FBI Issued Illegal National Security Letters Under USA PATRIOT Act

A new Justice Department report concludes that the FBI broke the law in its use of the Patriot Act to secretly obtain phone, business, and financial data about people in the U.S.

The Justice Department’s inspector general has prepared a scathing report criticizing how the F.B.I. uses a form of administrative subpoena to obtain thousands of telephone, business and financial records without prior judicial approval.

The report, expected to be issued on Friday, says that the bureau lacks sufficient controls to make sure the subpoenas, which do not require a judge’s prior approval, are properly issued and that it does not follow even some of the rules it does have.

From the Associated Press:

The FBI’s transgressions were spelled out in a damning 126-page audit by Justice Department Inspector General Glenn A. Fine. He found that agents sometimes demanded personal data on people without official authorization, and in other cases improperly obtained telephone records in non-emergency circumstances.

The audit also concluded that the FBI for three years underreported to Congress how often it used national security letters to ask businesses to turn over customer data. The letters are administrative subpoenas that do not require a judge’s approval.


Under the Patriot Act, the national security letters give the FBI authority to demand that telephone companies, Internet service providers, banks, credit bureaus and other businesses produce personal records about their customers or subscribers. About three-fourths of the letters issued between 2003 and 2005 involved counterterror cases, with the rest for espionage investigations, the audit reported.

Shoddy record-keeping and human error were to blame for the bulk of the problems, said Justice auditors, who were careful to note they found no indication of criminal misconduct.

Here’s the report (mirrored here), and here’s a BoingBoing post on the topic; also, this Wired article. And this by Daniel Solove.

Posted on March 12, 2007 at 3:55 PM32 Comments


Spider March 12, 2007 4:20 PM

So they need someone to supervise their use of judgeless warrants and subpoenas?

Why not let a judge be that person,seeing as how they seem to have a firm grasp on laws and everything?

The judge wouldn’t be granting his approval of the warrant per say, just approving that his approval of the warrant was unnecessary.

I’m confident no one would be any more confused under that system then the current one.

aikimark March 12, 2007 5:29 PM

Say it isn’t so…FBI spying on citizens illegally?!? I wonder if Alberto Gonzalez favors wearing women’s underwear just like J.E. Hoover. 🙂

Carlo Graziani March 12, 2007 5:48 PM

This is an epicyclic scandal. The central scandal here is the Patriot Act itself, which represents an exercise in defending the nation by undermining the principles that make it worth defending in the first place.

The country is to scared to care, however. Don’t expect to see any members of Congress grilled about their votes on the Patriot Act the way they are now being grilled about their votes on the Iraq War Resolution. The public has – belatedly – decided the war was a bad idea after all. By the time they change their mind about the desirability of becoming a high-surveillance police state, I doubt there will be very much that can be done about it.

“Land Of The Free”. I’d snicker, if it didn’t hurt.

gfujimori March 12, 2007 6:24 PM

@Carlo Graziani

In the aftermath of 9/11, your comment is very astute. After the attacks on September 11, things like the writ of habeas corpus become unnecessary. On the bright side, as things progress like this, America won’t have any principles worth defending anyway.

Snicker all you want, the truth hurts! Maybe not as much as hoping on a bicycle without a seat on it, but it hurts.

Pat Cahalan March 12, 2007 6:37 PM

The funny thing to me is this quote:

“We have some work to do to reassure members of Congress and the American people that we are serious about being responsible in the exercise of these authorities,” [Gonzales] said.

Sorry, Alberto, but if 60% of these are outright improper and another 22% are questionable, I don’t think you have any credibility with which to provide reassurance.

Bill P. March 12, 2007 7:56 PM

At my increasing age, I seem to forget, why did we so hate those damn commies?
Were they bent on spreading Communism? How many countries did they invade, unprovoked and we condemned their actions? How many prisoners did they retain without due process? How many people were tortured? Didn’t they believe that the ends justified the means?
Didn’t they watch their citizens closely? Was that the KGB? Oh wait, didn’t they have a “state” mandated identification? Papers, please!
Silly me, they were “godless” and persecuted everyone who didn’t believe as they! Why does that sound familiar? And bad on you if you weren’t a party member! Traitor! Treasonable! Unpatrotic! Get them up against the wall!
Don’t dare to speak against the system! We, the poletariat should thank our comrades Bush, Cheney, Rove, Gonzales and the rest of the bourgeoisie- they are just trying to protect us by inducing terror. Thankfully, they don’t have to live under the same laws or conscience as the rest of us.

