David Johnston and Eric Lipton have a scoop in the New York Times about an upcoming report by the Justice Department’s Inspector General. It deals with the FBI’s use of ‘national security letters’. Apparently, the FBI has been issuing about 20,000 national security letters a year since the 9/11 attacks and the signing of the Patriot Act. To put the number 20,000 in perspective, that is 54 letters a day, 365 days a year. (They’ve got some busy secretaries over at the FBI).
The Justice Department’s inspector general has prepared a scathing report criticizing how the F.B.I. uses a form of administrative subpoena to obtain thousands of telephone, business and financial records without prior judicial approval.
The report, expected to be issued on Friday, says that the bureau lacks sufficient controls to make sure the subpoenas, which do not require a judge’s prior approval, are properly issued and that it does not follow even some of the rules it does have.
Under the USA Patriot Act, the bureau each year has issued more than 20,000 of the national security letters, as the demands for information are known. The report is said to conclude that the program lacks effective management, monitoring and reporting procedures, officials who have been briefed on its contents said.
Just to provide some more context here, I’ll quote some more of the article.
The use of national security letters since the September 2001 attacks has been a hotly debated domestic intelligence issue. They were once used only in espionage and terrorism cases, and then only against people suspected as agents of a foreign power.
With the passage of the Patriot Act, their use was greatly expanded and was allowed against Americans who were subjects of any investigation. The law also allowed other agencies like the Homeland Security Department to issue the letters.
The letters have proved contentious in part because unlike search warrants, they are issued without prior judicial approval and require only the approval of the agent in charge of a local F.B.I. office. A Supreme Court ruling in 2004 forced revisions of the Patriot Act to permit greater judicial review, without requiring advance authorization.
Back in November of 2005, Barton Gellman did a piece on these national security letters for the Washington Post.
Issued by FBI field supervisors, national security letters do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress. The executive branch maintains only statistics, which are incomplete and confined to classified reports. The Bush administration defeated legislation and a lawsuit to require a public accounting, and has offered no example in which the use of a national security letter helped disrupt a terrorist plot.
The burgeoning use of national security letters coincides with an unannounced decision to deposit all the information they yield into government data banks — and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for “state, local and tribal” governments and for “appropriate private sector entities,” which are not defined.
Some of these concerns were addressed after the 2004 Supreme Court ruling. For example, Congress must be briefed on the letters semi-annually, and the Department of Justice must release a non-classified accounting of the number of letters issued. In 2005 they claimed a total of 9,254. That’s quite a bit less than the 20,000 claimed in today’s New York Times article.
Perhaps the discrepancy has something to do with the ‘scathing’ tone of the Inspector General’s report. Since the report states that “the bureau lacks sufficient controls to make sure the subpoenas, which do not require a judge’s prior approval, are properly issued and that it does not follow even some of the rules it does have”, I think it is safe to say that their accounting to Congress has been misleading.
The report is going to ramp up pressure on Attorney General Alberto Gonzales, who is already getting battered by Republicans. For example:
Sen. Arlen Specter: “One day, there will be a new attorney general, maybe sooner rather than later.”
Sen. John Ensign: “I can’t even tell you how upset I am at the Justice Department.”
Things are going to get uglier now that the Senate Judiciary Committee has arranged for a bunch of Gonzales’ subordinates to testify before them. Bush and Gonzales have now pledged not to oppose a bill by Diane Feinstein that would undo the changes in the Patriot Act that allowed for Gonzales to sack the prosecutors and replace them without Senate approval. And then there there will be the specter of Valerie Plame Wilson testifying before Henry Waxman’s Oversight committee next week. Things are heating up.
