Lawmakers Want FBI Access to Data Curbed

By Carrie Johnson
Washington Post Staff Writer
Tuesday, April 15, 2008

Bipartisan groups in Congress are pressing to place new controls on the FBI's ability to demand troves of sensitive personal information from telephone providers and credit card companies, over the opposition of agency officials who say they deserve more time to clean up past abuses.

Proposals to rein in the use of secret "national security letters" will be discussed over the next week at hearings in both chambers. The hearings stem from disclosures that the FBI had clandestinely gathered telephone, e-mail and financial records "sought for" or "relevant to" terrorism or intelligence activities without following appropriate procedures.

The Justice Department's inspector general issued reports in 2007 and earlier this year citing repeated breaches. They included shoddy FBI paperwork, improper claims about nonexistent emergencies and an insufficient link between the data requests and ongoing national security probes.

"It is clear that the NSL authority is too overbroad and operates unchecked," said Rep. Jerrold Nadler (D-N.Y.), a co-sponsor of the House bill. "We must give our law enforcement the tools they need to protect us, but any such powers must be consistent with the rule of law."

The House bill, sponsored by Nadler, Rep. Bill Delahunt (D-Mass.), Rep. Jeff Flake (R-Ariz.) and Rep. Ron Paul (R-Tex.), would tighten the language governing when national security letters could be used, by requiring that they clearly pertain to investigations of a foreign power or an agent instead of just being considered "relevant" to such investigations.

The House bill would also force the FBI to destroy information that had been illegally obtained -- something that existing rules do not require -- and it would allow the recipient of a letter to file a civil lawsuit if the missive is found to be illegal or without sufficient factual justification.

A Senate bill, sponsored by Russell Feingold (D-Wis.), Richard J. Durbin (D-Ill.), Lisa Murkowski (R-Alaska) and John E. Sununu (R-N.H.), would require the FBI to track its use of the letters more carefully and would narrow the types of records that can be obtained with a letter, and therefore without judicial approval, to those that are least sensitive.

Three supporters of the legislation are slated to appear at Nadler's hearing this afternoon: David Kris, an expert in national security law who worked in the Clinton and Bush administrations; Bruce Fein, a Justice Department official in the Reagan era; and Jameel Jaffer, director of the national security project at the American Civil Liberties Union.

"It's a bipartisan issue," Fein said in an interview. "It's not trusting the goodwill or the angelic disposition of the government to preserve our rights. . . . We ought to learn from our experience since 9/11 and restore checks and balances. Congress can't just rely on the FBI to fix the problem."

Officials at the Justice Department's National Security Division and the FBI have acknowledged problems with the past use of national security letters. But they say they have stepped up training programs, instituted internal reviews, and developed new databases to improve the accuracy of internal tracking and accounting.

Valerie E. Caproni, the FBI's top lawyer, is expected to testify today that the bureau needs more time to overhaul its internal systems, according to a government source familiar with her position who was not authorized to speak in advance of the hearing.

"We are committed to using [the letters] in ways that maximize their national security value while providing the highest level of privacy and protection," FBI Assistant Director John Miller said.

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