Justice Department Audits Flag FBI Privacy Abuses

WASHINGTON, March 13, 2008 — -- Two Justice Department audits out Thursday highlight reported FBI abuses in the gathering of personal information for national security cases, despite concerns raised by judges. The department's Inspector General has found that the FBI requested 192,499 records with no judicial review in between 2003-2006.

The figures comes in a new report issued by Inspector General Glenn Fine finding that the FBI issued 49,425 national security letters in 2006, a 4.7 percent increase over the last publicly disclosed figures. 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.

A separate report from the Inspector General, also released Thursday, found that the FBI submitted 47 requests to the Foreign Intelligence Surveillance Court, the secret court comprised of federal judges designated to consider such requests, under Section 215 of the USA PATRIOT Act.

Requests under Section 215, the so-called "Library Provision," allow the FBI to obtain business record information. The Inspector General found that on two occasions, the FISA Court denied the requests under the Patriot Act. The FBI then used national security letters to obtain the information.

"We found that the FBI had issued national security letters (NSL) for information& after the FISA Court, citing first amendment concerns, had twice declined to sign section 215 orders in the same investigation," the report noted.

The NSL report found continued problems with how the FBI used national security letters, and that the record requests were issued without proper authorization and resulted in the improper collection of telephone and e-mail records.

But the FBI said the numbers represent requests made before it put remedial measures into place.

"Not surprisingly, the errors discovered by the IG in connection with NSLs served during 2006 are similar to those discovered during the 2003-2005 review period," FBI Assistant Director John Miller said of the report's findings. "The FBI's extensive corrective actions began after the Inspector General brought these issues to our attention in the report published in 2007."

The Inspector General's review acknowledges those corrective actions by the FBI and the DOJ National Security Division since last year's review, but notes that it is too early to determine if the problems with how NSLs are issued have been eliminated.

The FBI and Justice Department have faced much criticism about the abuse of National Security Letters by the FBI. Last week, FBI Director Robert Mueller indicated that the 2006 figures showed similar concerns as the previous Inspector General review released a year ago.

"Last week, the FBI Director previewed and soft-pedaled the Inspector General's report on National Security Letters released this morning," Senate Judiciary Chairman Patrick Leahy, D-Vt., said Thursday. "It outlines more abuses and what appears to be the improper use of National Security Letters for years in a systemic failure throughout the FBI."

The American Civil Liberties Union released a statement in which former FBI agent Michael German, who now works for the group, charged that his former employer "has flagrantly put aside the rule of law and its internal guidelines time and again."

"Without an outside check," German continued, "agents are able to demand at will and ask questions later."

The review also notes an increase in the number of possible intelligence violations reported to the FBI's Office of General Counsel.

In 2006, FBI field offices reported 84 possible violations in 75 national security investigations. The violations included improper authorizations, unauthorized investigative activity and unauthorized collection.

According to the report, many of the instances involved third party error in providing more information than was requested by the FBI. This was a three-fold increase over the 26 possible violations reported in the 2003-2005 timeframe.

In 2006, the FBI referred 34 of the possible violations to the President's Intelligence Oversight Board.

One example cited concerns for the over collection of materials, such as "the receipt of telephone billing records for the 'family plan' (multiple telephone numbers) of individuals who were not relevant to an authorized investigation."

The Director of the ACLU's National Security Project, Jameel Jaffer, said in a statement that the report "makes abundantly clear that the FBI has been given far too much surveillance power. Because this power is not subject to meaningful judicial oversight, it is being grossly abused."

"There is a pressing need for stricter guidelines and more robust oversight," he continued. "The Inspector General's report shows what happens when the FBI is asked to police itself." Last year's report found that the FBI requested 143,074 NSLs from 2003-2005. The FBI issued approximately 39,000 NSLs in 2003, 56,000 in 2004, and 47,000 in 2005.

The FBI, working with the Justice Department's newly created National Security Division, has begun the process of auditing and reviewing how NSLs are used. In February 2006, the FBI's office of General Counsel established an NSL database to more accurately track the use of national security letters.

Last year's Inspector General report revealed that the FBI contacted three telephone companies for telephone records in 700 "exigent letters" without first seeking a National Security Letter. The Inspector General's review also found concerns that after the FBI had issued exigent letters for telephone records, it issued retroactive NSLs to cover information obtained from the Letters.

"More troubling, 11 blanket NSLs issued by [FBI] Headquarters officials in 2006 that sought telephone data on 3,860 telephone numbers did not comply with the Patriot Reauthorization Act requirements respecting these provisions, internal FBI policy, or both."

The use of the exigent letters violated internal FBI policy and the Attorney General's guidelines. Concerns over uses of the exigent letters have been serious enough that the DOJ Inspector General is conducting a separate review on the issue.