Can the Pentagon and the CIA Issue National Security Letters?:
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.
(this of course stems from this New York Times Article)
Orin Kerr is of course far more of an expert than I am in this area, and the whole post and the comment thread are fascinating. I will say that if Kerr is correct, and the DoD and CIA know that they can’t issue mandatory letters but are purposefully trying to make their letters ‘look’ like the mandatory ones that is troubling, and that should change. Any time the government ‘asks’ for something, they should make it absolutely clear whether what they are asking for is voluntary or mandatory. The extreme and unique powers that the government have make this something we should demand. This is one reason that the Miranda rights are such a good idea.
This of course does lead though to the larger question of what, and how, we should deal with terror threat detection as oppossed to investigations of crimes that have already been committed. The FBI has a lot of institutional expertise in the latter, but not so much in the former. Both the CIA and Dod are experts (or at least as close as it gets) in trying to predict what groups are planning to do, but of course don’t necessarily focus (historically anyway) on small stateless groups that target civilians. And of course using either of those forces domestically, and a certain amount of terror theat detection is going to have to focus in the domestic arena, has manifold issues.
I don’t know the answers to those questions necessarily. I do though think that those who automatically discount those very real challenges are somewhat unserious when it comes to what powers our Government, and the various agencies within them, should have.
A brief editorial on NZ’s last major spy case.
I have been on the edge of two SIS investigations. Not as the subject, but as a person “potentially holding relevant information”. The two Official Secrets Act pledges I signed are still operative.
Generally the laws relating to privacy and security of private information in NZ are slanted in the individual’s favour. Most recent instance was the Commissioner of Inland Revenue (THE tax man) saying that his department is not a police force. Hence taxpayers who declare earnings from illegal activities will not be passed on to the police for prosecution.
It is the hidden things - like Waihopai and the GCSB - that are the greater “danger”.