Patricia L Johnson: "I Am Accountable"

Speaking from FBI headquarters, Robert S. Mueller, III told reporters “I am to be held accountable,” Apparently being responsible for misuses of national security letter authorities doesn’t involve resigning as Mueller went on to state he would not resign his position as FBI Director.

Director Mueller’s comments were in response to questions about the 199-page report “A Review of the Federal Bureau of Investigation’s Use of National Security Letters” issued in March 2007.

The report indicates during calendar year 2003 through 2005 a total of 143,074 National Security requests were issued. Since one NSL to a third party can contain numerous requests for information, i.e., a NSL to a telephone company may request information on six or seven different telephone numbers, the actual number of National Security Letters to third parties during this period may be significantly lower.

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A National Security Letter (NSL) is a letter requesting information from a third party, sent by the FBI or other government agency, having authority to conduct a national security investigation. FBI NSL’s are sent to telephone companies, internet service providers, credit bureaus and banks requesting the following information:

• Subscriber information
• Toll billing records
• Internet service provider (ISP) login records
• Electronic communication transaction records
• Financial records
• Money transfers
• Credit records
• Other consumer identifying information

Four separate statutes grant five provisions for this authority as follows:

• The Right to Financial Privacy Act, 12 U.S.C.§ 3414(a)(5), provides for access to financial institution customer records
• The Fair Credit Reporting Act, 15 U.S.C.§ 1681u(a) and (b), provides for access for a list of financial institution identities and consumer identifying information from a credit reporting company
• The Fair Credit Reporting Act, 15 U.S.C. § 1681v, provides for access to a full credit report in an international terrorism case. This provision was created by the 2001 USA PATRIOT Act
• The Electronic Communications Privacy Act, 18 U.S.C. § 2709, provides for access to billing and transactional communication service provider records from telephone companies and internet service providers
• The National Security Act, 50 U.S.C. § 436, provides for access to financial, consumer, and travel records for certain government employees who have access to classified information

The OIG review of 77 investigative files and 293 national security letters in 4 FBI field office identified the following failures: NSL approvals were not reviewed and initialed by required field supervisors or Division Counsel, NSL approved memoranda did not contain all required information, and NSL’s did not contain required recitals or other information as required by statute.

46 of the 77 files reviewed (60 percent) contained more than one infraction of the rules, yet the NSL’s were still approved.

Although the OIG found numerous areas of serious concern and deficiencies, it must be noted that the OIG found no indication that the failures were intentional or deliberate.

When used appropriately, national security letters contribute to both counterterrorism and counterintelligence investigations and are vital tools in the war on terror. These same tools however, when not used in accordance with applicable laws are a direct abuse and violation of our civil liberties.

The OIG report made 10 recommendations for improvement and Director Mueller, in a March 6, 2007 letter to the OIG, agreed with implementing all recommendations.

The most serious rule violation appeared to be with the 739 CAU 'exigent letters' that did not provide all the information necessary to satisfy the ECPA NSL Statute, the Attorney General's NSI Guidelines, or internal FBI policy.

An 'exigent' letter is a letter giving the reader the impression emergency conditions are in place that require immediate attention.

The OIG recommended taking steps to ensure these letters are not improperly used in the future and Director Mueller went one step further and has barred the use of exigent letters by the FBI.

No one appreciates having their privacy invaded and given a choice most of us would not want the FBI, or any other government agency, to have the means available to obtain our personal information.

Unfortunately, we’re no longer in a position where we can do too much complaining. We went out into the night and attacked two separate countries, Afghanistan and Iraq and for the next several decades we are going to have to be on guard against retaliation for these attacks.

Information is the key to our future safety. The more the authorities know about people coming in and out of this country, as well as those living here, the better prepared they will be to ensure our safety.

The OIG review covered a very small percentage of files, yet uncovered an exceptional number of serious rule violations. When there are that many infractions within a small number of case studies, perhaps it’s time to change the rules.

Do we really want FBI personnel spending their time dotting ‘I’s” and crossing “T’s” or do we want them out looking for the bad guys?

Patricia L Johnson is a writer residing in Northeastern Illinois

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