Stealth Surprises in NSA Report Take on Non-NSA Spying

What are 'National Security Letters'? What was that about hacking bank accounts?

December 20, 2013, 12:36 PM
PHOTO: President Barack Obama speaks during a news conference in the East Room at the White House in Washington, Aug. 9, 2013.
President Barack Obama speaks during a news conference in the East Room at the White House in Washington, Aug. 9, 2013.
Charles Dharapak/AP Photo

Dec. 20, 2013 — -- The White House's expert NSA panel may have made headlines Wednesday for telling President Barack Obama to knock off the collection of Americans' meta-data, but surveillance experts said they were surprised that the panel also took to task some controversial non-NSA-related spy tactics as well.

One recommendation was to impose much stricter oversight on the FBI's ability to issue National Security Letters (NSLs), which have been used to obtain telephone call records and credit reports in terrorism and espionage cases only without the need for a judge's pre-approval.

It's an issue that hasn't been seriously debated in many years because the FBI put in place more internal scrutiny on how NSLs are issued after cases of misuse were reported in 2007 by a government watchdog.

NSLs were "initially used sparingly" for the first two decades after a 1978 law enabled it, but last year the FBI issued an eye-popping 21,000 National Security Letters, the White House's independent experts disclosed in their report. They urged the system be overhauled to require a judge or magistrate -- a position which does not currently exist -- from the small Foreign Intelligence Surveillance Court approve each NSL.

"We are not suggesting that the change must be undertaken immediately and without careful consideration. But it should take place as soon as reasonably possible," the Review Group stated.

Another even more peculiar recommendation by the five national security experts, who were tapped by Obama to principally review the NSA's surveillance disclosed by ex-agency techie Edward Snowden, was their advice that "governments" shouldn't hack into bank accounts and drain funds.

"Governments should not use their offensive cyber capabilities to change the amounts held in financial accounts or otherwise manipulate the financial systems," the unanimous Review Group on Intelligence and Communications Technologies report warned Obama.

No leaked documents swiped by Snowden, a former system administrator for NSA contractors Dell and Booz Allen Hamilton, that have been published so far related to this type of activity.

"That was a strangely specific recommendation for something nobody was talking about," Kel McClanahan, executive director of government transparency group National Security Counselors, told ABC News Wednesday.

A spokesperson for the NSA declined to comment on the issue of bank account hacking, and a representative for U.S. Cyber Command did not immediately return an emailed request for comment.

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NSLs Are the 'Iraq War of the Surveillance Debate'

The National Security Letters debate peaked after the Justice Department's former inspector general Glenn Fine issued a scathing 2007 report documenting some abuses, which the FBI at the time said it had quickly corrected.

"NSLs are the Iraq War of the surveillance debate. Nobody cares about it anymore," McClanahan said.

Michelle Richardson, the American Civil Liberties Union's legislative council in Washington, also said the findings on "NSLs" and government hacking were unexpected -- but welcomed.

RELATED: White House NSA Panel Member: Edward Snowden's Leaks Still 'Treasonous'

NSLs have been used by the FBI for more than three decades and originally required a deputy assistant director to approve of each one. But right after the 9/11 attacks, Congress -- nearly unanimously -- passed the USA Patriot Act, which included a provision that gave special agents in charge of each of the bureau's 56 field offices the authority to issue them without a judge's approval.

"We absolutely oppose how they've been used in the last 12 years," the ACLU's Richardson said. After she personally studied their extensive use in court filings and law enforcement documents, she concluded that "we don't have terrorism cases to show as a result of these NSLs."

A former FBI official, however, told ABC News that was a "backwards way of looking at it."

"There may be investigations that don't go forward as a result of an NSL," the official said.

Because FBI national security activity is by definition classified Secret or above, most Americans have no sense of the great volume of tips and leads on terrorism and foreign intelligence the bureau receives, which, no matter how sketchy or dubious -- as most of them are -- each must be checked out with initial inquiries.

Using an NSL to quickly obtain information that validates a matter is not worth pursuing further is a valuable method of filtering leads without wasting judges' time and taxpayer dollars, the former senior FBI official argued.

"It's a very limited tool," said the former official. "But they're very useful."

The White House panel's NSL recommendation goes beyond even what a bipartisan bill sponsored by Senate Judiciary Committee Chairman Patrick Leahy, D-Vermont, has proposed with Rep. James Sensenbrenner, R-Wisc. which would require judicial review only of an order to NSL recipients not to disclose them to targets, which occurs in 97 percent of the cases, but not the NSL itself.

But FBI officials bristle at the notion of losing a basic counter-terrorism and foreign counter-intelligence tool that would likely jam a court docket, such as the yearlong backlog that they had to contend with prior to the Patriot Act.

FBI spokesman Paul Bresson reiterated past bureau statements on NSLs, an issue that hasn't been controversial since reforms were made six years ago.

"Tools such as the NSL remain an indispensable investigative technique and contribute significantly to the FBI’s ability to carry out its national security responsibilities," Bresson said. "The FBI remains committed to using NSLs in ways that maximize their national security value while providing the highest level of privacy and protection of the civil liberties of those they are sworn to protect."

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