Egg On My Face?

Late yesterday the FBI offered a public statement explaining their Perkins Coie RA. That facility within Perkins Coie office space has been described as “secure”, which suggests that it is a SCIF (Sensitive Compartmented Information Facility). In other words, it contains secure communication facilities, whether computers or telephones or possibly other devices. Red State quotes the FBI statement:

“The FBI complies with the law and security policies and works with the Department of Justice to serve classified, Court-authorized legal process necessary to support national security investigations. In certain instances, the FBI coordinates with non-government, third-party entities, such as law firms, that represent service providers which receive these classified Court orders,” an FBI spokesperson told Fox News Digital in a statement.

“This includes providing access to private attorneys which represent the service providers in satisfaction of their legal rights. As part of this, the FBI ensures that any storage of classified orders meets stringent security protocols required for such documents.”

In ordinary language, what they’re talking about here is National Security Letters, which are essentially administrative subpoenas as used in national security investigations. While NSLs have been used for many years, even decades, well before the Patriot Act (which did greatly expand their use), the whole concept of administrative subpoenas—as opposed to grand jury subpoenas—remains legally contentious. Here’s why:

A national security letter (NSL) is an administrative subpoena issued by the United States government to gather information for national security purposes. NSLs do not require prior approval from a judge. The Stored Communications Act, Fair Credit Reporting Act, and Right to Financial Privacy Act authorize the United States government to seek such information that is "relevant" to authorized national security investigations. By law, NSLs can request only non-content information, for example, transactional records and phone numbers dialed, but never the content of telephone calls or e-mails.

NSLs typically contain a nondisclosure requirement forbidding the recipient of an NSL from disclosing the FBI had requested the information. The nondisclosure provision must be authorized by the Director of the FBI, and only after he or she certifies "that otherwise there may result a danger to the national security of the United States; interference with a criminal, counterterrorism, or counterintelligence investigation; interference with diplomatic relations; or danger to the life or physical safety of any person." Moreover, a recipient of the NSL may still challenge the nondisclosure provision in federal court.

The constitutionality of such nondisclosure provisions has been repeatedly challenged. …

The key legal problem with all administrative subpoenas is the lack of prior judicial approval—they are normally approved by an agency official, although they can be challenged in court. At a very ordinary level these types of subpoenas are used by administrative agencies, if necessary, in their capacity as watchdogs over public health safety and compliance with laws and regulations. The same reasoning applies to NSLs—monitoring possible terrorist activity through grand jury subpoenas would likely prove unwieldy and ineffective in this day and age. However, to this day these issues have never been settled by the SCOTUS with regard to NSLs. In 2017 they were dealt with by the 9th Circuit, but the issue of the legality of NSLs remains a possibility.

Here’s my educated guess as to what this SCIF at the Perkins Coie RA is about. The facility offers a relatively convenient location in which lawyers for the recipients of NSLs—”service providers”—are able to communicate securely with the FBI or DoJ with regard to their legal rights in relation to whatever NSL they have received. This arrangement was probably deemed more convenient for both the FBI and the service providers than the most obvious alternative—the lawyers showing up at FBIHQ and going through the process of gaining admittance.

As a practical matter, however, there is the whole business of keeping the SCIF secure, monitoring who enters, for what purpose, etc. Use of the facilities within the SCIF can be monitored remotely. All this is where Michael Sussmann comes in. Sussmann, in my understanding, retains his security clearance from his days at DoJ. As such, I’m guessing that he was considered eligible to be one of the people responsible for ensuring the security of the SCIF, which would involved confirming reasons for access, checking IDs, keeping records of access, etc.

I get all that, and regret perhaps jumping the gun in assuming impropriety or worse. On the other hand, there remains the matter of appearances, which have their own importance. This arrangement, while legally proper, places the FBI in the position of close cooperation with a private law firm—and, within that law firm with a lawyer who happens also to be a partisan political operative. It still seems to me that a more neutral appearing and arms length arrangement, one that doesn’t involve a private third party, would be preferable.

As it is, in addition to physical security concerns there remains the issue that this arrangement possibly gave Sussmann more access influence at the FBI than is desirable for someone with his profile. For example, this arrangement might have made it possible for Sussmann to pick up his phone and text the General Counsel of the FBI, requesting a meeting on an expedited basis. Oh, did that actually happen? And did the FBI’s former General Counsel just testify, only a week or so ago, that he had placed implicit trust in Sussmann’s representations based on his past dealings with Sussmann? Yes, all that did happen. Was John Durham aware of this arrangement? If so, he didn’t bring it up at trial—possibly restricted by the judge, or possibly because it didn’t appear to advance the case.

So, yes, I feel like I may have some egg on my face. On the other hand, I do think the FBI exercised poor judgment—for ten years.