Lawmakers vow Hearings on FBI Errors
By John Solomon
Washington Post Staff Writer
Friday, March 9, 2007; 11:52 AM
Members of Congress vowed today to conduct investigative hearings -- and consider reining in parts of the Patriot Act -- following revelations of pervasive problems in the FBI's use of national security letters to secretly obtain telephone, e-mail and financial records in terrorism cases.
Members of the House and Senate judiciary and intelligence committees were being briefed today on a Justice Department inspector general probe that found the FBI mishandled one of its potent anti-terrorism tools.
The problems included failing to provide proper documentation to justify the use of the letters and significantly underreporting to Congress the number of times the special authority was used, The Washington Post reported in today's editions. The reports to Congress are required by law.
The Post article was based on interviews with officials who had access to the report, a classified version of which was presented today to the judiciary and intelligence committees. It said the violations were not deliberate, but could be widespread.
The report discloses that on 739 occasions, the FBI obtained telephone toll or subscriber records without first having a required national security letter or grand jury subpoena, according to a declassified version. Instead, the report says, the FBI used a tactic called "exigent letters" that claimed there were emergencies that warranted getting the information immediately. Many times, no such emergencies existed, the inspector general found.
"On over 700 occasions the FBI obtained telephone billing records or subscriber information from three telephone companies without first issuing national security letters or grand jury subpoenas," the report says. It notes that many times the FBI supervisors who approved such requests did not even have the legal authority to sign national security letters.
The report also details how, after getting its sweeping new anti-terrorism powers under the Patriot Act, the FBI did not put into place basic training and record-keeping procedures to ensure civil liberties were protected. Such problems kept the FBI from giving Congress legally required accurate numbers on the times they used national security letters, the investigation found.
"During the time period covered by this review, the FBI had no policy or directive requiring the retention of signed copies of the national security letters or any requirement to upload national security letters to the FBI's case management system," the report says.
Likewise, the bureau failed to give its agents "comprehensive guidance" on the types of legal violations it might have to report to intelligence authorities.
The top Republican on the Senate Judiciary Committee, Sen. Arlen Specter (Pa.), raised the possibility that Congress might shrink some of the FBI's antiterrorism powers.
"I am very concerned that the FBI has so badly misused national security letters," Specter said in a statement. "When we reauthorized the Patriot Act last year, we did so on the basis that there would be strict compliance with the limitations included in the statute."
Specter said the committee "will now have to undertake comprehensive oversight on this important matter and perhaps act to limit the FBI's power by revising the Patriot Act."
The news that the FBI failed to follow its own basic rules and policies designed to protect civil liberties came at the end of a difficult political week for the Bush administration. The last several days have also seen the conviction of Vice President Cheney's former chief of staff in the CIA leak case, growing controversy over the firings of federal prosecutors and escalating violence in Iraq.
Democrats quickly sought to capitalize.
Senate Majority Whip Richard J. Durbin (D-Ill.), who had been pressing for a review of national security letters since 2005, said the report "confirms the American people's worst fears about the Patriot Act.
"It appears that the administration has used these powers without even the most basic regard for privacy of innocent Americans," Durbin said in a statement.
He called for "reasonable reforms" to the Patriot Act that have been proposed, but not acted on, in the past.
"We should give the government all the tools it needs to fight terrorism," Durbin said. "However, I continue to believe that the Patriot Act must include reasonable checks and balances to protect the constitutional rights of all Americans."
Sen. Charles E. Schumer (D-N.Y.), like Specter a member of the Senate Judiciary Committee, said the problems identified by the inspector general were a "profoundly disturbing breach of public trust."
Defense Secretary Robert Gates has told a number of senior national security officials -- current and former -- that he is shutting down (or at least significantly shrinking) the Rumsfeld-Cambone-Feith-Boykin intelligence operation.
Rumsfeld encouraged a massive expansion of the Department of Defense's intelligence operations just at the time that the 9/11 Commission, Congressional enabling legislation, and the White House had worked together to reorganize the vast bulk of America's intelligence machine under the Director of National Intelligence -- who was then John Negroponte.
Rumsfeld's colonization of much of the intelligence operations of government was in direct defiance of the legal operational and budgetary authority that the DNI position theoretically held.
Gates' move is a sign that he is making what are possibly an important set of moves to try and get the government's national security decision-making process back in better shape. DoD's misbehavior in intelligence has generated constant battles and significant mistrust among key players in defense policy.
As this writer has reported before, there was significant rivalry between Rumsfeld and Cambone on one side and then Deputy DNI Michael Hayden and DNI John Negroponte on another. Gates' intentions on getting his operations back under the operational management of current DNI Mike McConnell shows that this institutional rivalry is mostly over.
More important though was that the Rumsfeld-Cambone-Feith-Boykin intel machine included the staff of Vice President Cheney who were key beneficiaries of intel activities and information passed on to the Vice President's Office by DoD. Instructions also flowed from Cheney's office to DoD regarding intelligence initiatives and work that should be done. This entire interaction existed beyond what was legally prescribed and appropriate between the White House and this subcabinet intelligence activity controlled by Rumsfeld and his minions.
