WASHINGTON – A Justice Department investigation has found pervasive errors in the FBI’s use of its power to secretly demand telephone, e-mail and financial records in national security cases, officials with access to the report said Thursday.
The inspector general’s audit, mandated by Congress over Bush administration objections, found that 22 of the errors were possible breaches of internal FBI and Justice Department regulations – some of which were potential violations of law – in a sampling of 293 “national security letters.” The letters were used by the FBI to obtain the personal records of U.S. residents or visitors between 2003 and 2005. The FBI identified 26 potential violations in other cases.
Officials said they could not be sure of the scope of the violations but suggested they could be more widespread, though not deliberate. In nearly a quarter of the case files Inspector General Glenn Fine reviewed, he found previously unreported potential violations.
The use of national security letters has grown exponentially since the Sept. 11, 2001, attacks. In 2005 alone, the audit found, the FBI issued more than 19,000 such letters, amounting to 47,000 separate requests for information.
The letters enable an FBI field office to compel the release of private information without the authority of a grand jury or judge. The USA Patriot Act, enacted after the 2001 attacks, eliminated the requirement that the FBI show “specific and articulable” reasons to believe that the records it demands belong to a foreign intelligence agent or terrorist.
That law, and Bush administration guidelines for its use, transformed national security letters by permitting clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies.
Now the bureau needs only to certify that the records are “sought for” or “relevant to” an investigation “to protect against international terrorism or clandestine intelligence activities.”
According to three officials with access to the report, Fine said the possible violations he discovered did not “manifest deliberate attempts to circumvent statutory limitations or departmental policies.”
But Fine found that FBI agents used national security letters without citing an authorized investigation, claimed “exigent” circumstances that did not exist in demanding information and did not have adequate documentation to justify the issuance of letters.
In at least two cases, the officials said, Fine found that the FBI obtained full credit reports using a national security letter that could lawfully be employed only to obtain summary information. In an unknown number of other cases, third parties such as telephone companies, banks and Internet providers responded to national security letters with detailed personal information about customers that the letters do not permit to be released. The FBI “sequestered” that information, a law enforcement official said Thursday night, but did not destroy it.
Alan Raul, vice chairman of the White House Privacy and Civil Liberties Oversight Board, said in an interview that the Bush administration has asked the board to review and recommend changes in the FBI’s use of national security letters.
“The processes seem to be seriously in need of tune-up,” Raul said. “We hope to play a role in helping the FBI get to where it knows it needs to be.”
Fine’s audit, which was limited to 77 case files in four FBI field offices, found that those offices did not even generate accurate counts of the national security letters they issued, omitting about one in five letters from the reports they sent to headquarters in Washington. Those inaccurate numbers, in turn, were used as the basis for required reports to Congress.
Officials said they believe the 48 known problems may be the tip of the iceberg in an internal oversight system that one of them described as “shoddy.”
A classified version of the report is to be presented to the Judiciary and intelligence committees today. But senior officials, speaking with permission on the condition that they not be identified, said the Bush administration has already responded vigorously to the audit’s findings.