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Justice Department Audit Reveals FBI Misused Patriot Act

March 9, 2007 at 6:05 PM EDT
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RAY SUAREZ: FBI Director Robert Mueller’s news conference followed this morning’s release of a Justice Department audit revealing the bureau’s abuse of the USA Patriot Act.

ROBERT MUELLER, FBI Director: I’m particularly concerned about the findings in the report that indicate that we did not have appropriate policies in place. And in other areas where we did have appropriate policies, we did not adhere to them in using this important tool.

RAY SUAREZ: The tool at issue is the national security letter. It’s been used for more than three decades by the FBI to obtain sensitive information about businesses and individuals.

Approved by Congress after the 9/11 attacks, the USA Patriot Act extended the bureau’s access to telephone, e-mail, library and financial records in suspected terrorism investigations without court approval. More than 150,000 national security letters have been issued over the last three years, compared with just 8,000 the year before 9/11.

Today, Director Mueller underscored how important the Patriot Act and the national security letters in particular can be to the war on terror.

ROBERT MUELLER: As a reminder, national security letters enable us, the FBI, to obtain certain types of transactional information, not content of conversations, but items such as telephone toll records, subscriber information, and the like. I’ll say that these pieces of information are absolutely essential, and they’re critical building blocks in our counterterrorism and counterintelligence investigations.

RAY SUAREZ: The inspector general’s 126-page audit found: the FBI underreported to Congress the number of national security letters issued over the past three years by some 20 percent; the bureau failed to accurately report misuse of its authority and failed to properly destroy any unauthorized information collected; and the FBI improperly obtained telephone records using a tactic called “exigent letters,” claiming an emergency in non-emergency situations.

Director Mueller said the bureau had already taken steps to correct the mistakes made, but added…

ROBERT MUELLER: The inspector general indicated that his review did not reveal intentional violations of national security letter authorities, A.G. guidelines, or internal FBI policy.

RAY SUAREZ: On Capitol Hill, however, members of Congress from both parties promised to investigate the matter themselves. New York Democrat Chuck Schumer, a member the Senate Judiciary Committee that oversees the bureau, called the reported findings “a profoundly disturbing breach of public trust.”

SEN. CHUCK SCHUMER (D), New York: The number of letters that were used is way beyond what anyone imagined. They didn’t comply with the most meager and rudimentary reporting requirements.

RAY SUAREZ: The committee’s top Republican, Arlen Specter of Pennsylvania, was disturbed by the report, as well.

SEN. ARLEN SPECTER (R), Pennsylvania: There had to be checks, and the FBI has not followed its own rules.

National security letters

Rep. James Sensenbrenner
R-Wis.
There's something seriously wrong with the internal management of the Justice Department, and that better be fixed, because if it isn't, the support for the internal part of our war against terrorism is going to evaporate rapidly.

RAY SUAREZ: Speaking at a Washington meeting of privacy experts, Attorney General Alberto Gonzales conceded his department needs to rebuild public confidence.

And for more on today's revelations, we're joined by two senior members of the House Judiciary Committee. Democrat Jerrold Nadler of New York is chairman of the Subcommittee on the Constitution, Civil Rights and Civil Liberties. And Republican James Sensenbrenner of Wisconsin is the former chairman of the Judiciary Committee and one of the authors of the Patriot Act.

And let me start with you, Representative Sensenbrenner. Perhaps you can remind us why these letters were proposed and authorized in the first place.

REP. JAMES SENSENBRENNER (R), Wisconsin: Well, national security letters were not a part of the original Patriot Act. We've had them around at least since 1986, when a bill sponsored by Senator Leahy establishing these letters become law.

What happened was is that, with the restrictions that were put on the Patriot Act, in terms of getting court approval for FISA warrants and other types of investigative tools, the Justice Department simply went to the NSLs, which are a form of administrative subpoena, and started issuing them right and left.

What I can say is that the Patriot Act reauthorization, which I sponsored and which was passed and signed into law in March of last year, put four important civil liberties requirements on the Patriot Act, including ways that somebody who got one of these could go to court and get them quashed, as well as authorizing the inspector general to do the audit which we found out about today.

