SECRECY AT FAULT

One of the most interesting revelations from congressional hearings on the FBI’s mishandling of the expansive powers it gained under the Patriot Act was that the secrecy necessitated by the act was a source of many of the problems. If the process had been more open, the bureau’s general counsel told lawmakers, many of the problems would likely have been discovered. This is a good argument for more openness and one that should be kept in mind as lawmakers review the Patriot Act.

Testifying before the House Judiciary Committee recently, FBI General Counsel Valerie Caproni said that FBI misconduct in criminal cases is often revealed by defense lawyers and federal judges. National security investigations, however, are not subject to this scrutiny so misconduct and mistakes are not as readily apparent.

The Justice Department’s inspector general, Glenn Fine, found numerous instances of the FBI violating the law by claiming emergency circumstances or ongoing investigations when none existed. Poor record keeping made it impossible to track how often the bureau used its new powers, Mr. Fine said, although he told the House Judiciary Committee that the FBI may have violated government rules and laws up to 3,000 times since 2003.

National security letters were a major focus of Mr. Fine’s report, which was required by Congress when it re-authorized the Patriot Act last year. The letters allow the FBI to obtain personal information, such as telephone and credit card records, without court approval as part of an ongoing investigation.

In 2000, the FBI issued approximately 8,500 national security letters. After passage of the Patriot Act, that jumped to 39,000 letters in 2003 and 56,000 in 2004 before decreasing to 47,000 in 2005, according to FBI data. The inspector general, however, said the post-Sept. 11 numbers were inaccurate because the agency data on national security letters was incomplete. After Sept. 11, the percentage of letters issued to obtain information about Americans grew substantially to 53 percent of requests in 2005.

The FBI obtained telephone billing records and subscriber information from three telephone companies using more than 700 “exigent letters,” which are meant for emergency situation. The agency used the letters in nonemergency circumstances, sometimes without an ongoing investigation or subpoenas, as required under the Patriot Act.

In other instances, typographical errors allowed the agency to obtain information on the wrong individuals. In others, the recipient of the letters provided information on the wrong person or provided prohibited information, such as voice messages. The FBI kept this information.

Although Mr. Fine said the violations were the result of mistakes, confusion and lack of training – not malicious intent – lawmakers issued stern, but appropriate, warnings: If the FBI did not fix the situation they would have to consider reining in its powers under the Patriot Act.

Among those fixes should be more oversight, the type of checks and balances that Ms. Caproni said kept other investigations in check.