By John Solomon and William Branigin
Washington Post Staff Writers
Friday, March 9, 2007 6:48 PM
Members of Congress vowed today to conduct investigative hearings -- and consider reining in parts of the Patriot Act -- following revelations of pervasive problems in the FBI's use of national security letters to secretly obtain telephone, e-mail and financial records in terrorism cases.
Amid a growing furor on Capitol Hill over the disclosures in a Justice Department inspector general's report, FBI Director Robert S. Mueller III publicly took responsibility for the lapses but defended the use of national security letters as a vital tool in the war on terrorism.
In a news conference, Mueller acknowledged that the FBI did not have appropriate policies in place to handle some of its new authorities under the Patriot Act and did not always adhere to the policies that the agency did establish.
"I am to be held accountable," Mueller said, adding that he should have set up an audit system, internal controls and a new regimen of training and oversight to resolve "confusion and uncertainty in the field" over the of national security letters.
However, the FBI director dismissed the idea of offering to resign, saying there has been "no discussion of that." And he said the FBI already has taken steps to correct the deficiencies identified by the inspector general.
Mueller delivered his mea culpa as the nearly 200-page inspector general's report circulated on Capitol Hill, where members of the House and Senate judiciary and intelligence committees were briefed on the findings that the FBI mishandled one of its potent anti-terrorism tools. The committees today received a classified version of the report.
The problems included failing to provide proper documentation to justify the use of the national security letters and significantly underreporting to Congress the number of times the special authority was used. The reports to Congress are required by law. The Washington Post reported on the findings in today's editions.
The inspector general found that the violations were not deliberate, but that they could be widespread.
The inaccuracies and problems disclosed in the inspector general's report prompted Justice Department officials to send letters today to various congressional committees and individual lawmakers correcting past testimony in open and classified hearings, briefings and letters. The effort included correcting figures about the previously underreported usage of national security letters, as well as inaccurate assurances that safeguards were being followed.
One such letter was sent by Acting Assistant Attorney General Richard A. Hertling to Sen. Arlen Specter (R-Pa.), the former Senate Judiciary Committee chairman, to correct representations made to him on Nov. 23, 2005, after a Washington Post story raised concerns about the scope of the national security letter program and the safeguards officials were using.
"We have determined that certain statements in our November 23 letter need clarification," Hertling wrote, adding that "we fully recognize that Congress's ability to conduct oversight is hampered by a failure to provide accurate information."
In December 2005, The Post published a lengthy response to the Justice Department letter. The original Post story the previous month prompted lawmakers to demand an inquiry by the inspector general, leading to the report that was released today, according to sponsors of the Patriot Act amendment that required the report.
The inspector general's report discloses that on 739 occasions, the FBI obtained telephone toll or subscriber records without first having a required national security letter or grand jury subpoena, according to an unclassified version. Instead, the report says, the FBI used a tactic called "exigent letters" that claimed there were emergencies that warranted getting the information immediately. Many times, no such emergencies existed, the inspector general found.
"On over 700 occasions the FBI obtained telephone billing records or subscriber information from three telephone companies without first issuing national security letters or grand jury subpoenas," the report says. It notes that many times the FBI supervisors who approved such requests did not even have the legal authority to sign national security letters.
The report also details how, after getting its sweeping new anti-terrorism powers under the Patriot Act, the FBI did not put into place basic training and record-keeping procedures to ensure civil liberties were protected. Such problems kept the FBI from giving Congress legally required accurate numbers on the times they used national security letters, the investigation found.
"During the time period covered by this review, the FBI had no policy or directive requiring the retention of signed copies of the national security letters or any requirement to upload national security letters to the FBI's case management system," the report says.
Likewise, the bureau failed to give its agents "comprehensive guidance" on the types of legal violations it might have to report to intelligence authorities.
In today's news conference, Mueller said the FBI "discontinued the use of exigent letters" in May 2006 when it learned of the problems with them. "As we have identified these problems, we have addressed them," he said.
While acknowledging that the inspector general's report identified "serious problems," Mueller offered assurances that "the number of abuses is exceptionally small" compared to the overall number of national security letters, and he asserted that "no one has been damaged" by the shortcomings.
He said the letters "contribute significantly to our counterterrorism and intelligence missions" and are "the bread and butter of our investigations." He added, "In order to prevent attacks in the future, we absolutely have to track terrorists overseas and see what ties they might have in the United States." Telephone toll records obtained under the letters are among the keys to doing that, he said.
Specter, the top Republican on the Senate Judiciary Committee, raised the possibility that Congress might shrink some of the FBI's antiterrorism powers.
"I am very concerned that the FBI has so badly misused national security letters," Specter said in a statement. "When we reauthorized the Patriot Act last year, we did so on the basis that there would be strict compliance with the limitations included in the statute."
Specter said the committee "will now have to undertake comprehensive oversight on this important matter and perhaps act to limit the FBI's power by revising the Patriot Act."
Specter later told reporters that Congress may have to "change the law . . . to impose statutory requirements and perhaps take away some of the authority which we've already given tot he FBI, since they appear not to be able to now how to use it."
The news that the FBI failed to follow its own basic rules and policies designed to protect civil liberties came at the end of a difficult political week for the Bush administration. The last several days have also seen the conviction of Vice President Cheney's former chief of staff in the CIA leak case, growing controversy over the firings of federal prosecutors and escalating violence in Iraq.
Democrats quickly sought to capitalize.
Senate Majority Whip Richard J. Durbin (D-Ill.), who had been pressing for a review of national security letters since 2005, said the report "confirms the American people's worst fears about the Patriot Act.
"It appears that the administration has used these powers without even the most basic regard for privacy of innocent Americans," Durbin said in a statement.
He called for "reasonable reforms" to the Patriot Act that have been proposed, but not acted on, in the past.
"We should give the government all the tools it needs to fight terrorism," Durbin said. "However, I continue to believe that the Patriot Act must include reasonable checks and balances to protect the constitutional rights of all Americans."
Sen. Charles E. Schumer (D-N.Y.), like Specter a member of the Senate Judiciary Committee, said the problems identified by the inspector general were a "profoundly disturbing breach of public trust."
Schumer also promised that the panel would hold hearings and then likely consider legislation to rein in portions of the Patriot Act.
"This goes above and beyond almost everything they've done already," Schumer said of the allegations in the report. "It shows just how this administration has no respect for checks and balances."
House Majority Leader Steny H. Hoyer (D-Md.) demanded that Justice Department officials be held accountable but declined to specify if anyone should be fired or resign over the revelations.
"It is not enough for this administration to claim that it is upset by today's disclosures," he said. "It must also take full responsibility for the errors that occurred, hold the appropriate officials accountable for what happened, and, most important, ensure that it does not happen again."
Anthony Romero, executive director of the American Civil Liberties Union, said the report shows the need for an independent investigation of the Justice Department's anti-terrorism tactics.
"It confirms our greatest suspicions about the abuse of Patriot Act powers and, specifically, national security letter powers," Romero said. "The report is really only a description of the tip of the iceberg."
Staff writers Dan Eggen and Paul Kane contributed to this report.