FBI spy powers face new Capitol Hill scrutiny

Bureau's chief tries to blunt concerns about misuse of secret requests for phone and e-mail logs, as politicians propose reining in the practice.

Anne Broache Staff Writer, CNET News.com
Anne Broache
covers Capitol Hill goings-on and technology policy from Washington, D.C.
Anne Broache
3 min read
WASHINGTON--The FBI's chief on Thursday attempted to defuse lingering concerns about abuse of secret requests for telephone and e-mail logs, as politicians proposed new limits on the practice.

Director Robert Mueller's afternoon appearance before a U.S. House of Representatives Judiciary oversight committee highlighted the lingering fallout over a Justice Department inspector general report issued earlier this year. That inquiry found the FBI underreported its use of a secret surveillance tactic--called a national security letter--and concluded "serious misuse" had occurred.

Mueller told the committee that he "absolutely understands" the concerns raised by the report, although he emphasized there were no findings of "intentional" attempts by FBI agents to sidestep the law. Since then, the agency has been implementing "numerous reforms," including retraining its agents and their supervisors on how and when to use the letters and establishing an internal program to monitor "compliance," he added.

The FBI's planned actions apparently weren't satisfactory for some politicians who have dogged the Bush administration's surveillance techniques in the past. Just before Thursday's hearing, Reps. Jerrold Nadler (D-N.Y.) and Jeff Flake (R-Ariz.) introduced a new bill designed to place checks on the tool's use and to give Americans more recourse to respond to them.

The 2001 Patriot Act gave the FBI expanded ability to use those letters to obtain confidential information on Americans from banks, credit card companies, credit bureaus, telephone companies and Internet service providers. The letters, which do not require court approval, rely on the investigator's certification that the request is "relevant" to a probe. Recipients are generally not allowed to disclose the document's existence, except to an attorney or others approved by the FBI.

"My expectation is we will find we have taken the steps necessary to ensure this (misuse) is not happening."
--FBI Director Robert Mueller

The new Nadler-Flake measure, called the National Security Letters Reform Act, attempts to scale back those powers. Among other things, it would require "specific and articulable facts" showing that records sought are related to a suspected foreign terrorist or spy, allow the letter's recipient to challenge the letter and its nondisclosure requirement, and place a 30-day limit--subject to extension per FBI request--on that "gag order," according to a copy of the bill obtained by CNET News.com.

The American Civil Liberties Union applauded the 20-page proposal, saying in a statement that it "will realign NSL authorities with the Constitution and reaffirm that Americans can be both safe and free."

It's not the first bill this year to propose changes to national security letter practices. In late March, Rep. Jane Harman (D-Calif.) introduced a shorter measure that would require such documents to be approved by the secret Foreign Intelligence Surveillance Court or a federal magistrate judge, based on a similar standard to that in the Nadler bill.

Mueller on Thursday continued to defend the necessity of the national security letter authority his bureau currently possesses. Raising the bar for issuing such letters would "preclude us from doing exactly what we need to do" in fast-moving terrorism investigations, he said.

Rep. James Sensenbrenner (R-Wis.), the Patriot Act's chief architect, told Mueller he was concerned that the botched use of national security letters was "bringing down support" for the existing law. He pressed the FBI chief to detail how the agency knows its new policies for use of the letters are truly making a difference.

"My expectation is we will find we have taken the steps necessary to ensure this (misuse) is not happening," Mueller replied.

The FBI head also fielded more questions about the agency's well-documented computer upgrade woes. Congresswoman Zoe Lofgren (D-Calif.) said she was concerned that immigrants seeking citizenship or permanent residence in the United States were being slowed because of inefficiencies in the FBI's background-check process directly linked to outdated machines.

Mueller said the agency in June rolled out the first phase of its Sentinel modernization project, which provided a Web-based interface for agents to the FBI's mainframe records systems.

But he acknowledged there are "still miles of records out there that have not been digitized." He added that the agency hopes next year to open "one of the most modern records-handling facilities in the country" in Winchester, Va.

"I ought to think that should be one of the highest budget priorities you have," Lofgren said of the computer upgrade project. "It will give power to your agents in ways that will far exceed the funding necessary to do that in six months' time."