Abuse of Authority

Sunday, March 11, 2007

THE EXPANSION of law enforcement powers approved by Congress after Sept. 11 and contained in the USA Patriot Act was conditioned on the notion that these new authorities would be carefully used and closely monitored. An infuriating report released Friday by the Justice Department's inspector general, Glenn A. Fine, demonstrates that the Federal Bureau of Investigation treated its new powers with anything but that kind of restraint. The report depicts an FBI cavalierly using its expanded power to issue "national security letters" without adequate oversight or justification.

National security letters are used to obtain information such as credit and financial data and telephone or e-mail subscriber records (but not the content of messages) without having to secure a court order. The Patriot Act made it far easier for the FBI to use this tool. Now, the information needs to be only "relevant" to a terrorism or espionage case -- involving any individual swept up in the case, not just the target -- and the heads of FBI field offices can approve the search.

Having obtained these far-reaching new powers, according to the report, the FBI proceeded to "seriously misuse" them. It didn't establish clear guidelines for using national security letters, didn't institute an adequate system for approving requests and didn't put in place procedures to purge information if the investigation fizzled. Although the FBI itself reported to a review board a mere 26 instances in which information was improperly obtained, the real number appears to be much higher. Of just 77 files reviewed by the inspector general, 17 -- 22 percent -- revealed one or more instances in which information may have been obtained in violation of the law. Indeed, the FBI's procedures were so slipshod, the report concludes, that it didn't even keep proper count of how many such letters were issued. The use of these letters ballooned from 8,500 in 2000 to 47,000 in 2005 -- but that "significantly understated" the real numbers, the report found.

Beyond that -- and perhaps the most disturbing revelation in a disturbing document -- the FBI came up with a category of demands called exigent letters, in which agents got around even the minimal requirements of national security letters. These exigent letters -- signed by FBI counterterrorism personnel not authorized to sign national security letters -- assured telephone companies on the receiving end that investigators faced an emergency situation and that subpoenas or national security letters would follow. In fact, according to the account of the more than 700 such letters, many times there were no urgent circumstances, and many times the promised follow-up authorization never happened. This lawless practice was so egregious it was stopped last May, FBI Director Robert S. Mueller III announced.

Mr. Mueller deserves credit for taking responsibility for the debacle. "I am the person responsible, I am the person accountable, and I am committed to ensuring that we correct these deficiencies and live up to these responsibilities," Mr. Mueller said at a news conference. Added Attorney General Alberto R. Gonzales, "To say that I'm concerned about what has been revealed in this report would be an enormous understatement." Those words, however heartfelt, do not excuse the director or the attorney general from the travesty that occurred on their watch and for failing, inexplicably, to put the proper controls in place. President Bush expressed confidence in the two officials yesterday but asked at a news conference during his trip to Uruguay, "What are you going to do to solve the problem, and how fast can you get it solved?" His expression of confidence might be premature, but the questions are good ones.

© 2007 The Washington Post Company