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.
"In this instance the conduct . . . was wilful and intentional even though she did not realize that she had acted in contravention of the RFPA and Bureau policy," the October 2004 report said. "It should also be noted that SA [name redacted] was at the time a probationary agent."
"This matter has been referred to the FBI's Office of Professional Responsibility for such actions as may be appropriate," FBI Deputy Counsel Julie Thomas wrote to the presidential board charged with civilian oversight of the legality of U.S. intelligence activities. The bureau said yesterday that the agent was subsequently disciplined.
Details of what the investigation involved and which documents were gathered were redacted from the copy of the memo that the bureau released publicly.
"The fact that the FBI considers this intentional and willful behavior speaks volumes," said Marcia Hofmann, a lawyer at the Electronic Frontier Foundation, which helped win the release this summer of FBI documents related to national security letters. "This is not a situation where a civil liberty group is putting that label on the conduct. It is the FBI itself, and I think the attorney general should have taken that very seriously."
The Justice Department said it stands by what Gonzales said in his initial testimony. "The Justice Department has routinely provided Congress with reports of intelligence collection mistakes and errors, and thus the Attorney General's testimony could not fairly be understood as a representation that such mistakes had not occurred since the passage of the Patriot Act," spokesman Dean Boyd said in a statement.
White House press secretary Tony Snow, responding to calls from some lawmakers for Gonzales to step down, reaffirmed yesterday that Bush still supports him. Although some lawmakers have said Gonzales misled them in testimony about another matter -- the administration's warrantless surveillance program -- Snow said Gonzales testified truthfully about that and "tried to be very accurate.
A White House spokeswoman, Dana Perino, accused Democrats of being on a "crusade" to destroy the attorney general.
Meanwhile, an internal Justice Department inquiry is looking into whether anyone involved in past abuses of national security letters or related tools called "exigent circumstances" letters should be held criminally or administratively liable.
Its Office of Professional Responsibility is reviewing whether lawyers in the FBI's national security law office -- who are responsible for ensuring that agents comply with the law -- failed to perform their job.