By R. Jeffrey Smith
Washington Post Staff Writer
Wednesday, March 21, 2007
The Justice Department's inspector general told a committee of angry House members yesterday that the FBI may have violated the law or government policies as many as 3,000 times since 2003 as agents secretly collected the telephone, bank and credit card records of U.S. citizens and foreign nationals residing here.
Inspector General Glenn A. Fine said that according to the FBI's own estimate, as many as 600 of these violations could be "cases of serious misconduct" involving the improper use of "national security letters" to compel telephone companies, banks and credit institutions to produce records.
National security letters are comparable to subpoenas but are issued directly by the bureau without court review. They largely target records of transactions rather than personal documents or conversations. An FBI tally showed that the bureau made an average of 916 such requests each week from 2003 to 2005, but Fine told the House Judiciary Committee that FBI recordkeeping has been chaotic and "significantly understates" the actual use of that tool.
Fine, amplifying the criticisms he made in a March 9 report, attributed the FBI's "troubling" abuse of the letters to "mistakes, carelessness, confusion, sloppiness, lack of training, lack of adequate guidance and lack of adequate oversight."
His account evoked heated criticism of the bureau from Republicans and Democrats alike, including a comment from Rep. Dan Lungren (R-Calif.) that it "sounds like a report about a first- or second-grade class."
Testifying with Fine, FBI General Counsel Valerie E. Caproni attributed the shortcomings to poor controls instead of deliberate misconduct and offered profuse apologies. Asked by Rep. Melvin Watt (D-N.C.) whether the public should "be concerned about that kind of disregard of the law and internal process," Caproni replied: "I think the public should be concerned. We're concerned. And we're going to fix it."
She attributed the "F report card" from Fine partly to the bureau's inexperience in conducting its national security work in secrecy, away from a judicial system that threatens to expose any flaws. "That imposes upon us a far higher obligation to make sure we have a vigorous compliance system," she said. She noted, for example, that the FBI never told its agents to retain signed copies of the national security letters used.
"This was an example of the incredibly sloppy practice that was unacceptable," Fine interjected. His report also noted that some lawyers at FBI field offices -- who work for the special agents in charge, rather than for legal officials at FBI headquarters -- felt pressured to go along with requests for letters that they knew were not adequately documented.
Fine's estimate of the incidence of serious abuses was extrapolated from his investigators' scrutiny of 293 national security letters, out of 44,000 letters -- containing 143,074 data requests -- that the FBI has reported issuing during the three-year period he reviewed. Of those letters studied, he found "about seven where there were illegal uses" to obtain information the FBI was not entitled to have. Caproni questioned the validity of the extrapolation but acknowledged that 1 percent of the letters examined by Fine were tainted by "unquestionably serious violations."
Fine said, however, that he found no evidence that FBI agents "intended to go out and obtain information that they knew they could not obtain and said, 'We're going to do it anyway.' I think what they did was complete carelessness" prompted partly by a desire to take "shortcuts."
Fine's extrapolated tally of 3,000 likely illegal or improper letters did not include three other categories of wrongdoing disclosed in his report: One was a headquarters unit's use of 739 "exigent circumstances" letters to obtain telephone records from AT&T, Verizon and MCI on an emergency basis using false statements or improper documentation. The second was an improper use of 300 national security letters to obtain information for a single classified project. And the third was the FBI's use of improper letters to obtain the financial records of 244 people from banks.
Although the FBI's policy is to hold such records for at least 20 years, even if the target of the data collection proves not to have any terrorist connections, Caproni said that if no legal authority can be found during an audit now underway, the records will be destroyed.
Rep. F. James Sensenbrenner Jr. (R-Wis.) expressed surprise at how widespread the use of national security letters had become, asking: "Do we have that many potential terrorists running around the country? If so, I'm really worried." He said the inspector general's report shows that "the FBI has had a gross overreach," and added that its officials "can't get away with this and expect to maintain public support for the tools that they need to combat terrorism."