Stop the presses: enhanced powers given to the FBI to obtain communications or financial data in national security investigations without judicial approval... has been repeatedly abused!
In March, the Justice Department's inspector general, Glenn Fine, disclosed 22 cases of misconduct in agents' use of National Security Letters, a power given under the Patriot Act allowing the FBI to in effect subpoena e-mail, telephone and financial records from third parties -- like internet service providers -- entirely in secret. NSL's, as they're known, are only supposed to be used in terrorism cases, and only when agents are able to provide "specific and articulable" reasons tying the subject of the data to a terrorism investigation.
Fine discovered the FBI had been using NSL's to circumvent the more cumbersome process of obtaining warrants, relying on NSLs in non-terrorism cases or under circumstances where they didn't meet the "specific and articulable" threshold. That, however, was on a relatively limited scale -- 22 cases out of a sample of 293 -- although Fine noted that between 2002 and 2006, the FBI issued a staggering 19,000 NSL's. Today, the Washington Post finds that the March report only scratches the surface:
An internal FBI audit has found that the bureau potentially violated the law or agency rules more than 1,000 times while collecting data about domestic phone calls, e-mails and financial transactions in recent years, far more than was documented in a Justice Department report in March that ignited bipartisan congressional criticism.
The new audit covers just 10 percent of the bureau's national security investigations since 2002, and so the mistakes in the FBI's domestic surveillance efforts probably number several thousand, bureau officials said in interviews. The earlier report found 22 violations in a much smaller sampling.
When the story broke in March, embattled FBI Director Robert Mueller promised the Senate Judiciary Committee that he was acting expeditiously to fix the problem.
According to the Post, the audit has so far turned up no evidence of intentional wrongdoing. Instead, its found that the FBI has been less than rigorous in ensuring that agents understand that NSLs are supposed to be used only in terrorism-related emergencies, and carry with them a strict limit on how long collected information may be retained. Once again, the FBI is promising that it'll put enhanced safeguards into place, and now has a "clear plan" to do so:
Of the more than 1,000 violations uncovered by the new audit, about 700 involved telephone companies and other communications firms providing information that exceeded what the FBI's national security letters had sought. But rather than destroying the unsolicited data, agents in some instances issued new National Security Letters to ensure that they could keep the mistakenly provided information. Officials cited as an example the retention of an extra month's phone records, beyond the period specified by the agents.
Case agents are now told that they must identify mistakenly produced information and isolate it from investigative files. "Human errors will inevitably occur with third parties, but we now have a clear plan with clear lines of responsibility to ensure errant information that is mistakenly produced will be caught as it is produced and before it is added to any FBI database," (FBI General Counsel Valerie) Caproni said.
The FBI should conclude its audit in the next few weeks. That should give Mueller enough time to prepare for his next round of hat-in-hand testimony.