I am shocked. I think that the Justice Department has overreached. There's something seriously wrong with the internal management of the Justice Department, and that better be fixed, because if it isn't, the support for the internal part of our war against terrorism is going to evaporate rapidly.

RAY SUAREZ: Before the audit was released, did you believe that the NSL system was operating properly?

REP. JAMES SENSENBRENNER: No, I didn't. And the four civil liberties requirements that we stuck in the Patriot Act reauthorization allowed people who received NSLs to at least get some judicial review, to consult with attorneys, to go to court to get them quashed, as well as to get a reviewing court to modify a national security letter. And those were not provisions of the law prior to March of last year.

'An abuse of the process'

Rep. Jerrold Nadler
D-N.Y.
I don't know that I accept anything at face value from the Bush administration, but it's quite possible that they were mistakes.

RAY SUAREZ: Representative Nadler, during the debate over the first version of the Patriot Act and over its reauthorization, were the various powers, defined for surveillance, investigative techniques, anticipated to cause the kind of problems Director Mueller talked about today?

REP. JERROLD NADLER (D), New York: Well, some of us did anticipate those problems. Among others, I voted against both the original Patriot Act and the Patriot Act reauthorization act last year.

Remember, the original Patriot Act was passed almost sight unseen. It was a 277-page draft that was drafted over a weekend and passed with an hour or two debate on the floor on Wednesday. And almost nobody, except the drafters, had had a chance to read it. So we were -- I mean, it was an abuse of the process. There were lots of things in the bill that no one had a chance to really understand.

But even the protections -- and last year's bill somewhat improved the national security letters, but this simply shows what happens, what almost inevitably happens, when you give an investigative agency the power to issue letters without any review by a judge and without any ability of the people who are really affected by it, because the national security letters, they go to your bank, or your travel agent, or your internet service provider to get the information about you.

You never know about it. You can't challenge it. You can depend on AOL to try and challenge it, but they're not likely to do that. There are going to be tremendous abuses.

RAY SUAREZ: Well, Representative Nadler, it sounds from what you're saying, as if you don't accept at face value the FBI director's assurance that these were, in many cases, mistakes.

REP. JERROLD NADLER: No, I do -- well, first of all, I don't know that I accept anything at face value from the Bush administration, but it's quite possible that they were mistakes.

What I'm saying is, if you don't have -- and this is one of the fundamental things that we sought, some of us a few years ago -- if you don't have judicial supervision, if you don't have an ability, especially when you're dealing with a third party, that the real person's privacy who's invaded doesn't even know about it, you have to have some judicial supervision for the agency, for the FBI to go to a judge and say, "This is why we need this. This is what makes this person a fair target for surveillance. This is why we suspect that he's a terrorist and that it's relevant to a terrorism investigation," and let a judge review that.

Prescriptions for reform

Rep. Jerrold Nadler
D-N.Y.
[T]his was exactly what was predictable, because before the Patriot Act, if the FBI wanted to get a national security letter, it had to say that it had specific and articulable facts connecting the records sought to a suspected terrorist.

RAY SUAREZ: Well, Representative Sensenbrenner, have the letters become just a simpler way, simpler than getting a warrant, simpler than getting authorization and oversight, to find out the things you want to find out?

REP. JAMES SENSENBRENNER: Of course they have. And that's why the number of letters that have been issued having gone from 8,000 to tens or maybe hundreds of thousands of national security letters.

Senator Specter and I, in drafting the Patriot Act and the reauthorization of it, both vigorously opposed giving the FBI administrative subpoena power. I believe very strongly that, if the FBI needs information, they ought to go to a judge and say that it's relevant to an investigation, rather than having a fishing expedition.

What happened was is, because we've had these letters for over 20 years, the restrictions we put on the warrants in both the Patriot Act and its reauthorization ended up having the FBI go the easy route, and that's why we've seen the number of national security letters be increased, I guess by a factor of 10 to 15, from what happened previously.

REP. JERROLD NADLER: But this was exactly what was predictable, because before the Patriot Act, if the FBI wanted to get a national security letter, it had to say that it had specific and articulable facts connecting the records sought to a suspected terrorist.

After the Patriot Act, all it had to say was this is relevant to an investigation. Almost anything can be said to be relevant to an investigation. In other words, you took all real, any meaningful restraint on the issuance of these letters away.

