Department of Justice Corrective Actions on the FBI's Use of National Security Letters

Mar 20, 11:57 AM

Current Headlines: To: LEGAL AFFAIRS EDITORS

Contact: U.S. Department of Justice, +1-202-514-2007, http:// www.usdoj.gov

WASHINGTON, March 20 /PRNewswire-USNewswire/ -- Nearly two weeks ago, the Attorney General commended the work of the Inspector General in uncovering serious problems in the FBI's use of National Security Letters (NSLs). The Attorney General and the Director of the FBI agreed that that such mistakes would not be tolerated, and the Attorney General ordered the FBI and the Justice Department to put in place safeguards to ensure greater oversight and controls over the use of NSLs.

Since that time, the FBI and Justice Department have moved expeditiously to implement the recommendations of the Inspector General's report and to create additional safeguards to ensure that NSLs are used properly. Below are some of the actions that the FBI and Justice Department have taken to date and will be taking in the near future to address these shortcomings:

New Oversight and Auditing of the FBI's Use of NSLs

-- "Initial Audit" -- Last Friday, the FBI's Inspection Division launched

a retrospective audit of the use of NSLs in all 56 FBI field offices

nationwide. The FBI consulted with and received input from the Justice

Department's National Security Division (NSD) and the Department's

Chief Privacy and Civil Liberties Officer (CPCLO) in developing its

plan for the audit, which is based upon the Inspector General's

methodology for identifying potential Intelligence Oversight Board

(IOB) violations. While this audit is being led by the FBI's

Inspection Division, the Justice Department's NSD and CPCLO are also

participating in the audits at various FBI field offices.

-- "Regular Audits Going Forward" -- Starting next month, the Justice

Department's NSD, in conjunction with the CPCLO, the FBI's Inspection

Division and the FBI's Office of General Counsel, will begin conducting

comprehensive reviews of the use of NSLs at FBI headquarters and in

field offices around the country. It is expected that the findings of

the FBI's initial audit will inform the process of these ongoing

reviews. This is a new level of oversight by Department of Justice

lawyers with years of experience in intelligence and law enforcement.

Prohibition on the Use of "Exigent" Letters

-- On March 5, 2007, the FBI issued a Bureau-wide directive prohibiting

the use of the exigent letters described in the Inspector General's

report. All FBI field offices have been asked to identify any use in

their office of an exigent letter or anything akin to an exigent

letter.

-- The FBI Director in February 2007 ordered an expedited review by the

Inspection Division of the unit that issued the exigent letters

described in the Inspector General's report, for the purpose of

determining management accountability.

-- The NSL audits described above will also include a review of whether

exigent letters described in the Inspector General's report were issued

in other FBI field offices.

-- The Associate Deputy Attorney General and the Justice Department's

Office of Professional Responsibility are also examining the role FBI

officials played in the use of NSLs and exigent letters.

New Oversight of FBI-Reported IOB Violations

-- The Justice Department's NSD will now review all Intelligence Oversight

Board (IOB) violations that the FBI reports to the IOB. When reviewing

these IOB referrals from the FBI, the NSD will promptly notify the

Attorney General if it appears that the incident suggests the need for

a change in policy, training or oversight mechanisms. The NSD will

also report to the CPCLO any IOBs that raise serious civil rights or

privacy issues.

-- The NSD will also report to the Attorney General every six months on

all IOB referrals reported by the FBI during the preceding six- month

period. This mechanism will help identify trends and potential future

problems.

New Measures to Address NSL Tracking

-- In early 2006, the FBI began developing a new NSL tracking database.

The Web-based system will be piloted in the FBI's Washington Field

Office in the summer of 2007 and will be deployed to four large field

offices in late 2007. The new system will include a field that will

identify whether the NSL recipient complied with the request and will

possibly allow for entry of notes or comments on the response.

-- Until the new system is deployed, FBI field offices will report monthly

on NSLs that have been issued. The FBI Office of General Counsel will

ensure that the NSLs comply with applicable statutes, guidelines, and

policies.

-- To obtain a better accounting of past use of NSLs and correct

inaccuracies in past Congressional reports, the FBI Director has

ordered an intensive process to query other computer systems to locate

files where NSLs may have been issued but not reported to FBI Office of

General Counsel for inclusion in its tracking database. In addition,

the FBI Office of General Counsel is correcting any data entry errors

in the existing database. The Attorney General has also mandated that

the Justice Department's NSD and CPCLO advise him on additional steps

that should be taken to correct the inaccurate numbers reported to

Congress.

-- On March 5, 2007, the FBI issued a new policy requiring the retention

of copies of signed NSLs.

New Training and Guidance on NSLs

-- The FBI will re-issue comprehensive guidelines throughout the Bureau

concerning the proper use of NSLs. The FBI Office of General Counsel

will evaluate existing guidance and make necessary revisions in

consultation with the Department of Justice's National Security

Division.

-- The FBI has begun developing a new training course on the proper use of

NSLs that will be available to FBI personnel through the Internet.

After the course development is complete, the FBI will issue a

directive mandating training for all Special Agents-in-Charge,

Assistant Special Agents-in-Charge, as well as all appropriate FBI

agents and analysts.

-- In the meantime, the FBI has ordered that anytime an FBI Office of

General Counsel attorney is traveling in the field for any reason, the

attorney must schedule mandatory NSL training. The FBI will consider

whether additional training on NSLs for new agents is needed.

-- The Justice Department's Executive Office of U.S. Attorneys will review

its existing training materials and guidance for terrorism

investigations and prosecutions to ensure that NSLs are properly

described in such materials.

New Oversight of the Use and Retention of NSL-Derived Information

-- A working group co-chaired by the Office of the Director of National

Intelligence and the Justice Department's CPCLO has been convened to

examine how NSL-derived information is used and retained by the FBI.

The FBI's Privacy Officer as well as a representative from the Justice

Department's NSD will be represented on this working group. The

working group will examine how the NSL records are stored and

disseminated and determine the retention practices of other agencies

with NSL authorities.

Review of Role of FBI's Division Counsel

-- The Justice Department's NSD and the FBI have begun examining whether

the FBI's organizational structure should be changed to have FBI's

Division Counsel in field offices report to the FBI's Office of General

Counsel in Headquarters rather than to field office Special- Agents-in-

Charge.

Proposed Legislation

-- The Inspector General recommended in its report that the term "toll

billing records information" in the Electronic Communications Privacy

Act NSL statute be clarified. The Justice Department and FBI are

developing a proposal to address this concern.

Future Oversight

-- The Attorney General has asked the Inspector General to report to him

in four months on the FBI's implementation of the recommendations

contained in the Inspector General report.

SOURCE U.S. Department of Justice

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