Stealth Surprises in NSA Report Take on Non-NSA Spying

NSLs have been used by the FBI for more than three decades and originally required a deputy assistant director to approve of each one. But right after the 9/11 attacks, Congress -- nearly unanimously -- passed the USA Patriot Act, which included a provision that gave special agents in charge of each of the bureau's 56 field offices the authority to issue them without a judge's approval.

"We absolutely oppose how they've been used in the last 12 years," the ACLU's Richardson said. After she personally studied their extensive use in court filings and law enforcement documents, she concluded that "we don't have terrorism cases to show as a result of these NSLs."

A former FBI official, however, told ABC News that was a "backwards way of looking at it."

"There may be investigations that don't go forward as a result of an NSL," the official said.

Because FBI national security activity is by definition classified Secret or above, most Americans have no sense of the great volume of tips and leads on terrorism and foreign intelligence the bureau receives, which, no matter how sketchy or dubious -- as most of them are -- each must be checked out with initial inquiries.

Using an NSL to quickly obtain information that validates a matter is not worth pursuing further is a valuable method of filtering leads without wasting judges' time and taxpayer dollars, the former senior FBI official argued.

"It's a very limited tool," said the former official. "But they're very useful."

The White House panel's NSL recommendation goes beyond even what a bipartisan bill sponsored by Senate Judiciary Committee Chairman Patrick Leahy, D-Vermont, has proposed with Rep. James Sensenbrenner, R-Wisc. which would require judicial review only of an order to NSL recipients not to disclose them to targets, which occurs in 97 percent of the cases, but not the NSL itself.

But FBI officials bristle at the notion of losing a basic counter-terrorism and foreign counter-intelligence tool that would likely jam a court docket, such as the yearlong backlog that they had to contend with prior to the Patriot Act.

FBI spokesman Paul Bresson reiterated past bureau statements on NSLs, an issue that hasn't been controversial since reforms were made six years ago.

"Tools such as the NSL remain an indispensable investigative technique and contribute significantly to the FBI’s ability to carry out its national security responsibilities," Bresson said. "The FBI remains committed to using NSLs in ways that maximize their national security value while providing the highest level of privacy and protection of the civil liberties of those they are sworn to protect."

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