My point is that the Patriot Act is anything but democratic. Counter-terrorism isn’t the reason, controlling the populace is. Pre 9/11 we would not have allowed this. If the government is really trying to protect the citizens, then legal processes under the Patriot Act should be limited to anti-terrorism. If they find a gallon of white lightning or a ton of pot in someone’s backpack, too bad- it isn’t terror related and the person should walk.

Before the flames roar, I wish to point out that I paid my dues, trying to defend this country and have a deep belief in what was our Constitution. My daddy didn’t keep me out of the war. So, while I protected YOUR right to flame on, I ask some respect to in disagreement.

Opps, gotta run, there is a knock on the door……..

Anonymous March 12, 2007 10:34 PM

And yet as far as I can tell, (and as far as Gonzales claims,) they didn’t get anything they couldn’t have gotten properly anyway. They were just a bit cavalier about jumping through all the hoops.

But even if they had dotted all the i’s and crossed all the t’s, is this the PATRIOT act we really want anyway?

Igor March 12, 2007 11:05 PM

The Patriot Act is a disgrace to this country. Hopefully the next president (whoever he or she is), will have enough sense to get rid of it. Oh wait, he or she will probably be too busy
kissing predecessor ass for whatever reason to care much.

Joe Buck March 13, 2007 12:00 AM

Anonymous: Gonzales believes that the President should have the powers of a king during “wartime”, and that we are at war for the indefinite future, and he’s sold his boss on this notion. So yes, even when they could get their way legally, doing so illegally is intended to establish a precedent and get everyone used to the concept that the “unitary executive” can fight the “war on terror” however he sees fit.

Timm Murray March 13, 2007 12:13 AM

Something of a tangently related point, I decided on a whim to see if Free Republic had picked up the story:


From such a heavy-Republican site (to put it mildly), I expected heavy support for the PATRIOT act on this issue.

Reading over the replies there, most of them are against the PATRIOT act. I only count two posters who genuinely back the act in 41 replies. The detractors often use Libertarian-like language in their critisim (such as “giving the government additional power only leads to abuse”).

This is completely different from what I would have expected from Free Republic 2-5 years ago. I think it suggests that we’re seeing the start of a split in the Republican party between Libertarian-like segments (limit government powers, free-market capitalism, etc.) and Neoconservitives (Monroe doctrine-like foreign policy, but more liberal domestically).

Anonymous March 13, 2007 5:26 AM

Who cares, I’m too busy following what Britney Spears and Paris Hilton are up to.
Those kooky famous people. And don’t forget that wild and wacky Hulk Hogan and his family.

In the 60’s and 70’s, people cared about community and changing their country for the better. Today, the majority of the people are programmed by their boob tube. If it doesn’t directly damage their entertainment or bank account, they don’t care.

With so many things hidden and secret in governments of large countries, do you really believe we will ever get to the bottom of things and end corruption? Since the world began people have conspired and were corrupt.

I look forward to my next reincarnation as a monkey, where I will happily swing from tree to tree oblivious to the stupidity of mankind.

Martin March 13, 2007 5:39 AM

Did anybody here have any doubt the Patriot Act would be misused before this report came out?

Paterson March 13, 2007 7:14 AM

[“A new Justice Department report concludes that the FBI broke the law”]

NO — ‘specific individuals’ broke the law !

The term ‘FBI’ is a mere abstraction that cannot be ‘prosecuted & punished’ for law-breaking.

Thus, the government hides its crimes even when seeming to admit them. Names will not be revealed… and no specific prosecutions will happen; crimes go unpunished.

