Friday, March 09, 2007

Friday Bush Administration Bad News: FBI abused power to obtain business and personal records without prior judicial approval


The Justice Department Inspector General's Office now reports (here and here) that the FBI abused the administrative subpoena process, by which FBI agents can demand personal records without having to appear before a neutral magistrate. This is not the first time that the FBI's practices have come under scrutiny.

As usual with bad news from the Bush Administration, this material comes out on Friday in order to dampen media coverage. From the New York Times:

The F.B.I. has improperly used provisions of the USA Patriot Act to obtain thousands of telephone, business and financial records without prior judicial approval, the Justice Department’s inspector general said today in a report that embarrassed the F.B.I. and ignited outrage on Capitol Hill.

The report found that the bureau lacked sufficient controls to make sure that its agents were acting properly when they obtained records using administrative subpoenas, which do not require a judge’s prior approval. And the report found that the bureau does not follow some of the rules it does have on the matter.

Robert S. Mueller III, the director of the Federal Bureau of Investigation, called a news conference today to accept responsibility for the lapses, and to pledge his best efforts to see that they are not repeated.

“How could this happen?” Mr. Mueller asked rhetorically. “Who is to be held accountable? And the answer to that is, I am to be held accountable.”

Under the USA Patriot Act, the bureau has issued more than 20,000 demands for information known as national security letters. The report concluded that the program lacks effective management, monitoring, and reporting procedures.
You may recall that one of the effects of the USA Patriot Act was to ease the standards for obtaining records without a warrant. By easing the standards for issuing national security letters, it became even more imperative for someone outside the executive branch to make sure that these new powers were not being misused. However, you may also recall that one of the Bush Administration's infamous signing statements maintained that the Administration could refuse to provide information to Congress necessary for oversight of the FBI's use of national security letters under the USA Patriot Act.

I suspect it is time for a little Congressional oversight.


Sounds like the DOJ/OIG has some integrity, refreshing. There's only one solution, Glenn A. Fine will be fired and replaced with a Rove flunky.

As usual with bad news from the Bush Administration, this material comes out on Friday in order to dampen media coverage.

Or, to paraphrase my favorite TV show, "Bush's in trouble? Must be Friday."

Best not to refer to the investigative techniques discussed in these reports as "administrative subpoenas." The first OIG report you link concerns "national security letters" (principally authorized in 18 USC 2709). These can be issued by the FBI directed to "wire or electronic communication service provider[s]" and, under another similar provision, credit reporting services, for national security investigative purposes. Because they are issued by an agency without judicial approval, and are compulsory (unless challenged in court), they do operate as a sort of administrative subpoena or summons, although that's not what they're called. The second concerns requests for "business records" under sec. 215 of the PATRIOT Act, the provision popularly reviled as the "library records" power. This section authorizes applications for production orders from the FISA Court, not any sort of administrative summons or subpoena. Neither of these, supposedly, is for use in a criminal investigation. The FBI does (disturbingly) have authority to issue "administrative subpoenas" under 18 USC 3486(a)(1)(A), without court review, in the investigation of any federal health care office or child sexual exploitation or abuse case.

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