The FBI’s flagrant abuse of secret national security letters is a disgraceful episode that clearly calls for additional oversight. But more importantly, the FBI has to change the ethos within the agency that allowed such vigorous misuse of authority. There should be no question: The FBI must act within the law.
The issue came into focus as a result of an internal investigation with shocking results. The Justice Department’s inspector general released a report showing the FBI routinely abused its authority to obtain private records. The only reason the problems came to light is because Congress required a national security letter audit before it would reauthorize the Patriot Act.
National security letters enable FBI agents to obtain a person’s telephone, e-mail and financial records without the permission of a judge or grand jury, so long as national security is involved.
The letters originated in the late 1970s as an exception to privacy protections. Congress directed they be used to investigate intelligence operations of foreign governments. However, the Patriot Act relaxed the standards needed to get the letters and broadened their use. Now, they could be used on anyone so long as records are “sought for” or “relevant to” a national security inquiry.
In many cases, FBI agents didn’t bother to try to meet that lower standard. Justice Department Inspector General Glenn Fine found that agents inappropriately used a provision allowing them to claim emergency or “exigent” circumstances in getting the letters. There were other abuses, including gathering much more information than agents were legally entitled to.
“It really was unacceptable and inexcusable what happened here,” Fine said in testifying this week before the House Judiciary Committee.
The pattern bespeaks a cavalier indifference to law and civil liberties. FBI director Robert Mueller publicly took responsibility for the agency’s failing, and he should. Mueller spoke about the importance of national security letters and rightly promised closer supervision and better accountability. He must make clear to his subordinates that he won’t tolerated abuse of this capability.
Members of Congress have proposed greater auditing and reporting requirements for the FBI. And they’ve threatened to change the law and take away the agency’s power to use national security letters. Those are important steps to consider. But they’re no substitute for an FBI that operates with the understanding that great power comes with the responsibility to exercise it appropriately.
