Intelligence_ From Secrets to Policy - Mark M. Lowenthal [122]
Another aspect of leaks that became controversial was an offshoot of the Plame/Libby case. In 2006, Libby reported that President Bush authorized him in 2003 to discuss aspects of the then-classified 2002 national intelligence estimate (NIE) on Iraq WMD with a reporter. Although the president can decide to declassify information, Bush’s action seemed to undercut his administration’s complaints about leaking. It can be argued that the president cannot leak because the president also has the right to declassify intelligence, but the motives behind a revelation can be debated, as they were in this case. (U.S. intelligence officials were caught off-guard by the first unclassified acknowledgement that the United States used imagery satellites, which came in a speech made by President Lyndon Johnson in 1967.)
Finally, the Plame leak investigation led to questions about the roles and responsibility of the press with regard to classified information (see chap. 13).
NATIONAL SECURITY LETTERS
One investigative technique that has been used in espionage cases, as well as counterterrorism, is national security letters (NSLs). Although these have been authorized since 1978 as an exception to the law protecting personal financial data, their existence only became widely known in 2005. NSLs are a type of administrative subpoena—that is, they do not require a judicial order. NSLs are used most often by the FBI but also used by the CIA. NSLs require the recipients to turn over records and data pertaining to individuals, with the added proviso of a gag order—the recipient of the NSL may not reveal its contents or even the fact of its existence.
Since their inception, NSLs have expanded beyond their original provisions to include electronic communications and credit information. The USA Patriot Act, passed after the 2001 attacks, expanded the authority to issue NSLs from FBI headquarters only to field offices, included terrorism as a cause as well as espionage, and eliminated the requirement that the information being sought pertain to a foreign power or its agent.
Several controversies surround NSLs. The most obvious is the fact that they are not subject to judicial review and that they come under a gag order, which raises civil liberties concerns. Second, the use of NSLs has expanded greatly since 2001. According to the Justice Department, the number of NSLs rose to 19,000 annually in 2005, which involved 47,000 requests for information. Third, subsequent internal FBI and Justice Department scrutiny also revealed that some NSLs were issued without the proper “exigent circumstances.” FBI Director Robert Mueller took responsibility for the lapses and apologized, but this was not the first time that the FBI’s management had been called into question in the press and in Congress. It is likely that the use of NSLs will be subject to much greater internal and congressional oversight in the future.
CONCLUSION
As VENONA confirms, the espionage threat during the cold war was pointed and obvious, even though some cases of Soviet espionage—such as those of Rosenberg and Hiss—stilt remain controversial to some people. But, as the Ames and Hanssen cases indicated. Russian espionage did not end with the cold war. Neither did U.S. activities against Russia, given the Russians arrested bv dint