Senate Judiciary
Committee Explores FBI Use Of National Security Letters
WASHINGTON (Wednesday,
April 23, 2008) – The Senate Judiciary Committee today heard
testimony from a panel of expert witnesses on the use of National
Security Letters (NSLs) by the Federal Bureau of Investigation (FBI)
since 9/11. The letters, issued by the FBI to various entities,
including phone companies and Internet providers, are used to
request personal information about U.S. citizens without a court
order and without judicial oversight. The Department of Justice
Inspector General has issued two reports on the FBI’s use of NSLs,
one in
March 2007 and one in
March 2008. In his examination of the FBI’s use of NSLs, the
Inspector General found widespread violations and failures to meet
minimal authorization requirements in their issuance. The most
recent report was released March 13, a week after FBI Director
Robert Mueller
testified before the Senate Judiciary Committee at an oversight
hearing. The Judiciary Committee Wednesday heard from national
security specialists James Baker, Gregory Nojeim and Michael Woods.
Senate Judiciary
Committee Chairman Patrick Leahy (D-Vt.) scheduled Wednesday’s
hearing to explore possible changes to statutory authority in the
use of National Security Letters. Leahy’s prepared statement
follows. To watch the hearing online and review witness testimony,
visit the Judiciary Committee’s
website.
Statement Of Senator
Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
Hearing On "National
Security Letters:
The Need for Greater Accountability and Oversight"
April 23, 2008
When Congress last reauthorized and expanded the USA PATRIOT Act in
March 2006, I voted against it. As I stated then, the Bush
administration and the Republican Congress missed an opportunity to
get it right. Still, we were able to include some sunshine
provisions which have given us insight that we use today in our
examination of the use of National Security Letters (NSLs).
I have long been concerned by the scope of the authority for NSLs,
and the lack of accountability for their use. Thankfully, we were
able to include requirements for a review of the NSL program by the
Inspector General in the reauthorization of the PATRIOT Act. For
two years now, those reports by the Inspector General have revealed
extremely troubling and widespread misuse of NSLs.
The authority to issue NSLs allows the Federal Bureau of
Investigation (FBI) to request sensitive personal information –
phone bills, email transactions, bank records, and credit reports –
without a judge, a grand jury, or even a prosecutor evaluating those
requests. In his reports, the Inspector General has uncovered very
disturbing misuse of this authority. The Inspector General’s
reports found widespread violations, including failure to comply
with even the minimal authorization requirements and, more
disturbingly, that the FBI requested and received information to
which it was not entitled under the law. The reports found rampant
confusion about the authorities and virtually no checks to ensure
compliance or correct mistakes.
Very significantly, the Inspector General also found that NSL use
has grown to nearly 50,000 a year and nearly 60 percent of NSLs are
used to obtain information about US Persons. This is a major change
in the years since 9/11.
I have raised these concerns with FBI Director Mueller and, in
fairness, the FBI has acknowledged problems. It has issued new
guidance and developed a new data system to track issuance of NSLs.
It has also created an Office of Integrity and Compliance to ensure
that there are processes and procedures in place to ensure
compliance. I believe that the Director and his staff are sincere
in their efforts, but I am not persuaded that the actions they have
taken are enough.
Today we follow up on earlier oversight hearings to ask what changes
are needed to the statutory authority. Among the things that
concern me are whether the law should require higher level review
and approval – perhaps judicial or Department of Justice review –
before NSLs can be issued. Is the standard for issuance, which
requires only that it be relevant to a terrorism investigation too
lenient? Is the scope of documents available under NSLs too broad?
I would also like to hear how we can ensure that there are adequate
standards for determining when private records on U.S. persons
collected using NSLs can be retained, disseminated, and used.
I commend Senator Feingold, who has been a leader on this issue. I
believe his bipartisan bill, the National Security Letter Reform Act
of 2007, is on the right track, particularly in its recognition of
the need for a real check on and independent oversight of NSLs. The
bill would also narrow the extraordinarily broad scope of
information that NSLs can acquire and would make the standard for
their issuance more rigorous. I look forward to hearing our
witnesses’ views on this important legislation and getting other
ideas from them on possible legislative improvements to NSL
authority.
The problem we see with NSLs is just one part of a much broader
concern. We all recognize that the changing nature of national
security threats, in particular the threat from international
terrorism, has required changes to the way the government collects
and uses intelligence and the kinds of information it needs. We
must remember, though, what a perilous undertaking it is when the
government engages in domestic spying. Americans do not like it –
with good reason. We have a long history of abuses – the Red Scare
of 1919, McCarthyism, COINTELPRO, Watergate, the recent Pentagon
Talon database program that collected information on Quakers and
other antiwar protesters. If we are going to adapt our collection
and use of information from Americans to a changing threat, we must
be sure to also do the same for the checks and accountability
mechanisms we have to protect the privacy and liberties of
Americans.
The FBI’s misuse of NSLs is one example of the need for clearly
defined procedures and careful controls when collecting and using
domestic intelligence, but we must be just as vigilant in other
areas. Data mining, use of satellites to collect domestic
information, biometrics, fusion centers – these all are tools for
national security, but each is fraught with the potential for
privacy invasions and harm to Americans’ liberties. The Congress
has a responsibility to be sure that these domestic intelligence
tools are used only with the proper controls and checks to ensure
oversight and accountability.
I look forward to hearing from our witnesses this morning.
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