S. Hrg. 110-27 MISUSE OF PATRIOT ACT POWERS: THE INSPECTOR GENERAL'S FINDINGS OF IMPROPER USE OF THE NATIONAL SECURITY LETTERS BY THE FBI ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS FIRST SESSION __________ MARCH 21, 2007 __________ Serial No. J-110-19 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 35-246 WASHINGTON : 2007 _____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512ÿ091800 Fax: (202) 512ÿ092250 Mail: Stop SSOP, Washington, DC 20402ÿ090001 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma Bruce A. Cohen, Chief Counsel and Staff Director Michael O'Neill, Republican Chief Counsel and Staff Director C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 7 Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin,..................................................... 9 prepared statement........................................... 66 Feinstein, Hon. Dianne, a U.S. Senator from the State of California..................................................... 6 Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, statement and letters.......................................... 81 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1 prepared statement........................................... 92 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania................................................... 3 WITNESS Fine, Glenn A., Inspector General, Department of Justice, Washington, D.C................................................ 8 QUESTIONS AND ANSWERS Responses of Glenn Fine to questions submitted by Senators Leahy, Grassley and Feingold.......................................... 36 SUBMISSIONS FOR THE RECORD American Civil Liberties Union, Caroline Fredrickson, Director, Washington Legislative Office, Washinton, D.C., statement...... 56 Fine, Glenn A., Inspector General, Department of Justice, Washington, D.C., statement.................................... 67 MISUSE OF PATRIOT ACT POWERS: THE INSPECTOR GENERAL'S FINDINGS OF IMPROPER USE OF THE NATIONAL SECURITY LETTERS BY THE FBI ---------- WEDNESDAY, MARCH 21, 2007 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 10:07 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse, Specter, Hatch, Grassley, Kyl, and Cornyn. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman Leahy. Good morning. I want to welcome Inspector General Fine to the Committee's hearing today. The Inspector General has been here many times, and he has earned the respect of people on both sides of the aisle for the important work his office has done in shining a light in a number of areas, but especially one that has concerned me--the abuses of the broad powers that we in Congress gave the FBI to obtain information through National Security Letters. We all know how important National Security Letters can be. We also know how easy it is and how great the temptation can be to abuse them. Six years ago, in the wake of the September 11th attacks, when I was Chairman of this Committee, I worked very hard with members on both sides of the aisle to ensure that the Government had the powers it needed to protect us from terrorism. I knew that we had to balance our rights so that the Government did not abuse its powers or needlessly invade the privacy of Americans. In the years since, the Government's powers have increased steadily. One safeguard I fought hard to keep in the 2005 PATRIOT Act reauthorization was a mandate for this review by the Department of Justice Inspector General of the FBI's use of National Security Letters. Some of us wanted more safeguards, but this was the best we could get to at least have a review so we would know how they were used. So keeping the PATRIOT Act's sunset provisions and adding new sunshine provisions to improve oversight and accountability were among my highest priorities during that reauthorization process. Fortunately, the then- Chairman of the Committee, Senator Specter, felt the same way, and we insisted together on this Inspector General review. I am glad we insisted on the review. It is good news and bad news, though. The good news is I am glad we insisted on it. The bad news is what came out in the review. We actually would not know of the errors and violations that have been documented--extending back years--if not for the sunshine requirements we put in. So now we have to get to use our oversight to find out what went wrong, what needs to be done to prevent them from recurring. We have scheduled an oversight hearing with the FBI Director for March 27th. We are planning a hearing with the Attorney General in April. And, of course, we will hold whatever hearings are necessary. I am troubled by the scope of the National Security Letters and the lack of accountability for their use, and these concerns appear to be well founded. The NSLs, the National Security Letters, allow the FBI--for those who are not familiar with what they are, they allow the FBI to request sensitive personal information--phone toll records, e-mail transaction records, bank records, credit records, and other related records--without a judge or a grand jury or even a prosecutor evaluating the requests. And Congress expanded the scope of the information the FBI could request and reduced the procedural and substantive requirements for the FBI to use them. So we have to ask: Did the Congress go too far? Now, the Inspector General's report found that of the more than 143,000 National Security