FBI Director Robert Mueller blames poor training and supervision for the bureau's Patriot Act abuses and promises new training programs. He might want to sign up for the first class himself.
Mueller misstated a key provision of the act in appealing to Congress this week for new authority that was actually granted last year.
"I think he was using old talking points," quipped Georgetown law professor Viet Dinh, who drafted the original Patriot Act in 2001 while serving in the Justice Department.
The director's gaffe came during a high-stakes moment for the FBI and for him.
Justice Department Inspector General Glenn Fine found 48 violations of law or rules during 2003-2005 in the bureau's use of documents known as national security letters to acquire telephone, e-mail and financial records about Americans and foreigners without a judge's approval.
Fine estimated there could be 3,000 more such violations among the more than 143,000 requests for information during that period.
At a Senate Judiciary Committee hearing Tuesday, Mueller labored to persuade skeptical senators that they didn't need to reduce the bureau's authority under the Patriot Act to fix the problems.
He emphasized that the inspector general found no intentional violations but instead attributed them to "mistakes, carelessness, confusion, sloppiness, lack of training, lack of adequate guidance and lack of adequate oversight."
Mueller assured senators he could curb the violations by providing better training and supervision, among other steps. And he shouldered some blame himself, particularly for not instituting compliance audits to be sure proper procedures were being followed.
Enforcement mechanism already in esistence
Then Sen. Sheldon Whitehouse, D-R.I., asked him if it would be useful to adopt some procedures used for issuing administrative subpoenas, which agents can use to demand records in health care fraud or drug diversion cases without prior judicial approval.
"I would give up NSLs for administrative subpoenas," Mueller responded. "I say that because, in the regime of administrative subpoenas, there is generally opportunity for the recipient to contest it in court, on a variety of reasons. But there also is the opportunity for the government to enforce it in court. We do not have an enforcement mechanism for national security letters."
But the reauthorization of the Patriot Act a year ago provided just such an enforcement mechanism. It provided that if a company refused to provide the requested records, the Justice Department could get a federal court order requiring compliance and contempt of court penalties for further resistance.
"He misspoke," said FBI spokesman John Miller. "He was operating on the standard that existed before the renewal where the enforcement mechanism was not clearly defined."
James Dempsey, policy director of the Center for Democracy and Technology, a civil liberties group that wants prior judicial approval for the letters, thought the error undercut some of Mueller's case.
"The FBI director doesn't know the law that he's enforcing," Dempsey said. The inspector general and Mueller are arguing that this is a problem of poorly trained lower level agents, "and the guy responsible for implementing the law and the inspector general's recommendations still doesn't understand the law."
Changes in the rules
Mueller's statement would have been accurate before the Patriot Act renewal.
Although not widely known, before then, if the FBI sent a national security letter demanding records, the recipient was free to ignore the request. Not that that was a big problem.
"Only the librarians ever fought them," said Dempsey. "No bank or telephone company would say `no' when an agent comes in and says this is needed for a national security investigation."
The FBI dropped its request for records of a computer at a Connecticut library after the librarians resisted last year.
National security letters, first authorized in 1986, can be used to acquire e-mail, telephone and travel records and financial information, like credit and bank transactions.
In 2001, the Patriot Act eliminated any requirement that the records belong to someone under suspicion. Now an innocent person's records can be obtained if FBI field agents consider them relevant to an a terrorism or spying investigation.