Bob Gates is about to shut down a signficant chunk of Vice President Cheney's intelligence eyes and ears -- and to some degree, an inappropriate ability to help drive covert actions.
National Journal's Shane Harris has a great article on this out today:
Defense Secretary Robert Gates is considering a plan to curtail the Pentagon's clandestine spying activities, which were expanded by his predecessor, Donald Rumsfeld, after the 9/11 attacks. The undercover work allowed military personnel to collect intelligence about terrorists and to recruit spies in foreign countries independently of the CIA and without much congressional oversight.
Former military and intelligence officials, including those involved in an ongoing and largely informal debate about the military's forays into espionage, said that Gates, a former CIA director, is likely to "roll back" several of Rumsfeld's controversial initiatives. This could include changing the mission of the Pentagon's Strategic Support Branch, an intelligence-gathering unit comprising Special Forces, military linguists, and interrogators that Rumsfeld set up to report directly to him. The unit's teams work in many of the same countries where CIA case officers are trying to recruit spies, and the military and civilian sides have clashed as a result. CIA officers serving abroad have been roiled by what they see as the Pentagon's encroachment on their dominance in the world of human intelligence-gathering.
A former senior intelligence official who knows Gates said that the secretary wants to "dismantle" many of the intelligence programs launched by Rumsfeld and his top lieutenants, Stephen Cambone, the former undersecretary for intelligence, and Douglas Feith, who was Rumsfeld's policy chief. The former official added that the Defense Intelligence Agency, which has also expanded its human spying efforts, could be returned to a more analytical role.
Many are still trying to assess what kind of impact Bob Gates will have on America's wrong-headed military course -- and whether he will be able to bring some maturity and realism to a White House decision-making that has been dominated by Vice President Cheney and his followers.
I think that this is a subtle but important first step in changing the "structural dimensions" of Cheney's influence.
FBI agents contracted with phone companies to improperly obtain customer records, saying that subpoenas would later be issued in connection with an underlying investigation. But in a random examination of such "exigent letters," not one subpoena was sent, and in many cases the requests were not tied to any pending FBI investigations, in clear violation of the law.
Other details of the DOJ Report highlighted by the ACLU include:
The FBI issued NSLs even where no underlying investigation had been approved.
The FBI obtained more information from recipients than was requested.
The FBI obtained information about telephone numbers that did not belong to the target of the NSLs.
The FBI's abuse of NSLs go beyond phone and email records; in some instances included medical records and educational records.
The FBI issued an NSL to a North Carolina university that sought applications for admission, housing information, emergency contacts, and campus health records.
The FBI has no uniform system for tracking responses to National Security Letters, either manually or electronically.
The FBI is sharing information derived from NSL with numerous U.S. intelligence agencies and even foreign governments.
The FBI "significantly understated" NSL requests reported to Congress in 2003, 2004, and 2005.
Some NSL recipients erroneously provided prohibited content to the FBI, including voice messages, emails, and images.
One part of the ACLU report that was a bit of a surprise was the number of NSL requests (demands) issued by the FBI...
(Before the PATRIOT Act of 2001)
2000 ... 8,500
(After the PATRIOT Act of 2001)
2003 ... 39,000
2004 ... 56,000
2005 ... 47,000
But as pointed out in the DOJ Report, these are understated numbers. The real numbers are higher. How much higher is unknown at this time.
You would think that by having an average of more than 47,000 terrorism inquiries every year that there must be a whole lot of terrorist activities going on in this country. Somehow, I just do not believe that these activities are all related to terrorism.
ACLU Executive Director Anthony D. Romero said:
... It simply is not credible for the FBI to claim that these unauthorized and illegal fishing expeditions were the result of human error or outmoded computer systems ... It seems that every time the American people entrust the Bush administration with some new power, it not only abuses that power but also seizes additional powers without our knowledge.
The FBI had no policy or directive requiring the retention of signed copies of national security letters or any requirement to upload NSLs into various FBI case management systems.
The FBI has "no uniform system for tracking responses to national security letters, either manually or electronically."
The FBI keeps NSL-derived information in various databases - including databases that are accessed by nearly 12,000 users,
The FBI is using NSLs to establish evidence to support wiretap, electronic surveillance and physical search warrants.
The FBI disseminated information derived from NSLs to a variety of federal, state, and local law enforcement agencies, including the National Security Agency (NSA), the CIA, and Joint Terrorism Task Forces (JTTFs).
The FBI is even sharing information derived from NSLs with foreign governments.
FBI policies do not require the purging of information derived fro NSLs in FBI databases, regardless of the outcome of the investigation.
The IG found approximately 17% more NSLs in the case files than were recorded in the database.
The IG found 22% more NSL requests in the case files than were recorded in the database.