We all buy into this scam when we allow the government & news-media to place criminal blame on ‘abstract government organizations’… rather than specific individuals who are known to have broken the law.

The “FBI” will publicly promise to sin-no-more, but its anonymous workers will do as they please.

C Gomez March 13, 2007 7:48 AM

Before the Patriot Act, there were judgeless warrants. What I am curious abut is if it would have been possible to gain this information beforehand, rendering the Patriot Act a convenient whipping boy for a larger problem, and preexisting problem.

I’ve never understood the point of most warrantless searches, and think the Court has gone so far in generating exceptions for exigency such that the exception has swallowed the rule.

George March 13, 2007 10:02 AM

Let’s not be too harsh in criticizing either the FBI or the USA PATRIOT Act.

Ashcroft, and later Gonzales, correctly recognized that openness and civil liberties make us dangerously vulnerable to terrorism. So they’re doing everything possible to protect us from terrorism by eliminating that vulnerability.

Stephan Samuel March 13, 2007 10:31 AM

How many people who wrote posts here complaining about the demise of America or how no one does anything about it did anything themselves? I’d bet that if enough people write their congressperson, there will be enough clamor for the FBI to fire some people.

As for me, I’m not worried yet.

Carlo Graziani March 13, 2007 10:38 AM

@C Gomez:

There is an interesting review and critique of the Patriot Act here:

While it is true that there were National Security Letters prior to 2001, the attendant gag orders were essentally voluntary, and not enforceable, and the letters had to be signed by a Deputy Director of the FBI.

According to the article just cited, the Patriot Act changed NSLs as follows:

(1) broadening the scope of investigations to which NSLs apply, from “an authorized foreign counterintelligence operation” to “an authorized investigation to protect against international terrorism or clandestine intelligence activities”;

(2) substituting the requisite nexus to a foreign power with the requirement that the information sought is merely “relevant” to the investigation;

(3) applying this “relevance” standard instead of the individualized suspicion requirement of “specific and articulable” facts; and,

(4) extending NSL issuing authority to “Special Agent[s] in Charge” at FBI field offices.

In other words, the standards for issuing letters were loosened to the point that almost no serious legal restriction remained, and — crucially — the administrative bottleneck represented by the requirement of an FBI DA signature was removed, making it bureaucratically possible to begin issuing NSLs by the bale.

That’s in part why complaints of misuse of NSLs by the FBI are so hilariously off-base. Even fully statutory usage of NSLs constitutes a substantial menace to personal liberty, personified by field agents who can easily meet statutory requirements to hit whomever they like with an NSL, for almost any reason.

FP March 13, 2007 11:13 AM

Not much of a story here. In any large organization, with any process, there will be error. The more a process is performed, there more errors there will be. Unless there is criminal misconduct — intentionally providing wrong data to the judge in order to acquire records that they wanted but were not entitled to — nothing is going to happen, except for some hand slapping.

Of course there is reason to investigate. Just because they haven’t found no criminal misconduct yet doesn’t mean that there isn’t.

And nothing changes the fact that the NSL are a disgrace to a society that calls itself free.

Brett March 13, 2007 1:19 PM

I’m considering printing this article up and keeping a copy in my wallet…

(sidelong glance towards http://www.theatlantic.com/doc/200610/waldman-islam – quote: “And folded in his wallet was a scrap of paper on which was written a squib of Arabic. Prosecutors first translated the words as “Lord, let us be at their throats, and we ask you to give us refuge from their evil,??? and then amended it, after the defense protested, to “Oh Allah, we place you at their throats, and we seek refuge in you from their evil.??? But regardless of the translation, the interpretation of what the government called the “jihadist note??? never changed.”)

markm March 13, 2007 3:41 PM

“Unless there is criminal misconduct — intentionally providing wrong data to the judge in order to acquire records that they wanted but were not entitled to — nothing is going to happen, except for some hand slapping.”