Letter requests the FBI issued from 2003 to 2005, the FBI field divisions in their self- reporting said there were only 26 possible violations of the law and policy. The Inspector General found almost as many violations in his review of just 77 of them. None of the errors the Inspector General found had been self-reported by the FBI, and the FBI has massively failed to find or report its own mistakes. Documentation was missing or inadequate in 60 percent of the files the Inspector General looked at. I was particularly distressed by the Inspector General's findings about the FBI's use of so-called exigent letters. The FBI sent these letters, which are not authorized anywhere in any statute, in at least 739 instances to telephone companies in place of NSLs or grand jury subpoenas. Basically, they told the telephone companies: This is an emergency, so give us these records voluntarily, without the regular process. And they went on to say, ``Subpoenas requesting this information have been submitted to the U.S. Attorney's Office who will process and serve them formally.'' The point is that was not honest. No subpoenas had been submitted. Sometimes the letters were followed up with an NSL, sometimes they were not, and sometimes the FBI did not know one way or the other. The letters were often sent by FBI personnel who were not even authorized to sign NSLs. These abuses are unacceptable. We cannot have the FBI requesting information under false pretenses and proceeding with total disregard for the law. Nobody is above the law, especially those in charge of law enforcement, sworn law enforcement officers. They, of all people, have to follow the law. And that continued into 2006 despite the FBI's Office of General Counsel becoming aware of it in 2004. That is unacceptable. So I want to make clear that it is not a matter of technical violations. These were private and personal information about Americans and others, including phone numbers, bank records, and credit information. We may not be able to get the genie back in the bottle, but we are going to see what we can do. When I voted against the PATRIOT Act reauthorization, I explained, ``Confronted with this administration's claims of inherent and unchecked powers, I do not believe that the restraints we have been able to include in this reauthorization of the PATRIOT Act are sufficient.'' I wish I could say I was wrong. I do not think I was. I will put the rest of my statement in the record, and I am sorry I did not notice the clock. [The prepared statement of Chairman Leahy appears as a submission for the record.] Chairman Leahy. I will yield to Senator Specter. STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Senator Specter. Thank you, Mr. Chairman. Before taking up the issue at hand, I think it important to make a few comments about the pending investigation by this Committee on the issue of United States Attorneys. First, I thank the Chairman for calling me yesterday to bring me up to date on his conversation with the Attorney General yesterday, and the issues came into different focus with the President's statement on television yesterday afternoon at 5:45. And I would urge my colleagues to rethink the issue as to how we are going to proceed with this investigation as to the request for resignations of the eight United States Attorneys. It is obviously indispensable to find the facts to see if the Department of Justice acted properly or improperly. That raises the issue as to what is the best way to find those facts. We have had an offer from the President to submit the three key White House officials under a less formal process than having them before the Committee sworn in regular order. I think it is important to note the letter that Senator Leahy and I sent to the three individuals on March 13th, where we said we would like to work out a process for interviews, depositions, or hearing testimony on a voluntary basis. The President has responded, taking us on the suggestion, by way of interviews on a voluntary basis. The Chairman has responded that he believes it necessary to have the witnesses before the Committee in regular order and under oath. And that is the prerogative of the Judiciary Committee, as any Congressional Committee can vote subpoenas out on a majority vote. The question is: What will that do for us on our effort to find the facts and deal with a very, very serious problem in the Department of Justice as to how they handle U.S. Attorneys? There has been an obviously major impact on the morale of the U.S. Attorneys across the country. There is obviously a question as to their authority and how they are going to function with respect to the risk of being asked to resign. So that is a matter which involves the administration of justice in this country on a daily basis and is of the utmost importance. Now, if we have a confrontation between the President and the Congress and we go to court, which is the way these matters have been resolved if there cannot be an accommodation, we face very, very long delays. The most recent landmark decision on the scope of Executive privilege and what Congress may do by way of compelling testimony is the circuit court opinion In Re Sealed Case, D.C. Circuit of 1997. And without going into any detailed analysis of that case, the Office of Independent Counsel filed a motion to compel documents on June 7th of 1995, and it was not until June 17, 