Turning the Heat Up

Yesterday I noted with some satisfaction that the Justice Department and the administration were getting some pushback from the 110th Congress on some pretty serious abuses of the "national security letters" issued by the FBI. Today's Los Angeles Times shows just how egregious those abuses were.

Angry lawmakers on Friday threatened to amend the USA Patriot Act and limit the FBI's powers in the wake of a disclosure that agents had improperly obtained confidential records of people in the United States.

A scathing report issued Friday by the inspector general of the Justice Department found widespread problems in how the FBI has used a form of administrative subpoena — known as a national security letter — to gather phone, bank and credit information on thousands of citizens without court oversight.

The problems included the issuing of letters that circumvented Justice Department rules and regulations; in addition, the report found a record-keeping system in such disarray that annual reports to Congress substantially understated the number of subpoenas the FBI was issuing.

...Investigators also alleged that FBI headquarters circumvented the rules by obtaining billing records and subscriber information from three telephone companies on about 3,000 phone numbers without issuing national security letters at all.

The law allows the FBI to obtain such records under "exigent" circumstances. But the report found that the bureau, with the support of the phone companies, was using the power in non-emergency situations. The records were supplied between 2003 and 2005. The report found even top FBI lawyers were unaware of the practice until the latter part of 2004. [Emphasis added]

The "national security letter" has the force and effect of a subpoena but requires no judicial review whatsoever. The FBI and the Administration told Congress that such a system was required in times of grave emergencies when there simply wasn't time to get a judge's approval (sound familiar?) and the FBI promised to put plenty of safeguards into place so that civil liberties as guaranteed by the US Constitution would never be jeopardized.

Now we find that not only were the national security letters issued without any of the promised departmental oversight and at times when there were no emergencies, but also that the FBI sometimes didn't even bother with issuing the letters to get the data they wanted.

The Attorney General is embarrassed and has promised to look into the matter. Some members of the Republican leadership have expressed outrage. One such Republican is Senator Arlen Specter.

"The inspector general's report shows a massive misuse by the FBI of the national security letters for law enforcement," Specter said. "There'll be oversight hearings. And I think we may have to go further than that and change the law, to revise the Patriot Act … and perhaps take away some of the authority which we've already given to the FBI, since they appear not to be able to know how to use it." [Emphasis added]

Sen. Specter has expressed outrage in the past, but when the time came, he invariably capitulated to the White House. Fortunately, he is now the ranking member, not the chair of the Senate Judiciary Committee. Still, perhaps inadvertently, he has stated what the 110th Congress has to do: revisit the Patriot Act and clean it up drastically.