You’re an optimist. First off, with the NSL they don’t have to provide any data to a judge – so there may be no record at all of why the agent claimed this was necessary, and no false records to get into trouble. Second, with ordinary warrants (including ones that authorize middle of the night “no-knock” entries) there are too many judges that will sign without insisting on proper documentation – for an example, see Radley Balko’s articles on the Corey Maye case. Finally, 15 years ago the FBI and BATF knowingly submitted false information to get a warrant, then mishandled things to the point that a few federal agents were shot and 70-some men, women, and children burned alive in their home – and wrists weren’t even slapped. (Yes, I’m talking about Waco, and the original warrant included drug allegations about people that the feds knew had been kicked out.)

Carlo Graziani March 13, 2007 6:38 PM

Frankly, I thought the Flying Spaghetti Monster theory was more persuasive. It was certainly expressed more succinctly.

Brent March 14, 2007 4:14 PM

An earlier poster said: “NO — ‘specific individuals’ broke the law !”

Lets think about motivation here. Someone authorized to do an NSL generates a few hundred of these and fails to do the paperwork.

Is this an individual error or an institutional error?

Is the paperwork onerous? If the NSLs are getting results, but the paperwork is preventing agents from following up good leads obtained from an NSL, then it could be a systematic error – a process error, not an individual error.

Is the problem all the false positives – leads that turn out to be false leads. Noise looking like data? If it is, these people may have wanted to fake their success rate by reducing the try rate. Again, probably a systematic error – coercing agents to try things that just are not working, and keep on trying them.

What is the FBI getting for all these NSLs? They are chasing 50,000 of these a year and charging almost no one. Certainly no one with offences against which the NSLs are targeted.

Would a good agent use this technique by choice? Generate all sorts of work based on leads that go no where? Year after year. Seems unlikely to me. If it is not working, does doing the same thing more often make sense? Why are these people working like this?

Could it be a systemic problem? The FBI, after completely missing the threat on 9/11 has decided that it won’t miss the next one. The FBI in this case being the appointed people controlling it from the top. All they know what to do is scan databases. That is their only idea.

Didn’t work last time. Won’t work next time.

In my view this is not a problem with people, it is a problem with the organization.

Dumping the NSL thing and getting these people back to using systems that work makes more sense to me.


John Doe March 16, 2007 10:38 AM


“Openness and civil liberties make us dangerously vulnerable to terrorism”???

Well then, obviously we need to do away with these troublesome liberties and openness of ours! Problem solved!

Funny how this was never a problem for the first 200+ years of this country. Hmmm… did something change during the last generation to make us such a desirable target of these terrorist acts? I’ll leave you to discuss amongst yourselves.

(Hint: If you can’t figure out the answer, then you’re part of the problem.)

Cooper March 17, 2007 10:42 AM

Its amazing how crazy things have gotten. I don’t live in the country I was born, the United States, I don’t feel free and I don’t feel we in America have any liberties. We have a Government who makes up laws to be able to strip people of the rights. I am curious of people who support the patriot act. Did they feel like they live in Sibera in the first place?

Mulder March 18, 2007 12:13 PM

This story reveals several things not apparent to the casual reader:

  1. Despite their widespread and casual use of National Security Letters, the FBI has yet to turn up a single terrorist from these efforts.
  2. Administrative Subpoenas are a dangerous tool; there’s no oversight from a judge, and no probable cause is needed, so civil rights are often trampled in the process.
  3. The report says the FBI illegally used the National Security Letter, but later says that there was no indication of criminal misconduct. That just isn’t possible. A crime is a crime; either the FBI acted illegally, or they didn’t. So the Justice Department Inspector General gives his report a title sure to grab headlines in the news and attention from lawmakers, but after reading it, you come to the part where he says there was nothing criminal. That’s not possible.

What’s more interesting is that a federal judge warned the Justice Department last year that NSL administrative subpoenas were probably unconstitutional, due to the requirement that the recipient isn’t allowed to reveal they got one, which violates the free speech clause of the U.S. Constitution.

So if these are found unconstitutional (very likely, I think), that would seem to make all such subpoenas unconstitutional in every state, No longer would local or state law enforcement be able to use them in secret, denying you the right to challenge it in open court.

Maybe we might actually be making some progress to turn back the spying on innocent civilians by the Bush administration.

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