- The Washington Times - Wednesday, February 15, 2006

For years, any FBI or DEA agent who thinks you might be growing a few marijuana plants in your basement could obtain an administrative or grand jury subpoena to easily get telephone, hotel, car rental and all kinds of records.

Yet the agent at the next desk who suspects your basement could be an al Qaeda sleeper cell’s headquarters might need weeks to get the same records with a “controversial” type of subpoena known as a national security letter (NSL). That is the status quo under the Patriot Act.

I conducted drug and organized crime investigations for many years as an FBI agent and for a while shared a small office with an agent assigned to counterterrorism after September 11, 2001. She often shook her head at how easily I obtained records while she jumped through all kinds of hoops to get an NSL and waited weeks or more for the same information.

The Patriot Act will soon be renewed. That is the good news. But Congress, by all accounts, plans to make it substantially more difficult for counterterrorism investigators to get the information they need to do their jobs. The direct result would almost surely be unnecessary deaths of innocent Americans.

After another domestic attack, this will be seen as a blunder dwarfing the pre-September 11 burying of the “Phoenix Memo” on flight schools. Why? Does this represent merely lawmakers’ lazy refusal to learn how FBI agents really play the ground game? Or is the perceived political advantage from demagoguing the Patriot Act too irresistible?

It is simply astounding that even important players persistently display such a lack of understanding. Senate Judiciary Chairman Arlen Specter (inventor of the nifty new legal term “Super-Duper Precedent”) and other key legislators seem not to grasp what we face here.

Much disinformation has been peddled about the investigative tool known as the “national security letter” (NSL), really just a form of “subpoena” for records. (NSLs cannot be used to authorize any searches, all of which require that a judge find probable cause.) For years, federal agents have used a similar tool, known as an administrative subpoena, in drug and other investigations, to quickly and easily obtain all kinds of information. No prosecutor or judge issues these subpoenas, unless a recipient refuses to produce the records. In that case, the government must get a court to enforce the subpoena.

This very efficiently provides judicial oversight where needed, without having busy judges review thousands upon thousands of routine requests for information, 99.9 percent of them uncontested and noncontroversial.

After the September 11 disaster, the FBI and the intelligence community at large were told their failure to “connect the dots” allowed the attacks to succeed.

Well, here’s a little secret: Connecting “dots” takes information. The more difficult you make it for that “street agent” who actually works these cases to get that information, the fewer dots get connected and the less safe you are.

Here’s a real-life scenario. Imagine yourself as lead investigator using a FISA (special surveillance court) wiretap to overhear your Bad Guy (al Qaeda midlevel leader) talking in code to another BG about a coming meeting to discuss “plans to celebrate the holidays.” Now the main BG hangs up and calls what sounds like a local produce dealer to talk about buying a certain number of “watermelons.”

Your translator tells you the tone and phrasing sound suspicious, but she’s been wrong before. You both agree the produce dealer might be involved with the “holiday plans,” whatever they are. And you have 100 other leads to follow up on, some of which look more promising.

Now, what tools does Congress give that agent to identify this supposed “produce dealer”? You can’t use a grand jury subpoena (something any rookie prosecutor can issue and which is reviewed by a judge only when contested by the recipient) because this is an intelligence and not yet a criminal case. And remember, you, as the investigator, are not on the trail of a serious criminal like a marijuana trafficker, so there is no administrative subpoena available to get the records you need immediately. No, you’re only pursuing ruthless terrorists who want to kill as many Americans as horrifically as possible.

So your best option is to drop everything else and spend about a day preparing an NSL. This is sent to several supervisors and attorneys for review and eventually to the special agent in charge, to be signed whenever he is personally available.

Since the boss often travels and the authority cannot be delegated, this may take some time.

Several weeks later you might have the records, but by then many other things have happened and you are pressed on compliance reports, delinquencies in mandatory training and other matters. The Bad Guys met, but aren’t sure what was discussed because you couldn’t get authority to monitor the meeting in time to cover it. And nothing happens. Then it does.

The week before Christmas, small but powerful bombs explode simultaneously in busy shopping malls all over the country, killing hundreds of holiday shoppers. Thousands more are maimed and wounded and widespread panic ensues. The stock market nosedives. American troops with loaded submachine guns patrol large, mostly empty, shopping malls nationwide.

Outraged, derisive senators and talking heads want to know why the “dots were not connected.” After all, the FBI overheard the terrorists plot a meeting to discuss “celebrating the holidays” followed by a call to the supplier of the bombs, thinly disguised as “watermelons.” You actually overheard the guy order the bombs. Just how incompetent and clueless are you, Mr. Specter demands to know.

So, there you have it. Success in fast-moving investigations depends on quickly obtaining information that can either eliminate a suspect or sharpen the focus. Instead of making this more difficult as Congress now plans by requiring judges to review and approve every NSL, lawmakers should add the administrative subpoena to the counterterrorism tool bag.

The same agents long entrusted by Congress with using these subpoenas in drug and other investigations should be given that authority in pursuing terrorists bent on our destruction.

Congress has the safety of millions of Americans at stake. Nothing less.

Chris Kerr served the FBI for 33 years, 26 of them as a special agent and agent supervisor at FBI Headquarters, retiring in May 2005. Mr. Kerr does not speak for the FBI or the Justice Department.

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