April 16, 2008 — -- The FBI may have committed as many as 6,400 intelligence violations in the course of its use of national security letters, Justice Department Inspector General Glenn Fine told lawmakers Tuesday.
National security letters allow FBI investigators to obtain personal records such as Internet, phone and financial information without going first to a judge for a warrant.
Fine explained the method his office used to estimate the number of violations.
"The FBI's 10 percent review of field office NSLs found at least 640 potential intelligence violations from 2003 through 2006," Fine told members of a House Judiciary subcommittee.
"Extrapolating the results of the FBI's 10 percent statistical sample to the full number of NSLs means that the total number of possible intelligence violations among all NSLs issued over the four-year period could be as high as 6,400," Fine continued.
Fine also described his office's oversight since it disclosed last year that the FBI had issued more than 140,000 national security letters from 2003 to 2005.
Last month, Fine released a follow-up report, which found that the FBI had issued 49,425 national security letters in 2006 alone.
The inspector general's reviews prompted the FBI and Justice Department's National Security Division to begin internal audits of how NSLs are used.
Under federal law, all intelligence agencies are required to self-report possible violations of the law to the president's Intelligence Oversight Board.
At the hearing, FBI general counsel Valerie Caproni said that many of the violations "involved third-party errors or inattention to detail." According to FBI officials that type of infraction includes clerical errors.
Asked about the 6,400 figure after the hearing, Caproni disputed it and said, "Ninety percent of those are third-party errors."
A Freedom of Information Act lawsuit by the Electronic Frontier Foundation against the FBI previously disclosed documents that show the FBI overcollected data from entire e-mail servers instead of only the intended suspects' communications.
"There was no violation of a customer's Fourth Amendment rights," Caproni said when asked about the overcollection of data in similar cases.
A document released Monday as part of the lawsuit disclosed that the FBI sought to use a national security letter to obtain information about an Egyptian student at North Carolina State University for potential links to suicide bombers in the deadly 2005 London attacks.
The documents showed that officials at FBI headquarters sought to obtain information from the NSL instead of using a traditional grand jury subpoena.
In an e-mail dated July 21, 2005, an FBI official whose name was redacted in the documents noted, "The director would like to use this as an example tomorrow as to why we need administrative subpoenas to fight the war on terror. In particular he would like to know how much extra time was spent having to get the grand jury subpoena."
The request came at a time when the FBI was pushing for administrative subpoena powers to be used for terrorism investigations.
On July 27, 2005 Mueller told the Senate Judiciary Committee, "We have relied on national security letters and FISA orders for business records. And although both are useful and important tools in our national security investigations, administrative subpoena power would greatly enhance our abilities to obtain information."
A lawyer for NC State University declined the FBI's national security letter request and only complied with the FBI's information request after receiving a traditional grand jury subpoena.
The student has been cleared of any wrongdoing. The FBI reported the matter as an intelligence oversight violation in 2007, after the review of NSLs was conducted by the inspector general.
The report to the intelligence oversight board noted, "The FBI's request of a national security letter requesting educational records was in violation of the attorney general's guidelines for FBI national security investigations."
On Tuesday, the American Civil Liberties Union also filed a federal lawsuit against the FBI seeking additional records concerning the FBI's issuance of national security letters at the request of other government agencies, particularly the Department of Defense.
In February 2006, the FBI's office of general counsel established an NSL database to more accurately track the use of national security letters. Before the establishment of the databases FBI field offices and agents manually kept NSL requests on 3 x 5 index cards.
Tuesday's hearing focused on proposed legislation sponsored by Rep. Jerrold Nadler, D-N.Y., to reform the FBI's use of national security letters.
"We need to bring the NSL authority in line with the Constitution, enhance checks and balances," Nadler said.
The FBI is opposed to the legislation. At the hearing FBI general counsel Caproni said, "Important to the consideration of any legislative changes are the many oversight and internal controls mechanisms that the FBI has established since the release of the IG's first report."
At the hearing David Kris, who served as associate deputy attorney general from 2000 to 2003, said that he supported going further than the proposed legislation.
"Congress should enact a single statute for providing national security subpoenas this would streamline and simplify current law," he said.
Bruce Fein, a former assistant attorney general during the Reagan administration, called for additional oversight requirements by Congress and was critical of the internal Justice Department reporting requirements: "These type of internal checks don't work. It's like a fox watching the chickens."