With Gonzales Under Fire, FBI Violation Gains Notice

By John Solomon
Washington Post Staff Writer
Saturday, July 28, 2007

Two weeks before President Bush won reelection in 2004, the FBI sent a rare report to its overseers: One of its agents had engaged in a willful and intentional violation of a law by improperly collecting financial records during a national security investigation.

The FBI concluded that the actions of the rookie agent amounted to "intelligence activities that . . . may be unlawful or contrary to executive order or presidential directive," according to a declassified memo from Oct. 21, 2004.

The incident was deemed serious enough for the bureau to notify both the President's Intelligence Oversight Board and the Justice Department, and to consider punishing the agent.

The violation was the only one after the Sept. 11, 2001, attacks that the FBI has specifically flagged as intentional. But it has attracted fresh attention because Attorney General Alberto R. Gonzales testified six months later that no "verified case of civil liberties abuse" had occurred since the USA Patriot Act was enacted.

Gonzales told senators this week that his use of the word "abuse" was meant to narrowly refer only to intentional violations. "My view and the views of other leadership in the department is, in fact, when we're talking about abuses of the Patriot Act, we're talking about intentional, deliberate misuse of the Patriot Act," he testified Tuesday in explaining his 2005 remarks.

Gonzales was not the attorney general in October 2004, when Justice Department officials were informed about the FBI agent's intentional violation. But Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said yesterday that the existence of the notification has added to concerns that Gonzales has not been fully candid in his testimony.

"Oversight by Congress to minimize abuse of government's power relies on full and honest answers from government officials," particularly with regard to Patriot Act matters, Leahy said in a statement. "Time and again this Attorney General has not met that obligation."

The issue of what Gonzales knew of FBI violations and when arose this month, when The Washington Post reported that the FBI had sent him at least half a dozen reports of legal or procedural violations before he gave his 2005 testimony.

In total, the FBI has told the White House and the Justice Department about a few hundred instances since 2001 in which its agents violated procedures or laws designed to protect the civil liberties and privacy of Americans. Most of the problems involved paperwork mistakes, the inadvertent collection of phone data for the wrong person or the collection of data past a legal deadline, officials have said.

Officials said the 2004 violation stands out because it is the sole occasion on which the FBI itself concluded that an agent intentionally violated safeguards on the use of national security letters, investigative tools that allow agents to gather phone, computer or bank records without court approval or a grand jury subpoena.

When the use of the letters was expanded by the Patriot Act, Congress decided that the tools could be used to gather the full credit reports of Americans in investigations related only to terrorism. In addition, agents seeking financial records are required to obtain the written approval of a senior supervisor with special authority for national security letters.

In the October 2004 case, the bureau concluded that a young agent acted on her own in gathering financial records without the approval of a high-ranking official, violating both bureau policy and the Right to Financial Privacy Act. The act blocks bank records from being accessed by government agencies without proper legal authority.

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