Senate Judiciary Panel
Probes FBI’s Misuse Of PATRIOT Act Powers

…Inspector General Testifies About ‘Incredibly Sloppy’ Practice
That Repeatedly Invaded Privacy Of Americans

WASHINGTON (Wednesday, March 21) – The Senate Judiciary Committee Wednesday held a hearing, "Misuse of Patriot Act Powers,” examining the recent report by the Department of Justice Inspector General’s office that found widespread misuse of PATRIOT Act powers by the Federal Bureau of Investigation.

The Inspector General’s report found instances of improper use of National Security Letters (NSLs) in more than one in five of the files reviewed, suggesting the potential for thousands of violations among the tens of thousands of NSLs the FBI issues each year.  NSLs allow the FBI to request sensitive personal information – phone toll records, email transaction records, bank records, credit records, and other related records – without a judge, a grand jury or even a prosecutor evaluating the requests.

“This report of abuses on the NSL authority, along with the abuses we have seen in the mass firings of U.S. attorneys, and the Justice Department’s failure to provide the data-mining report that is now past due, reinforce my concerns about this Administration’s corrosive unilateralism and deep aversion to any checks and balances,” said Sen. Patrick Leahy D-Vt., chairman of the committee.

Leahy, working with then-Chairman Arlen Specter (R-Pa.), pushed during the process of reauthorizing the PATRIOT Act the “sunshine” provisions that mandated the audit and report by the Justice Department’s Inspector General of the FBI’s use of National Security Letters. 

While being questioned by Leahy at the hearing, Inspector General Fine described the FBI’s practice as “incredibly sloppy.”   

Statement of Senator Patrick Leahy,
Chairman, Committee on the Judiciary
Hearing on "Misuse of Patriot Act Powers”
March 21, 2007

I welcome Inspector General Fine to the Committee’s hearing today.  I am grateful for the important work that his office has done in shining light on significant abuses of the broad powers Congress gave the FBI to obtain information through National Security Letters.

Six years ago, in the wake of the September 11 attacks, I worked hard with Democrats and Republicans to ensure that the government had the powers it needed to protect us from terrorism.  I also knew that it was vital to include safeguards and checks and balances to be sure that the government did not abuse its powers, violate civil liberties, or needlessly invade the privacy of Americans.

In the years since, the government’s powers have increased steadily.  One safeguard that I fought hard to keep in the 2005 PATRIOT Act reauthorization was the mandate for this review by the Department of Justice Inspector General of the FBI’s use of National Security Letters.  Some of us wanted more safeguards, but this is the best we could do and the most we could get.  Keeping the PATRIOT Act’s sunset provisions and adding new “sunshine” provisions to improve oversight and accountability were among my highest priorities during that reauthorization process.  Working with then-Chairman Specter, we insisted on this Inspector General review. The Inspector General issued the report earlier this month.

I am deeply troubled by the results of this report, but I am glad that we insisted on it.  We would not know of the egregious errors and violations that Inspector General Fine documented – extending back years-- if not for these sunshine requirements we were able to put into the 2005 rewrite of the PATRIOT Act. These abuses might be continuing were it not for our insistence on reporting and oversight. 

The Judiciary Committee must now continue its oversight we initiated until we get to the bottom of what went wrong and what needs to be done to prevent these abuses from recurring.  Along with this hearing, the Committee has scheduled an oversight hearing with the FBI Director for March 27, and we are planning a hearing with the Attorney General in April.  We will hold whatever other hearings we need to fulfill our oversight role and shut down abuses and invasions of privacy.

I have long been troubled by the scope of National Security Letters (NSLs) and the lack of accountability for their use.  As the Inspector General’s report makes clear, these concerns were well-founded.  NSLs allow the FBI to request sensitive personal information – phone toll records, email transaction records, bank records, credit records, and other related records – without a judge, a grand jury, or even a prosecutor evaluating the requests.  In the PATRIOT Act and other recent legislation, Congress expanded the scope of information the FBI could request with NSLs and reduced the procedural and substantive requirements for the FBI to use them.  In light of this report, we need to consider whether Congress went too far.

The Inspector General found instances of improper use of National Security Letters in more than one in five of the files reviewed, suggesting that there could be thousands of violations among the tens of thousands of NSLs the FBI sends each year.  In some cases, the requests were not appropriately authorized or did not go through proper procedures.  In other cases, more disturbingly, the FBI requested and got information it was not entitled to under the relevant laws.  The report found widespread “confusion,” frequent failures to check whether agents were requesting the information they were approved to request, and failures to review the information when it was received.  In some cases, the FBI failed to connect the request with any ongoing investigation in the NSL, so it is impossible now to know whether the FBI was entitled to the information received or not.

Amazingly, the Inspector General’s report found that, of the more than 143,000 National Security Letter requests the FBI issued from 2003 through 2005, FBI field divisions self-reported only 26 possible violations of law and policy.  The Inspector General found almost as many violations in his independent review of only 77 case files from that period.  None of the errors the Inspector General found had been self-reported by the FBI.  The FBI massively failed to find or to report its own mistakes and abuses connected with NSLs, and documentation was incomplete in 60 percent of the files the Inspector General reviewed.

