The Secrets that Remain about Journalist NSLs

Someone has liberated to the Intercept a copy of the FBI’s guidelines for using NSLs to obtain the call records of journalists. The entire appendix is For Official Use Only save one paragraph noting that foreigners serving as spooks or working for news outlets that are agents of a foreign power don’t get any protection. Otherwise, this is only being protected under a claim of privilege, not classification. That’s particularly troubling given that the US Attorney Guidelines on subpoenaing the press includes equivalent language about agents of a foreign power not getting the special treatment (though here it is more focused on terrorists).

The protections of the policy do not extend to any individual or entity where there are reasonable grounds to believe that the individual or entity is a foreign power or an agent of a foreign power; a member or an affiliate of a foreign terrorist organization; designated a specially designated global terrorist; a specially designated terrorist; a terrorist organization; committing or attempting to commit a crime of terrorism; committing or attempting to commit the crime of providing material support or resources to a terrorist organization; or aiding, abetting, or conspiring in illegal activity with such individuals or entities. 28 C.F.R.50.10(b)(1)(ii).

The liberated passage (like the USA guidelines) does not, however, define who counts as a member of the news media.

For those so lucky as to be considered a member of the news media, when DOJ is obtaining their records to learn a confidential source, they need to get the Executive Assistant Director of National Security Branch (who must consult with the AAG for National Security) and General Counsel’s approval to obtain an NSL. Note, the Public Affairs Director is not involved in this process, as he or she is supposed to be in the subpoena process (though even there, the policy states that DOJ’s Policy and Statutory Enforcement Unit will make the call on who is or is not entitled to be a journalist). Which would say NSLs, on top of being secret and offering the journalist no opportunity to fight the subpoena, also receive only a national security review, not a press review.

Which brings me back to the other point about NSLs I keep harping on. The 2014 NSL IG report showed that the FBI was not reporting at least 6.8% of their NSLs, even to Congress, much less to the Inspector General. When asked about that, FBI said an accurate number was really not worth trying to do, even while it admitted that the uncounted NSLs were “sensitive” cases — a category that includes journalists (and politicians and faith leaders).

That means there’s at least a decent possibility that some of the NSLs the FBI chooses not to report to either Congress or the Inspector General — in spite of the clear legal obligation to do so — are of journalists.

Given that they’ve been hiding this unclassified NSL policy under a dubious claim of privilege, that decent possibility seems all the more likely.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

4 replies
  1. martin says:

    When I was a kid, I watched a lot of WWll movies, as I was born during the war. I often wondered what it was like living under a regime that had the SS, the Gestapo, etc. And then I saw Nuremberg. Of course, a lot of these movies, had the infamous Hollywood propaganda hero..the “G man”. Over time, I became aware of who they really were…the FBI. For years, my impressionable mind was fed daily TV show and movie bullshit, about the FBI. And then came Vietnam. Slowly, the propaganda curtain was being pulled down, showing tidbits of what the FBI was really doing. And then came to bombshell of Hoover, and his files, and his nature.. and his secret desires and hatred. Over the last 40 years, I’ve watched this country turn into what I thought as a kid, was impossible to happen here. When I finally got the Internet, I discovered a world of people who were on a quest to unravel, discover, disseminate, and fight, the IRS. I spent 10 yrs finding the information that had so long escaped my curiosity. And then..9/11 happened. The US started turning itself inside out. Iraq. Afghanistan.. the WOT and everything that came along with this insidious mindfuck. And then, slowly, the discovery that Bush had set in motion, the illegal surveillance program. Daily, the whole world I knew as a kid was burning to ashes, along with my memories of Pledging Allegiance to a nation that was now becoming what I always hated as a kid. Nationalistic propaganda. And throughout this whole journey, there was always..the FBI. Only now, I knew what they really are. And what they really do.

    And then..Edward Snowden came along. The whole point of his disclosures, were this. The US is living a bald…. faced… lie.

  2. martin says:

    As an aside, a few yeas ago, I was following an appeal court proceedings of a case where the ACLU had challenged the USG over the constitutionality of NSL’s. It finally got to the point where I was looking for daily updates on the Court’s progress on their webpage. At some point, it had dragged out for so long, I simply forgot it was happening. All I know, some Judge had ruled NSL’s were unconstitutional, but of course, allowed the government time to file an appeal. The last time I visited, the two parties were sparring over classified information, which I believe was exactly what this document is.
    However, I’m more interested to find out the status of that case, and if anything ever came of it. My computer crashed last year and I lost all of my bookmarks etc. Anyone know anything about that case? If I’m not mistaken, I believe even emptywheel reported numerous times about it. Which is one of the reasons I started visiting this site. Anyway, I haven’t heard a word about it. It wouldn’t surprise me if it simply got permanently stalled by the P’s TB.

  3. Denis says:

    What’s NSL?
    .
    OK, I’ve been hanging out here long enough to know what it is, but I’ll bet some folks who are not immersed in this area are scratchin’ their heads.
    .
    Reminds me of a time I gave a seminar lecture to a medical school faculty, including a lot of clinicians. It was grandly titled: Pyro-glutamate inhibition of glutamate receptors in the teleost retina.
    .
    Durn good talk, too, at least that’s what I thought until I took the first question and the guy asked “What’s a teleost?” (It was a fancy word for “goldfish” in my case.)
    .
    After that I was a lot more careful about being sure tech-words and anagrams were defined up front, even the ones “everybody knows.”

  4. SpaceLifeForm says:

    So, is anyone and everyone that publishes anything
    on the internet a journalist? Are National Security Letters being used to ‘collect it all’?

Comments are closed.