Failures at FBI Acknowledged
Mueller Accepts Criticism, Proposes Alternative to Controversial 'Letters'

By R. Jeffrey Smith
Washington Post Staff Writer
Wednesday, March 28, 2007

Angry senators accused FBI Director Robert S. Mueller III yesterday of management failures that resulted in the dispatch of hundreds of national security letters and intelligence surveillance warrants containing erroneous information, and Mueller said he accepted that characterization.

Both Republicans and Democrats at a Senate Judiciary Committee hearing said the abuses have undermined the FBI's reputation and its authority to continue using such letters and warrants under conditions that Congress eased in the wake of the Sept. 11, 2001, terrorist attacks. The letters allow the FBI to request information from businesses without a warrant, subpoena or judicial review.

"We're going to be reexamining the broad authorities we've granted to the FBI under the Patriot Act," the committee chairman, Patrick J. Leahy (D-Vt.), said after decrying what he described as "widespread illegal and improper use" of the national security letters. "It seems to me the FBI is again at a crossroads."

Sen. Arlen Specter (Pa.), the panel's ranking Republican, chimed in by saying that "every time we turn around, there is another very serious failure on the part of the bureau." Citing recent independent reports criticizing the bureau's handling of the letters, its mistallying of terrorism statistics, and the theft of FBI laptop computers containing sensitive data, Specter said: "Another shoe drops, virtually on a daily basis."

Regarding the letters, Specter added: "At a minimum, there was a reckless disregard for the requirements of law." He also said that he was "not impressed" by Mueller's explanation of the mistakes in surveillance warrants, which he said had subjected "someone to an invasion of privacy."

Mueller -- who was making his first appearance at a hearing since the March 9 release of a highly critical report by the Justice Department's inspector general about the FBI's abuse of the letters -- acknowledged the failure and said that "what I did not do, and should have done, is put in a compliance program, complete with auditing," to ensure that legal rules were being followed.

The report accused the FBI of failing to retain evidence that its collection of more than 142,000 telephone, credit and e-mail records was legal, of failing to ensure that the data it received matched its needs or requests, and of failing to monitor abuses and accurately tally statistics for Congress.

Mueller said reforms are being made, but many members of the Senate panel expressed impatience and indicated that they want to change the law.

"This was a very controversial addition to the Patriot Act," Sen. Dianne Feinstein (D-Calif.) said about the FBI's authority to use the national security letters. "There were many members that had deep concerns about this. The language was negotiated. We were very specifically trying to put in checks and balances. And then it appears they all just melted into oblivion with sloppy administration."

Sen. Russell Feingold (D-Wis.) suggested that he wants to tighten the legal standard for using national security letters. Sen. Richard J. Durbin (D-Ill.), the majority whip, was less specific, but said: "I believe there are some fundamental weaknesses and deficiencies in the law, that we have given such a broad power to the department and to the FBI that it is really open to abuse."

Mueller expressed concern about any modifications to the USA Patriot Act that might "handcuff us" in terrorism investigations, but he also said that the FBI would be willing to jettison its authority to use national security letters if it is granted the power to use administrative subpoenas to collect the same information.

The FBI uses such subpoenas now in drug, pornography and health-care investigations, and extending that authority to national security probes would be "beneficial both to the recipient as well as to our investigators," Mueller said. He said businesses that receive data requests prefer a subpoena because "they understand it is a judicial instrument" and can challenge it in court.

For FBI agents, using administrative subpoenas under a single standard would be simpler than complying with the multiple statutes governing the national security letters, Mueller added. A Judiciary Committee staff member called the idea "intriguing."

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