John Doe, Inc. v. Mukasey (2d Cir) (NSLs)

* John Doe, Inc. v. Mukasey (2^nd Cir. Dec. 15, 2008)

A very interesting decision today by the 2^nd Circuit in the long-running litigation involving the FBI’s ability to issue “national security letters” to communication service providers and to direct recipients of such letters not to go public with that information.  The panel (Newman, Calabresi, and Sotomayor), in an opinion by Judge Newman, has reinstated the government’s capacity to issue such letters, subject to a novel procedural requirement in which the government must initiate judicial review of the non-disclosure order in the event that the letter recipient wishes to contest the order.

briefing on proposed changes to FBI Nat Sec Invest. Guidelines

* Consolidated Attorney General Guidelines – Background Briefing (9/13/08)

I don’t have a copy of the draft Consolidated AG Guidelines to circulate, but those who are interested in the topic might want to review the recent background briefing posted here:

http://www.usdoj.gov/opa/pr/2008/September/08-opa-814.html

This exchange highlights the effort to permit investigators acting under the rubric of intelligence rather than criminal investigation to employ three techniques at the “threat assessment” stage: recruiting human sources (or tasking existing sources); pretextual interviewing (i.e., interview by FBI agent either without disclosing affiliation or without disclosing the real subject of interest); and ordinary physical surveillance.