I was particularly distressed by the Inspector General’s findings about the FBI’s use of so-called “exigent letters.”  The FBI sent these letters, which are not authorized in any statute, in at least 739 instances to telephone companies in place of NSLs or grand jury subpoenas.  Essentially, the FBI told these companies:  This is an emergency, so give us these records voluntarily, without the regular legal process.  Each letter went on to say, “Subpoenas requesting this information have been submitted to the U.S. Attorney’s Office who will process and serve them formally.”  Only, in reality, no subpoena had been submitted to any U.S. Attorney’s Office in any of the cases the Inspector General examined, and often there was not even any emergency.  Sometimes the letters were followed up with an NSL, sometimes they weren’t, and sometimes the FBI did not know one way or the other.  The letters were often sent by FBI personnel who were not authorized to sign NSLs.

These abuses are unacceptable.  We cannot have the FBI requesting information under false pretenses and proceeding with total disregard for the relevant laws.  That this lawless technique continued for years in hundreds of instances is alarming.  That it continued into 2006 despite the FBI’s Office of General Counsel becoming aware of it as early as 2004 is astonishing.  According to the Inspector General’s Report, FBI attorneys raised concerns about the practice, suggested ways of modifying it, but never once instructed agents to stop.

Senator Grassley, who has long bemoaned abuses and inefficiencies at the FBI and championed whistleblowers there, wrote letters about this issue both to Inspector General Fine and to FBI Director Mueller.  He specifically focused on Bassem Youssef, the current Chief of the unit that produced many if not all of the “exigent letters.”  Senator Grassley has highlighted Mr. Youssef’s whistle blower role in the past, and Mr. Youssef has said to the press recently that he raised concerns about exigent letters in early 2005, and senior officials were unreceptive.  I know that Senator Grassley’s inquiries will help our understanding of this issue.

I want to make clear that this is not a matter of technical violations.  The FBI obtained private and personal information about Americans and others including phone numbers, bank records, and credit information.  The FBI apparently got this information without following the proper safeguards, and at times agents requested and received personal information to which they were not entitled.  This information was then placed in databases and distributed within the FBI and beyond.  The Inspector General’s report makes clear that the FBI’s record-keeping in connection with NSLs was so poor that we cannot even determine what has happened to any improperly obtained information.  It may be impossible to put that genie back into the bottle.  This is not acceptable.  We cannot have unwarranted and unauthorized invasions of Americans’ privacy.

I hope that Inspector General Fine, and next week Director Mueller, will help us to understand the scope of the problem.  Then we must determine what to do to make sure that the FBI does not improperly and illegally obtain information about Americans.  Trusting the FBI to fix the problem and proceed properly from now on is not an option.  We tried that already.  That is why we are holding this hearing.

Real oversight will be a start.  The oversight that we managed to get into the PATRIOT Act reauthorization led to this report and this hearing.  We look forward to the Inspector General’s follow up report, due at the end of this year.  We have already heard that the FBI, in 2006 -- after the period considered in the Inspector General’s report -- attempted to cover for its improper “exigent letters” with “blanket” NSLs, each covering multiple prior requests and multiple investigations.  This is another violation of the law and only compounded the problem.  I am eager to learn more about that new violation once the Inspector General has had a chance to examine it.  We will press the FBI for more information, and we will consider what future audits and reviews need to be legislated.

We will need to explore whether the law should require higher level review and approval, perhaps from FBI headquarters or from Department of Justice attorneys, before NSLs can be sent out.  We should come up with an appropriate and regulated procedure for obtaining information in an emergency, and make clear that false and inaccurate “exigent letters” are not acceptable.  We should look at how to ensure that records are kept in a way that NSLs can be connected to investigations and the records they generate can be traced.  Those whose records are collected improperly should be able to rest assured that the problem will be corrected and the records destroyed.  Finally, we should think about whether we need to reexamine the PATRIOT Act’s expansion of the types of information that can be obtained through NSLs and the circumstances where they can be used.  I look forward to the insights of Senator Feingold, who has been a leader on this issue.

I worked hard with Senators Specter, Feingold, Durbin and others to amend and reauthorize the PATRIOT Act in 2005.  This Committee reported a bipartisan bill that the Senate passed.  Regrettably the conference with the House was hijacked by the Administration. 

I did not vote for the final version of the Act that came out of that conference.  I did not trust this Administration to implement it fairly or honor its safeguards.  I noted at the time, this is an Administration “that does not believe in checks and balances and prefers to do everything in secret.”  I had seen enough of the presidential signing statements and practices of this Administration to be concerned.  In voting against the PATRIOT Act reauthorization, I explained: “Confronted with this Administration’s claims of inherent and unchecked powers, I do not believe that the restraints we have been able to include in this reauthorization of the PATRIOT Act are sufficient.” 

This report of abuses on the National Security Letter authority, along with the abuses we have seen in the mass firings of U.S. attorneys, and the Justice Department’s failure to provide the data-mining report that is now past due, reinforce those concerns. 

We must combat terrorism without sacrificing individual liberties and privacy. 

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