The Department of Justice Inspector General issued a report last week detailing the FBI's misuse of national security letters to collect information about innocent Americans without any connection to terrorism.
A national security letter, or NSL, is a special request for records that (unlike a search warrant) is never seen by a judge. Under the expanded powers granted by the USA Patriot Act, any FBI field supervisor can lawfully issue an NSL and serve it on libraries, telephone companies and businesses to get records on anyone in the country. All that's required is an FBI certification that that the records are "sought for" or "relevant to" an investigation "to protect against international terrorism or clandestine intelligence activities." There is no judicial or Department of Justice review, and the agency can keep the information it obtains forever.
With power like that, you wouldn't think that the FBI could push the envelope even further. But it has.
The IG's report (.pdf) details a host of errors and violations in connection with the issuance of NSLs. Out of a sample of 293 of the nearly 19,000 letters, covering 47,000 separate requests for information in 2005, the IG found 22 possible breaches of internal FBI and Justice Department regulations.
Agents used NSLs without citing an authorized investigation and claimed "exigent" circumstances that did not exist. In two cases, the FBI obtained full credit reports they should not have been allowed to have. In other cases, telephone companies, banks and internet providers improperly responded to national security letters with detailed personal information about customers, and the FBI kept that information.
Perhaps the biggest issue is that the FBI and Justice Department didn't keep track of how many letters they issued, as the law requires, or document the reasons why they issued them. They didn't turn accurate information over to Congress, leaving lawmakers and the American public with a grossly incomplete picture of what's really going on.
While FBI head Robert Mueller and attorney general Alberto Gonzales are responsible for the NSL problems overall, responsibility for failing to tell Congress the truth falls squarely on shoulders of the president.
When Congress reauthorized the NSL provision of the USA Patriot Act, it required the Department of Justice to report statistical data on the use of NSLs. The Bush administration not only opposed this reporting requirement, but when Bush signed the reauthorization into law, he issued a signing statement indicating he did not believe the administration was bound by the reporting requirement.
Bush pressed for the law; Bush opposed the reporting requirement; Bush stated that he would not necessarily follow the reporting requirement after Congress imposed it. If the president doesn't take reporting seriously, why would regional offices do so?
It has been a refreshing surprise to see Democratic and Republican senators alike suggest that Gonzales, who runs the DOJ and oversees the FBI, should step down. Congress now promises "extensive hearings" on the NSL problems, and is making some noises about repealing expanded NSL authority granted by the USA Patriot Act.
In response, the administration and pro-surveillance pundits have tried to minimize the problem as a procedural one within the Bureau, while lauding the importance of the letters in terrorism and spy cases. Their position is based on myths that recent history and the new report debunk.
Myth: The problems are only procedural record keeping and reporting issues, not intentional or criminal misuse.
Fact: The record-keeping and reporting problems prevent us from seeing the full picture of abuse. The law only requires reporting overall statistics, and the FBI agencies failed to do even that properly. But what little information we have illustrates intentional misuse of these letters. The FBI used them when there was no investigation pending, used them to obtain information that they legally needed court orders to obtain, and told companies there were exigent circumstances when there weren't any (I call this lying). The FBI used the letters in contravention to statute and policy.
If there were no criminal violations, it is because Congress neglected to make improper use of NSLs a crime, not because the FBI activities were not violations of law. Perhaps this oversight can be remedied.
Myth: The FBI is only struggling because it is a law enforcement agency, not a national security agency. Our intelligence agencies are doing better.
Fact: The reason this report is a black eye to the FBI is because the Inspector General only reported about FBI use of the letters. The Pentagon and the CIA are also using NSLs (with dubious legal authority). These agencies are not pure as the driven snow: The Pentagon improperly maintains files on war protesters and the CIA is facing criminal prosecutions in Italy and Germany for kidnapping and torture as part of the United States' "extraordinary rendition" program.
Myth: In the post 9/11 environment, NSLs have been an indispensable investigative tool.
Fact: In 2005, The Washington Post reported that the Bush Administration could offer no examples in which NSLs played a favorable role in disrupting a terrorist plot. The IG report explained this lack of evidence somewhat, stating that FBI agents found NSLs effective in developing evidence to support applications for national security wiretaps, ruling out suspicious persons, assessing financial links between investigated subjects and other matters.
That means information subject to NSLs is part and parcel of a national security investigation, rather than a make-or-break tool in and of itself. Forcing the Bureau to go to court to use that tool would not unduly hinder the FBI in obtaining the information it wants -- only in obtaining it improperly and without cause.
Congress should act now. The FBI won the expanded NSL power in USA Patriot by claiming it had four problems with pre-9/11 procedure. Two are no longer applicable -- internal DOJ rules no longer limit the use of the letters to particular phases of investigations, and the FBI's resources are now up to the task of analyzing the kind of information obtained through NSLs.
The other two -- significant delays in approvals, and a burden of proof which requires "specific and particularly facts" that the subject was an "agent of a foreign power" -- would return, if Congress were to take back its USA Patriot grant of authority.
In compromise, Congress can ease the burden of proof from pre-9/11 standards, if it must. It could also put in an emergency provision, like the kind in the Foreign Intelligence Surveillance Act for wiretaps, allowing the Bureau to act prior to court approval in rare cases, provided it's willing to explain itself to a judge later.
But whatever else they do, our lawmakers must amend the statute to require judicial review before an NSL can be issued. Then at least innocent Americans will only be monitored when a judge agrees that the record grab is really related to a terrorism or spy investigation. While it's at it, Congress can put in civil and criminal penalties for violating the law, so the next time the FBI messes up, there's more at stake than just having to say it's sorry.
NSA Bill Performs a Patriot Act
