It’s been a dreadful week for Bush Administration cronies at the Department of Justice and a frightening week for those concerned about the integrity and competence of the nation’s top law-enforcement body. Earlier this week, Congress held hearings about the December firings of eight respected U.S. attorneys, which many lawmakers believe may have been politically motivated. Today, the Justice Department released a nearly 200-page report by the DOJ’s Inspector General that chastised the Federal Bureau of Investigation (FBI) for improper use of National Security Letters (NSLs) in the acquisition of private information about both U.S. residents and non-residents.
According to the report, investigators in the DOJ’s Office of the Inspector General (OIG) “found that the FBI used NSLs in violation of applicable NSL statutes, Attorney General guidelines, and internal FBI policies.†A large number of the infractions, according to the OIG, violated the Electronic Communications Privacy Act (ECPA): “In addition, we found that the FBI circumvented the requirements of the ECPA NSL statute when it issued at least 739 ‘exigent letters’ to obtain telephone toll billing records and subscriber information from three telephone companies without first issuing NSLs.†Exigent letters are produced when FBI agents feel they need immediate information, and the OIG found that these claims were exaggerated in many of these cases.
“Moreover,†the report continues, “in a few other instances, the FBI sought or obtained information to which it was not entitled under the NSL authorities.†These “instances†appear to be clear and quite extreme violations of NSL statutes: using an ECPA NSL to secure educational records; obtaining telephone records that were not part of a national-security investigation; and obtaining credit reports as part of a counterintelligence investigation.
The report also claims that the FBI “sought and obtained financial records and telephone toll billing records without first issuing NSLs.†The absence of appropriate NSLs in these cases becomes even more alarming when you consider these numbers, reported by the OIG: In the three-year period from 2003 to 2005, the FBI delivered more than 143,000 NSL requests for information. Additionally, the percentage of personal-data requests related to “U.S. persons†(as opposed to non-U.S. persons) jumped from 39 percent in 2003 to more than half of all requests in 2005.
What’s more, the report claims that these statistics actually “understate the total number of national security requests†because of “inaccuracies in the OCG database.†The Federal Reserve’s Office of the General Counsel (OCG) has a database that is supposed to track all NSL requests for financial records. However, the OIG report says that the OCG database failed to account for a significant percentage of NSLs and NSL requests that were confirmed by FBI field-office investigations.
Other problems highlighted: poor training of agents after the Patriot Act was passed; faulty accounting and record-keeping of NSL requests; and inaccurate reporting to Congress. Under the Patriot Act, the FBI’s authority to make NSL requests was greatly expanded. In 2000, the last full year before the Patriot Act, only 8,500 NSL requests were made. However, the Patriot Act allows the FBI to seek personal data in a much wider range of cases. No longer are NSLs limited to pursuit of information related to a foreign power or agent; no longer do they have to relate solely to the specific subject of an investigation.
The report concluded that there was no indication that the “FBI’s misuse†of NSLs “constituted criminal misconduct.†Perhaps. However, Congress is planning on conducting hearings into the matter, which, in the aftermath of the latest DOJ uproar, may eventually lead to a scaling back of the Patriot Act’s reach and greater protection of our civil liberties.
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