The IG estimates that about 6% of NSL requests issued by the FBI from 2003-2005 were missing from the database.
Number, Content, and Targets of Requests
The IG found that from 2003 to 2005, the FBI issued a total of 143,074 NSL requests.
The "overwhelming majority" of these NSL requests sought the most sensitive information - telephone toll billing records, telephone and email subscriber information, or electronic communication transactional records.
The percentage of NSL requests generated from investigations of U.S. citizens and legal permanent residents increased from about 39% of all NSL requests in 2003 to about 53 percent of all NSL requests in 2005.
NSLs as Fishing Expedition
The IG reported that the FBI's analysis of personal information gleaned through NSLs is used to assist in the identification the NSL subject's family members, associates, living arrangements and contacts.
NSLs require only a threshold showing of "relevance to an authorized investigation." As a result, the FBI uses NSLs to obtain personal information "two or three steps removed" from the target of any investigation.
The FBI maintains no information on whether the target of the NSL is the subject of an underlying investigation or another individual.
Other parts in the ACLU Analysis, omitted here, include: Violations and Misuse of the NSL Power, Lack of Internal and Statutory Guidance and Exigent Letters.
In another quote by the ACLU Executive Director Anthony D. Romero, he said:
The Inspector General's report should come as no surprise ... And it should come as no surprise that Attorney General Gonzales is eager to blame the FBI, or that the FBI engaged in these abuses. The Attorney General and the FBI are part of the problem and they cannot be trusted to be part of the solution. Congress must act immediately to repeal these dangerous Patriot Act provisions.
Mr. Comey's Tale
A standoff at a hospital bedside speaks volumes about Attorney General Gonzales.
Wednesday, May 16, 2007; A14
JAMES B. COMEY, the straight-as-an-arrow former No. 2 official at the Justice Department, yesterday offered the Senate Judiciary Committee an account of Bush administration lawlessness so shocking it would have been unbelievable coming from a less reputable source. The episode involved a 2004 nighttime visit to the hospital room of then-Attorney General John D. Ashcroft by Alberto Gonzales, then the White House counsel, and Andrew H. Card Jr., then the White House chief of staff. Only the broadest outlines of this visit were previously known: that Mr. Comey, who was acting as attorney general during Mr. Ashcroft's illness, had refused to recertify the legality of the administration's warrantless wiretapping program; that Mr. Gonzales and Mr. Card had tried to do an end-run around Mr. Comey; that Mr. Ashcroft had rebuffed them.
Mr. Comey's vivid depiction, worthy of a Hollywood script, showed the lengths to which the administration and the man who is now attorney general were willing to go to pursue the surveillance program. First, they tried to coerce a man in intensive care -- a man so sick he had transferred the reins of power to Mr. Comey -- to grant them legal approval. Having failed, they were willing to defy the conclusions of the nation's chief law enforcement officer and pursue the surveillance without Justice's authorization. Only in the face of the prospect of mass resignations -- Mr. Comey, FBI Director Robert S. Mueller III and most likely Mr. Ashcroft himself -- did the president back down.
As Mr. Comey testified, "I couldn't stay, if the administration was going to engage in conduct that the Department of Justice had said had no legal basis." The crisis was averted only when, the morning after the program was reauthorized without Justice's approval, President Bush agreed to fix whatever problem Justice had with it (the details remain classified). "We had the president's direction to do . . . what the Justice Department believed was necessary to put this matter on a footing where we could certify to its legality," Mr. Comey said.
The dramatic details should not obscure the bottom line: the administration's alarming willingness, championed by, among others, Vice President Cheney and his counsel, David Addington, to ignore its own lawyers. Remember, this was a Justice Department that had embraced an expansive view of the president's inherent constitutional powers, allowing the administration to dispense with following the Foreign Intelligence Surveillance Act. Justice's conclusions are supposed to be the final word in the executive branch about what is lawful or not, and the administration has emphasized since the warrantless wiretapping story broke that it was being done under the department's supervision.
Now, it emerges, they were willing to override Justice if need be. That Mr. Gonzales is now in charge of the department he tried to steamroll may be most disturbing of all.
Judge orders domestic surveillance docs public."Just one day after a news that an internal audit found that FBI agents abused a Patriot Act power more than 1000 times, a federal judge ordered the agency Friday to begin turning over thousands of pages of documents related to the agency's use of a powerful, but extremely secretive investigative tool that can pry into telephone and internet records."
The April request from the Electronic Frontier Foundation asked the FBI to turn over documents related to its misuse of National Security Letters, self-issued subpoenas that don't need a judge's approval and which can get financial, phone and internet records. Recipients of the letters are forbidden by law from ever telling anyone other than their lawyer that they received the request. Though initially warned initially to use this power sparingly, FBI agents issued more than 47,000 in 2005, more than half of which targeted Americans. Information obtained from the requests, which need only be certified by the agency to be "relevant" to an investigation, are dumped into a data-mining warehouse for perpetuity.