Frequent Errors In FBI’s Secret Records Requests
Audit Finds Possible Rule Violations
By John Solomon and Barton Gellman
Washington Post Staff Writers
Friday, March 9, 2007; A01
A
Justice Department investigation has found pervasive errors in the
FBI’s use of its power to secretly demand telephone, e-mail and
financial records in national security cases, officials with access to
the report said yesterday.
Justice Department Inspector General Glenn Fine said possible violations were not deliberate. (Dennis Cook – AP)
The inspector general’s audit found 22
possible breaches of internal FBI and Justice Department regulations —
some of which were potential violations of law — in a sampling of 293
“national security letters.” The letters were used by the FBI to obtain
the personal records of U.S. residents or visitors between 2003 and
2005. The FBI identified 26 potential violations in other cases.
Officials
said they could not be sure of the scope of the violations but
suggested they could be more widespread, though not deliberate. In
nearly a quarter of the case files Inspector General Glenn A. Fine
reviewed, he found previously unreported potential violations.
The
use of national security letters has grown exponentially since the
Sept. 11, 2001, attacks. In 2005 alone, the audit found, the FBI issued
more than 19,000 such letters, amounting to 47,000 separate requests
for information.
The letters enable an FBI field office to compel
the release of private information without the authority of a grand
jury or judge. The USA Patriot Act, enacted after the 2001 attacks,
eliminated the requirement that the FBI show “specific and articulable”
reasons to believe that the records it demands belong to a foreign
intelligence agent or terrorist.
That law, and Bush
administration guidelines for its use, transformed national security
letters by permitting clandestine scrutiny of U.S. residents and
visitors who are not alleged to be terrorists or spies.
Now the
bureau needs only to certify that the records are “sought for” or
“relevant to” an investigation “to protect against international
terrorism or clandestine intelligence activities.”
According to
three officials with access to the report, Fine said the possible
violations he discovered did not “manifest deliberate attempts to
circumvent statutory limitations or departmental policies.”
But
Fine found that FBI agents used national security letters without
citing an authorized investigation, claimed “exigent” circumstances
that did not exist in demanding information and did not have adequate
documentation to justify the issuance of letters.
In at least two
cases, the officials said, Fine found that the FBI obtained full credit
reports using a national security letter that could lawfully be
employed to obtain only summary information. In an unknown number of
other cases, third parties such as telephone companies, banks and
Internet providers responded to national security letters with detailed
personal information about customers that the letters do not permit to
be released. The FBI “sequestered” that information, a law enforcement
official said last night, but did not destroy it.
Alan Raul,
vice chairman of the White House Privacy and Civil Liberties Oversight
Board and a former Reagan White House lawyer , said in an interview
that the Bush administration has asked the board to review and
recommend changes in the FBI’s use of national security letters.
“The
processes seem to be seriously in need of tune-up,” Raul said. “We hope
to play a role in helping the FBI get to where it knows it needs to be.”
Lanny Davis,
another board member and a former attorney in the Clinton White House ,
said his recent briefing by the FBI left him “very concerned about what
I regard to be serious potential infringements of privacy and civil
liberties by the FBI and their use of national security letters. It is
my impression that they too regard this as very serious.”
Fine’s
audit, which was limited to 77 case files in four FBI field offices,
found that those offices did not even generate accurate counts of the
national security letters they issued, omitting about one in five
letters from the reports they sent to headquarters in Washington. Those
inaccurate numbers, in turn, were used as the basis for required
reports to Congress.
Officials said they believe that the 48
known problems may be the tip of the iceberg in an internal oversight
system that one of them described as “shoddy.”
The report
identified several instances in which the FBI used a tool known as
“exigent letters” to obtain information urgently, promising that the
requests would be covered later by grand jury subpoenas or national
security letters. In several of those cases, the subpoenas were never
sent, the review found.
The review also found several instances
in which agents claimed there were exigent circumstances when none
existed. The FBI recently ended the practice of using exigent letters
in national security cases, officials said last night.
The
report, mandated by Congress over the Bush administration’s objections,
is to be presented to several House and Senate committees today. But
senior officials, speaking with permission on the condition that they
not be identified, said the Bush administration has already responded
vigorously to the audit’s findings.
Attorney General Alberto R.
Gonzales learned of the findings three weeks ago and “was incensed when
he was told the contents of the report,” according to a Justice
Department official.
“The attorney general commends the work of
the inspector general in uncovering serious problems in the FBI’s use
of NSLs,” said Tasia Scolinos, a spokeswoman for Gonzales. “He has told
[FBI Director Robert S. Mueller III] that these past mistakes will not
be tolerated, and has ordered the FBI and the department to restore
accountability and to put in place safeguards to ensure greater
oversight and controls over the use of national security letters.”
FBI
and Justice Department officials have long described national security
letters as an indispensable tool in combating terrorism, and Fine’s
report, according to one official who cited excerpts, said
investigators told the inspector general that the letters “contributed
significantly to many counterterrorism and counterintelligence
investigations.” Fine did not make an independent assessment of the
efficacy of the letters as investigative tools.
FBI procedures
require that any possible violation of law or regulation on national
security letters be reported to the President’s Intelligence Oversight
Board within 14 days of discovery. Of the 26 breaches it discovered
before Fine’s review, the FBI referred 19 to the oversight board.
Among
the responses officials highlighted last night is a tracking database
under development by the FBI to ensure that its accounting of national
security letters is accurate. One official said the FBI would begin
deployment of the system in four of its 56 field offices by the end of
the year. Meanwhile, the official said, each office will be required to
“hand count” the numbers every month.
Gonzales, officials said,
has ordered the department’s national security division and inspections
division to begin audits next month of a sampling of national security
letters in every field office. About 15 offices should be audited by
the end of the year, the official said.
Gonzales has also ordered
that he chief counsel of every field office personally sign off on
every national security letter, a practice that has been encouraged but
not required until now.
The office of Director of National
Intelligence Mike McConnell has established a working group to consider
how much of the information gathered by national security letters
should be retained and whether any of it should be purged. After the
Patriot Act was passed, the Bush administration eliminated the FBI’s
requirement that irrelevant personal information from case files be
discarded after cases are closed.
Mueller has ordered improved
training of agents involved in national security cases and better
record-keeping. Last May, changes began with the fixing of databases.
A
senior group of FBI inspectors has been asked to review the conduct of
agents and their supervisors to determine if any should be disciplined
for mistakes.
Frequent Errors In FBI’s Secret Records Requests – washingtonpost.com
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