March 9, 2007
Justice Department Says F.B.I. Misused Patriot Act
By DAVID JOHNSTON and ERIC LIPTON
WASHINGTON, March 9 — The F.B.I. has improperly used provisions of the USA Patriot Act to obtain thousands of telephone, business and financial records without prior judicial approval, the Justice Department’s inspector general said today in a report that embarrassed the F.B.I. and ignited outrage on Capitol Hill.
The report found that the bureau lacked sufficient controls to make sure that its agents were acting properly when they obtained records using administrative subpoenas, which do not require a judge’s prior approval. And the report found that the bureau does not follow some of the rules it does have on the matter.
Robert S. Mueller III, the director of the Federal Bureau of Investigation, called a news conference today to accept responsibility for the lapses, and to pledge his best efforts to see that they are not repeated.
“How could this happen?” Mr. Mueller asked rhetorically. “Who is to be held accountable? And the answer to that is, I am to be held accountable.”
Under the USA Patriot Act, the bureau has issued more than 20,000 demands for information known as national security letters. The report concluded that the program lacks effective management, monitoring, and reporting procedures.
The report is available on the Department of Justice’s web site.
Mr. Mueller noted that the report attributes the lapses to procedural errors rather than malicious intent; that the actual number of abuses was relatively small; that it appeared that no individual or business was harmed; and that the mistakes were committed in the tension-filled atmosphere of the post-Sept. 11 world.
Nevertheless, Mr. Mueller said, the abuses were serious because they infringed, at least potentially, on privacy rights that Americans cherish. The director said he welcomed Congress’s ideas on how to avoid similar mistakes in the future, and acknowledged Congress’s proper “trust but verify” posture.
Still, the report touched off a bipartisan storm in the Capitol.
“This is, regrettably, part of an ongoing process where the federal authorities are not really sensitive to privacy and go far beyond what we have authorized,” said Senator Arlen Specter of Pennsylvania, the top Republican on the Senate Judiciary Committee.
Senator Russell D. Feingold, Democrat of Wisconsin and a member of the judiciary panel, said the report demonstrates that “ ‘trust us’ doesn’t cut it.”
Mr. Mueller said in response to a reporter’s question that he had no intention of resigning his post.
Details of the inspector general’s report emerged on Thursday, a day ahead of its formal publication, as Attorney General Alberto R. Gonzales and other officials struggled to tamp down a Congressional uproar over another issue, the ouster of eight United States attorneys.
Mr. Gonzales told Democratic and Republican senators that the Justice Department would drop its opposition to a change in a one-year-old rule for replacing federal prosecutors, senators and Justice Department officials said.
Mr. Gonzales offered the concession at a private meeting on Capitol Hill with members of the Senate Judiciary Committee. Mr. Gonzales also agreed to let the panel question Justice Department officials involved in the removals, Congressional aides said. The officials would testify voluntarily without subpoena.
Mr. Gonzales’s willingness to give in to Senate demands appeared to underscore how the Justice Department had been put on the defensive by the criticism over the prosecutors’ ousters.
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.
As problems for the Justice Department appeared to be piling up, criticism of Mr. Gonzales seemed to grow more biting as Republicans senators complained about Mr. Gonzales, some because of a letter in USA Today in which he said he had lost confidence in the ousted prosecutors and regarded the question an “overblown personnel matter.”
Senator Arlen Specter of Pennsylvania, senior Republican on the judiciary panel, said in a telephone interview that those comments were “extraordinarily insensitive” and that the prosecutors were “professionals who are going to have a cloud over them which could last a lifetime.”
“I have been trying to hold down the rhetoric and try to deal with this on a factual and analytical basis, and his letter was volcanic,” Mr. Specter said. “We don’t need that,” he added.
Earlier at the Judiciary Committee business meeting, Mr. Specter also had harsh words for Mr. Gonzales, saying, “One day, there will be a new attorney general, maybe sooner rather than later.”
Mr. Specter said later his remark did not indicate that Mr. Gonzales had any intention of stepping down.
Other Republican senators expressed strong criticism of the removals and handling by Mr. Gonzales’s aides. Senator John Ensign, Republican of Nevada, was quoted by The Las Vegas Review-Journal as saying the prosecutors’ removals had “been completely mishandled.”
The United States attorney in Nevada, Daniel G. Bogden, was one of the eight dismissed without explanation until he was told by a senior Justice Department officials that he was being replaced to make room for other appointees. Mr. Ensign said the department fired Mr. Bogden over his objections. Mr. Ensign said last month that he was told that the change was for “performance reasons,” but said he was surprised when a Justice Department official testified at a House hearing on Tuesday that Mr. Bogden’s performance had no serious lapses.
Even staunch Republican defenders of the department expressed criticism. One ally was Senator Jon Kyl of Arizona, where Paul K. Charlton was among those dismissed.
“Some people’s reputations are going to suffer needlessly,” Mr. Kyl said. “Hopefully, we can get to the point where we say, ‘These people did a great job.”‘
The withdrawal of objections to changing the rules for the prosecutors appears to assure passage of a measure to restore rules changed last March, when the attorney general was given authority to appoint replacement United States attorneys indefinitely, several senators said.
“The administration has withdrawn its objections to my legislation,” the sponsor of the bill, Senator Dianne Feinstein, Democrat of California, said. She was one of the senators who met with Mr. Gonzales. Others were Mr. Specter, Charles E. Schumer, Democrat of New York, and Patrick J. Leahy of Vermont, the chairman of the Judiciary Committee.
Ms. Feinstein said: “My concerns have been that the firing of people with strong performance reviews all at one time, a number of whom were involved in corruption cases, sends an adverse signal to the rest of the U.S. attorneys, as well as to the general public. They may be hired by the president, but they serve the people and they should not be subjected to political pressure.”
The bill would let the attorney general appoint a temporary replacement for 120 days. If the Senate confirms no one after that time, the appointment of an interim United States attorney would be left to a federal district judge.
Brian Roehrkasse, a Justice Department spokesman, said Thursday night: “The department stands by the decision to remove the U.S. attorneys. As we have acknowledged in hindsight, we should have provided the U.S. attorneys with specific reasons that led to their dismissal that would have help to avoid the rampant misinformation and wild speculation that currently exits.”
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