Over at Concurring Opinions, Daniel Solove is asking a very good question about New York Times’ disclosure that the Defense Department and the CIA have been issuing National Security Letters: What provision of federal law empowers those agencies to issue National Security Letters? Several parts of the U.S. Code permit the FBI to issue National Security Letters, which are something like subpoenas; they are basically letters on FBI stationary authorized by FBI bigwigs ordering third-party record holders like banks to hand over information to the government.
The new story breaks the news that the Defense Department and CIA apparently believe they have a similar authority, and that they have been issuing their own NSLs in their own domestic investigations. Vice President Cheney has confirmed the practice. The statutory provision that the DoD/CIA are replying on seems to be an exception to the Right to Finanical Privacy Act, a law that otherewise requires legal process to obtain bank records. 12 U.S.C. 3414(a)(1) carves out an exception to this rule:
Nothing in this chapter (except sections 3415, 3417, 3418, and 3421 of this title) shall apply to the production and disclosure of financial records pursuant to requests from—
(A) a Government authority authorized to conduct foreign counter- or foreign positive-intelligence activities for purposes of conducting such activities;
(B) the Secret Service for the purpose of conducting its protective functions (18 U.S.C. 3056; 3 U.S.C. 202, Public Law 90–331, as amended); or
(C) a Government authority authorized to conduct investigations of, or intelligence or counterintelligence analyses related to, international terrorism for the purpose of conducting such investigations or analyses.
(C) above was added by Section 358 the Patriot Act; the rest of the language seems to go back to the original statute passed in the 70s.
My best guess as to what is happening is something like Bruce Boyden’s. First, I think the DoD and CIA reasonably read that language as letting them make voluntary requests for financial information otherwise requiring a NSL. The Times story suggests a twist, though; instead of just informally requesting information in a context that would make clear the request is voluntary, the DoD and CIA seem to be issuing their requests using letters that look a lot like “real” National Security Letters. If that’s right, the government would know that the letters have no legal effect, but they would be written so as to try to trick the recipients into thinking that they do.
In particular, note that the Times story refers to the DoD/CIA letters as “noncompulsory versions” of NSLs, and reports that “Congress has rejected several attempts by the two agencies since 2001 for authority to issue mandatory letters” like those that the FBI issues. It also states that “[l]awyers at financial institutions, which routinely provide records to the F.B.I. in law enforcement investigations, have contacted bureau officials to say they were confused by the scope of the military’s requests and whether they were obligated to turn the records over.” If I’m not mistaken, the answer to the lawyers’ question is that they are not obligated to turn over the records. The statute seems to permit it, but I don’t know of any provision that compels it.
UPDATE: I have rewritten the post since initially posting it.