Senators won't take away FBI surveillance power

Top Democrats and Republicans say they prefer oversight, rather than repealing part of Patriot Act used by FBI for illegal monitoring.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read
The FBI's illegal use of secret methods to obtain confidential information, including telephone and e-mail records, on American citizens, drew criticism from a U.S. Senate panel on Wednesday.

But the committee's senior members stopped short of calling for a repeal of the portion of the Patriot Act, which Congress hastily approved after September 11, 2001, that awarded the FBI broad and nearly unchecked powers to use the so-called national security letters, which are written requests for confidential information that do not require a judge's signature and cannot legally be disclosed by the recipient.

"I have long been troubled by the scope of national security letters and the lack of accountability for their use," said Sen. Patrick Leahy, a Vermont Democrat and the chairman of the Judiciary committee. Leahy's hearing follows a similar one a day earlier in the House of Representatives.

While Leahy called the FBI's missteps "egregious errors and violations," and noted that FBI Director Robert Mueller and Attorney General Alberto Gonzales are expected to testify in the next few weeks, he did not propose any mandatory judicial oversight.

National security letters came under Washington's klieg lights earlier this month after the Justice Department's inspector general reported "serious misuse" of the investigatory tool. The 2001 Patriot Act expanded the FBI's ability to use those letters to obtain confidential records from banks, credit card companies, credit bureaus, telephone companies and Internet service providers.

In the current political climate, with a constitutional showdown possible over federal prosecutors being fired in what some say was an attempt to thwart prosecutions, revisiting the Patriot Act is conceivable. The U.S. Senate voted 94-2 on Tuesday to rewrite the section of the law dealing with prosecutors' tenure, amended during negotiations over renewing the Patriot Act.

During Wednesday's hearing, Senate Republicans chided the Bush administration too, though much less harshly. "It is a little hard to understand why the FBI is only now moving for internal audits on these national security letters," said Sen. Arlen Specter of Pennsylvania.

Sen. Orrin Hatch, a Utah Republican, was less willing to offer even mild admonishments. He asked Justice Department Inspector General Glenn Fine, who was testifying: "Do you expect them to be perfect, the FBI agents?"

Fine's report found a pattern of misconduct throughout the FBI, including agents concealing their use of national security letters from Congress, a dramatic increase in U.S. citizens and residents being targeted, and misuse of the letters to obtain information that only a judge may approve for release.

The report did say, however, that there was no evidence that the FBI agents' unlawful activities "constituted criminal misconduct." Unlike conducting an unlawful wiretap, which is a federal felony, unlawful use of national security letters carries no criminal penalties.

The closest any senator came to calling for rewriting the Patriot Act was a remark by Russ Feingold, a Wisconsin Democrat. He said it was a "grave mistake" to give such powers to the FBI and said it was not surprising they had been misused.

Feingold was the only senator to vote against the Patriot Act in October 2001.

"Congress needs to exercise extensive and searching oversight of those powers, and it must take corrective action," Feingold said. "The government cannot be trusted to exercise those powers lawfully. Congress must address these problems and fix the mistakes it made in passing and reauthorizing the flawed Patriot Act."

Also on Wednesday, the Electronic Privacy Information Center sent a letter (click for PDF of the EPIC letter) to the Senate asking that the section of the 2001 Patriot Act that expanded use of national security letters be repealed.

The FBI has been caught conducting illegal wiretaps as well. CNET News.com reported earlier this month that the FBI submitted false documents to a court when seeking authorization to perform wiretaps.