSLs. "These meetings help with that."

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