RAY SUAREZ: Well, how do you fix that? I will start with you, Representative Sensenbrenner and return to you, Congressman Nadler. How do you fix it, given the misgivings that you've just expressed about the law in its current form?

REP. JAMES SENSENBRENNER: Well, you know, first of all, we do give law enforcement in this country a lot of discretion. And that's been the way since the beginning of the republic. The FBI has very clearly abused its discretion, and in its abuse of the discretion, is going to end up bringing about a reaction by the Congress.

I think the use of NSLs is going to have to be restricted by statute. And very frankly, I think there ought to be some heads that roll here, and I'm not calling for the resignation of Director Mueller. But whoever was responsible for this incredibly sloppy administration is going to have to be called to account.

And, remember, we've had this following the ham-handed dismissal of seven United States attorneys and a raid on a congressional office that actually forced the president to intervene to curtail the activities of the Justice Department. And I can't remember if that's ever happened in history.

RAY SUAREZ: Well, Representative Nadler, earlier in the program, we heard Director Mueller call this an indispensable tool, something he absolutely needed and something that was working. Can you tailor a legislative fix that gives him what he needs but also answers your civil liberties concerns?

REP. JERROLD NADLER: I think you can. I think you do a couple of things.

First of all, you restore the pre-Patriot Act requirement to say that, if the FBI wants permission to look at your records, they should have to have a specific and articulable facts connecting you or some reason to believe that you're connected to terrorists. They should have to say that, not simply that it's relevant to an investigation.

Secondly, unless there's a really exigent emergency where time is of the essence, they should have to go to a judge and let him see or her see the specific and articulable facts.

Secondly, I would change -- now, the reauthorization act last year did allow the recipient to protest the order, but the conditions for that protest were made impossible, because whatever is said by the government are taken as dispositive and it's true, without giving the judge the ability to make a judgment on the evidence, and that should be changed.

Committee's role in reform

Rep. James Sensenbrenner
R-Wis.
[W]hile I think Director Mueller has good intentions, what the inspector general found has gone way, way over the line, and he's going to have to be accountable for it.

RAY SUAREZ: Representative Sensenbrenner, does an incident of this kind bring into doubt other aspects of the Patriot Act and perhaps open to further scrutiny other parts of that overall approach that have been controversial?

REP. JAMES SENSENBRENNER: During the five-plus years, from the time the first Patriot Act was passed and my leaving the chairmanship of the Judiciary Committee, the current chairman and then-Ranking Member John Conyers and I did very vigorous oversight over the Justice Department's activity.

We were somewhat hamstrung in dealing with the national security letter issue because, again, it wasn't a part of the Patriot Act, and it had been around since 1986. You know, now, obviously, we have to broaden our oversight activities in dealing with this, because of what the FBI itself has admitted has been a gross abuse of the process.

It seems to me that, if there's a gross abuse, the FBI ought to come up and say what they're going to do to stop it from happening again. And while I heard the director say he was sorry, I don't see any concrete steps to make sure that, six months from now, when the next inspector general's report is due, we're not going to be talking about the same problems.

RAY SUAREZ: Well, during his news conference, he did say that they have tightened internal procedures in order to make sure this kind of thing doesn't happen again. But that's not enough for you?

REP. JAMES SENSENBRENNER: No, it's not enough for me. You know, I guess the road to Hell is paved in good intentions. And while I think Director Mueller has good intentions, what the inspector general found has gone way, way over the line, and he's going to have to be accountable for it.

RAY SUAREZ: And, Congressman Nadler, you are a subcommittee chair. Will you be making this the subject of hearings?

REP. JERROLD NADLER: Well, there will be hearings in either the subcommittee or the full committee on this subject. And I think that Mr. Sensenbrenner's completely correct, that there will be a reaction, that there is going to be reaction that the law ought to be tightened.

Some of us were opposed to the law being as loose as it is, but the abuses that have happened here are not evidence that anybody is terribly evil. They are evidence that any bureaucracy must be restrained by law, and particularly by oversight by the judiciary.

RAY SUAREZ: Representative Nadler, Representative Sensenbrenner, gentlemen, thank you both.

REP. JERROLD NADLER: You're quite welcome.