After posting about the use of National Security Letters (NSLs) to abuse the press yesterday, I discovered a very useful paper on NSLs by Charles Doyle. The first one is an abridged version of the second.
National Security Letters in Foreign Intelligence Investigations: A Glimpse at the Legal Background (abridged version of: National Security Letters in Foreign Intelligence Investigations: Legal Background.)
(NOT legal advice)
Doyle identifies two perils posed by National Security Letters:
Contempt of Court
If an NSL contains a nondisclosure notice, it must advice the recipient of its right to seek, or to have the agency seek, judicial review. At the recipient’s request, the issuing agency must petition the court for review, stating the specific facts that support its belief that disclosure might result in one or more of the statutorily identified adverse consequences. 140 If the court agrees that such a risk may exist, it must issue a nondisclosure order. 141 (page 21) Failure to honor a nondisclosure order is punishable as contempt of court, 142…
Contempt of court sanctions come into play if, and only if, the recipient has sought judicial review and becomes subject to a court order.
Non-Court Order Penalties
…and if committed knowingly and with the intent to obstruct an investigation or related judicial proceedings is punishable by imprisonment for not more than five years and/or a fine of not more than $250,000 (not more than $500,000 for an organization). 143
Unpacking the first reference in footnote 143, “18 U.S.C. 1510(e),”
(e) Whoever, having been notified of the applicable disclosure prohibitions or confidentiality requirements of section 2709(c)(1) of this title, section 626(d)(1) or 627(c)(1) of the Fair Credit Reporting Act (15 U.S.C. 1681u(d)(1) or 1681v(c)(1)), section 1114(a)(3)(A) or 1114(a)(5)(D)(i) of the Right to Financial Privacy Act  (12 U.S.C. 3414(a)(3)(A) or 3414(a)(5)(D)(i)), or section 802(b)(1) of the National Security Act of 1947 (50 U.S.C. 436(b)(1)), knowingly and with the intent to obstruct an investigation or judicial proceeding violates such prohibitions or requirements applicable by law to such person shall be imprisoned for not more than five years, fined under this title, or both.
As I read 18 U.S.C. 1510(e), it requires:
- Notice of the applicable disclosure prohibitions or confidentiality requirements
- knowingly (excludes accidental disclosure ?)
- with the intent to obstruct an investigation or judicial proceeding
The first step in any government prosecution for leaking an NSL requires proof of the applicable disclosure prohibitions, in other words, that some identified individual was notified of the applicable disclosure prohibitions.
The list of people who could have leaked an NSL of necessity includes all the people in the government with knowledge of the NSL, which I suspect won’t be disclosed to the trier of fact, plus the recipient and their counsel, etc.
Government documents, even FBI documents get leaked on a regular basis.
The lack of NSL leaks appears to be more a matter of timidity than serious jeopardy. The very worse response to terrorist-fiction-driven legislation is to take it seriously.
The more NSAs are treated as anything other than Col. “Bat” Guano responses to a world only he can see, the deeper we become mired in unconstitutional habits and practices.