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FBI acknowledges improper use of subpoenas in 2006
WASHINGTON — The FBI acknowledged Wednesday it improperly accessed Americans' telephone records, credit reports and Internet traffic in 2006, the fourth straight year of privacy abuses resulting from investigations aimed at tracking terrorists and spies.
The breach occurred before the FBI enacted broad new reforms in March 2007 to prevent future lapses, FBI director Robert Mueller said. And it was caused, in part, by banks, telecommunication companies and other private businesses giving the FBI more personal client data than was requested.
Testifying at a Senate Judiciary Committee hearing, Mueller raised the issue of the FBI's controversial use of so-called national security letters in reference to an upcoming report on the topic by the Justice Department's inspector general.
An audit by the inspector general last year found the FBI demanded personal records without official authorization or otherwise collected more data than allowed in dozens of cases between 2003 and 2005. Additionally, last year's audit found that the FBI had underreported to Congress how many national security letters were requested by more than 4,600.
The new audit, which examines use of national security letters issued in 2006, "will identify issues similar to those in the report issued last March," Mueller told senators. The privacy abuse "predates the reforms we now have in place," he said.
"We are committed to ensuring that we not only get this right, but maintain the vital trust of the American people," Mueller said. He offered no additional details about the upcoming audit.
National security letters, as outlined in the USA Patriot Act, are administrative subpoenas used in suspected terrorism and espionage cases. They allow the FBI to require telephone companies, Internet service providers, banks, credit bureaus and other businesses to produce highly personal records about their customers or subscribers without a judge's approval.
Last year's audit blamed agent error and shoddy record-keeping for the bulk of the problems and did not find any indication of criminal misconduct.
Fine's latest report is expected to be released as early as next week.
Several Justice Department and FBI officials familiar with the upcoming 2006 findings have said privately the new audit will show national security letters were used incorrectly at a similar rate as during the previous three years.
The number of national security letters issued by the FBI skyrocketed in the years after the Patriot Act became law in 2001, according to last year's report. Fine's annual review is required by Congress, over the objections of the Bush administration.
In 2005, for example, Fine's office found more than 1,000 violations within 19,000 FBI requests to obtain 47,000 records. Each letter issued may contain several requests.
In contrast to the strong concerns expressed by Congress and civil liberties groups after last year's inspector general's report was issued, Mueller's disclosure drew no criticism from senators during just over two hours of testimony Wednesday.
Speaking before the FBI chief, Senate Judiciary Chairman Patrick Leahy, D-Vt., urged Mueller to be more vigilant in correcting what he called "widespread illegal and improper use of national security letters."
"Everybody wants to stop terrorists. But we also, though, as Americans, we believe in our privacy rights and we want those protected," Leahy said. "There has to be a better chain of command for this. You cannot just have an FBI agent who decides he'd like to obtain Americans' records, bank records or anything else and do it just because they want to."
Following last year's audit, the Justice Department enacted guidelines that sternly reminded FBI agents to carefully follow the rules governing national security letters. The new rules caution agents to review all data before it is transferred into FBI databases to make sure that only the information specifically requested is used.
Fine's upcoming report also credits the FBI with putting the additional checks in place to make sure privacy rights aren't violated, according to a Justice official familiar with its findings.
Critics seized on Mueller's testimony as proof that a judge should sign off on the national security letters before they are issued.
"The credibility factor shows there needs to be outside oversight," said former FBI agent Michael German, now a national security adviser for the American Civil Liberties Union. He also cast doubt on the FBI's reforms.
"There were guidelines before, and there were laws before, and the FBI violated those laws," German said. "And the idea that new guidelines would make a difference, I think cuts against rationality."