By John Solomon
Washington Post Staff Writer
Tuesday, March 27, 2007
FBI agents repeatedly provided inaccurate information to win secret court approval of surveillance warrants in terrorism and espionage cases, prompting officials to tighten controls on the way the bureau uses that powerful anti-terrorism tool, according to Justice Department and FBI officials.
The errors were pervasive enough that the chief judge of the Foreign Intelligence Surveillance Court, Colleen Kollar-Kotelly, wrote the Justice Department in December 2005 to complain. She raised the possibility of requiring counterterrorism agents to swear in her courtroom that the information they were providing was accurate, a procedure that could have slowed such investigations drastically.
A internal FBI review in early 2006 of some of the more than 2,000 surveillance warrants the bureau obtains each year confirmed that dozens of inaccuracies had been provided to the court. The errors ranged from innocuous lapses, such as the wrong description of family relationships, to more serious problems, such as citing information from informants who were no longer active, officials said.
The FBI contends that none of the mistakes were serious enough to reverse judges' findings that there was probable cause to issue a surveillance warrant. But officials said the errors were significant enough to prompt reforms bureau-wide.
"It is clear to everybody this is a serious matter. This is something that has to happen quickly. We have to have the confidence of the American people that we are using these tools appropriately," said Kenneth Wainstein, the Justice Department's new assistant attorney general for national security.
The department's acknowledgment of the problems with the FISA court applications comes nearly two weeks after a blistering inspector general's report revealed widespread violations of the use of "national security" and "exigent circumstances" letters, which allow FBI agents to collect phone, e-mail and Internet records from telecommunications companies without review by a judge. The problems included failing to document relevant evidence, claiming emergencies that did not exist and failing to show that phone records requests were connected to authorized investigations.
In the use of both national security letters and the FISA warrant applications, officials acknowledged that the problems resulted from agents' haste or sloppiness -- or both -- and that there was inadequate supervision.
"We've oftentimes been better at setting the rules than we have been at establishing the internal controls and audits necessary to enforce them," FBI Assistant Director John Miller said.
FBI Director Robert S. Mueller III is scheduled to appear before the Senate Judiciary Committee today to answer questions about the use of national security letters. Congress will receive its annual report on FISA warrants next month.
Experts said Congress, the courts and the Justice Department share the blame for not conducting more aggressive oversight of FBI agents.
"It is a little too easy to blame the FBI, because the FBI gets away with this stuff when the other institutions of government fail to do their jobs," said Marc Rotenberg, president of the Electronic Privacy Information Center, which monitors civil liberties issues.
Records show that the FISA court approves almost every application for the warrants, which give agents broad powers to electronically monitor and surveil people who they allege are connected to terrorism or espionage cases. The number of requests rose from 886 in 1999 to 2,074 in 2005. The court did not reject a single application in 2005 but "modified" 61, according to a Justice Department report to Congress.
Senior Justice officials said they have begun a comprehensive review of all terrorism-fighting tools and their compliance with the law. That will be followed by regular audits and training to ensure that agents do not lapse into shortcuts that can cause unintended legal consequences.
Wainstein noted that before his division was created last year, the Justice Department could not systematically check FBI compliance with rules in all types of national security investigations. He acknowledged, for instance, that the department was told of 26 potential violations that the FBI had disclosed in its use of national security letters but did not focus on them.
Earlier this year, President Bush agreed to allow the FISA court to review surveillance requests from the National Security Agency after a battle with civil liberties groups and some lawmakers over the legality of that agency's spying effort, in which some suspects were overseas.
Last year's problems involving the FISA court, however, involved the issuance of secret warrants that authorized FBI agents to conduct surveillance inside the United States.
Shortly before the Sept. 11, 2001, attacks, the FISA court complained that there were inaccuracies in 75 warrants that the court had approved going back several years. The FBI responded by instituting new policies to better ensure that the information agents provided in warrant applications was accurate and could be verified if questioned.
But audits conducted beginning in 2003 showed an increasing number of errors and corrections in applications. On Dec. 12, 2005, the court sent a letter of complaint that raised the idea of agents being compelled to swear to the accuracy of information.
Justice and the FBI are reviewing about 10 percent of the 60,000 ongoing terrorism investigation files in search of problems. "We are learning to live in a different environment, and now we are aware and working on problems, and I think we are creating a lot of fixes," said Jane Horvath, the Justice Department's first chief privacy and civil liberties officer.
FBI officials said they expect the audit of national security letters for 2006 to show the same problems as those identified in the current audit, which covered 2003 through 2005.
"You are never going to be at a zero error rate because this is a human endeavor," Wainstein said. "Therefore it is subject to error on occasion. But we're going to do everything we can to minimize them."