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FBI Found to Misuse Security
Letters
2003-06 Audit Cites Probes of Citizens
By Dan Eggen
Washington Post Staff Writer
14/03/08 "
Washington Post" -- -- The FBI has increasingly used
administrative orders to obtain the personal records of U.S.
citizens rather than foreigners implicated in terrorism or
counterintelligence investigations, and at least once it relied
on such orders to obtain records that a special
intelligence-gathering court had deemed protected by the First
Amendment, according to two government audits released
yesterday.
The episode was outlined in a Justice Department report that
concluded the FBI had abused its intelligence-gathering
privileges by issuing inadequately documented "national security
letters" from 2003 to 2006, after which changes were put in
place that the report called sound.
A report a year ago by the Justice Department's inspector
general disclosed that abuses involving national security
letters had occurred from 2003 through 2005 and helped provoke
the changes. But the report makes it clear that the abuses
persisted in 2006 and disclosed that 60 percent of the nearly
50,000 security letters issued that year by the FBI targeted
Americans.
Because U.S. citizens enjoy constitutional protections against
unreasonable searches and seizures, judicial warrants are
ordinarily required for government surveillance. But national
security letters are approved only by FBI officials and are not
subject to judicial approval; they routinely demand certain
types of personal data, such as telephone, e-mail and financial
records, while barring the recipient from disclosing that the
information was requested or supplied.
According to the findings by Justice Department Inspector
General Glenn A. Fine, the FBI tried to work around the Foreign
Intelligence Surveillance Court, which oversees clandestine
spying in the United States, after it twice rejected an FBI
request in 2006 to obtain certain records. The court had
concluded "the 'facts' were too thin" and the "request
implicated the target's First Amendment rights," the report
said.
But the FBI went ahead and got the records anyway by using a
national security letter. The FBI's general counsel, Valerie E.
Caproni, told investigators it was appropriate to issue the
letters in such cases because she disagreed with the court's
conclusions.
In total, Fine said, the FBI issued almost 200,000 national
security letters from 2003 through 2006, and they were used in a
third of all FBI national security and computer probes during
that time. Fine said his investigators have identified hundreds
of possible violations of laws or internal guidelines in the use
of the letters, including cases in which FBI agents made
improper requests, collected more data than they were allowed
to, or did not have proper authorization to proceed with the
case.
Fine also pointed to the FBI's "troubling" use of the letters to
obtain vast quantities of telephone numbers or other records
with a single request. Investigators identified 11 such cases,
involving information related to about 4,000 phone numbers, that
did not comply with USA Patriot Act requirements or that
violated FBI guidelines.
The latest findings reignited long-standing criticism from
Democrats and civil liberties groups, who said the FBI's
repeated misuse of its information-gathering powers underscores
the need for greater oversight by Congress and the courts.
"The fact that these are being used against U.S. citizens, and
being used so aggressively, should call into question the claim
that these powers are about terrorists and not just about
collecting information on all kinds of people," said Jameel
Jaffer, national security director at the American Civil
Liberties Union. "They're basically using national security
letters to evade legal requirements that would be enforced if
there were judicial oversight."
Justice spokesman Dean Boyd said in a statement that Fine's
report "should come as no surprise" because the survey ended in
2006, before the FBI introduced procedural changes to better
control and keep track of requests for the security letters.
FBI Assistant Director John Miller said a new automated system
will keep better tabs on the letters, and they are now reviewed
by a lawyer before they are sent to a telephone company,
Internet service provider or other target. "We are committed to
using them in ways that maximize their national security value
while providing the highest level of privacy and protection of
the civil liberties of those we are sworn to protect," Miller
said.
Fine said that FBI employees "self-reported" 84 possible
violations of laws or guidelines in the use of the letters, in
2006, which "was significantly higher than the number of
reported violations in prior years." But he noted that his
office already had begun its initial investigation into the
letters by then, which might have contributed to the increase.
About a quarter of the reported incidents were because of
mistakes made by telephone or Internet providers, including some
in which they provided either the wrong information or disclosed
more than the FBI requested. But many of those cases should have
been caught by the FBI earlier, Fine said.
© 2008 The Washington Post Company
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