1997, 2 years later, that the District of Columbia Circuit ruled on the matter. And that did not even take into account the petition for cert. So, in the normal course of litigation process, if we go to court, have the confrontation, very serious constitutional confrontation, we will be looking at the year 2009, in the midst of the next Presidential term, before we will have judicial resolution. And the judicial resolution is uncertain. Our preliminary research on the scope of Executive privilege deals with two items: the deliberative process and the Presidential communication privilege. And the courts have said that it depends upon the facts. So it is unpredictable whether the President will prevail or the Congress will prevail. Now, it had been my hope--and, frankly, it still is--that we will not have a constitutional confrontation. And I have made the point, both publicly and privately, that there are precedents for people similarly situated to come forward and testify on a voluntary basis. In somewhat different circumstances, National Security Counselor Condoleezza Rice appeared before the National Commission on Terrorist Attacks, and National Security Counselors Berger and Brzezinski did it on a couple of occasions, and there are many, many precedents for not challenging on the basis of Executive privilege. At the same time, I think it is important to note that if these individuals come forward voluntarily, they do not do so without risk if they do not tell the truth. The criminal statutes under 18 U.S. Code 1001 provide a tough penalty--I think it is equivalent really to the perjury statute--for making a false statement. Now, it would be preferable to have the matter transcribed, but the FBI has brought many cases for false official statements just with note taking. And on the President's suggestion, there is nothing to stop the Congress from having a stenographer present, although not the traditional court reporter, to make a record. My own preference is that it be public because I think the public has a very deep-seated interest and a right to know what is going on. Also, if it is done behind closed doors and then Senators emerge and are interviewed, you are likely to get conflicting accounts as to what was said. Well, those are all matters that I think ought to be considered and ought to be the subject of discussion and accommodation if we can find it. I am going to await judgment on my own vote in Committee-- we will be taking this up tomorrow--until I have a chance to reflect on it further and talk to my Committee colleagues on both sides of the aisle. But I come back to the essential question of finding the facts, and I would not like to see a 2-year delay or more before we find these facts because the efficiency and the viability of our United States Attorneys hangs in the balance until we clear this up. Well, it seems we go from one crisis to another. Last week, the crisis was the National Security Letters, and that was superseded by the U.S. Attorneys, and I do not know what will supersede it the balance of this week. But this issue is one of enormous importance. Yesterday in the House of Representatives, both Republicans and Democrats chastised the FBI, the sternest warnings coming perhaps from Republicans, that the FBI was in danger of losing the National Security Letters. The Chairman is exactly right that it was only the foresight of this Committee which authorized the Inspector General's reports so we know what is going on. It is very hard to understand why the FBI has not acted. It is a little hard to understand why the FBI is only now moving for internal audits on these National Security Letters. And I would suggest that the FBI faces a greater risk on its investigative authority in intelligence matters than losing National Security Letters. I think the FBI is at risk of losing its jurisdiction on the entire field. There has been a lot of debate as to whether the FBI is competent to handle these matters in terms of training all the agents that start off on law enforcement. And the scholars and members are taking another look at the issue of going to the British model of MI5, so that when we have Director Mueller next week, we will be looking for some firm answers if we are to leave National Security Letters available to the FBI and if we are to leave the FBI in charge of a facet of U.S. intelligence. Mr. Chairman, I regret going over time. Chairman Leahy. No, no, no. Senator Specter, you are one of the longest-serving members of this Committee, like me, and we have worked very closely together over the years to try to get the answers to these issues, whether it has been Republican or Democratic administrations. You speak of possibly it taking until the year 2009, but you and I will still be here. Senator Specter. But who will be the Chairman, Mr. Chairman? [Laughter.] Chairman Leahy. One of us will. [Laughter.] Senator Specter. I think either way the Committee will be in good hands. Chairman Leahy. Well, thank you. I appreciate that. But, you know, the concern I had on the question you raised, I will just briefly -and I know Senator Feinstein wanted to say something. But we saw the offer. Mr. Fielding and I met for the first time yesterday. He seems like a very experienced and fine lawyer. And we talked about this, and I received the offer he made. But that is still an offer to talk to a few Members of Congress behind closed doors, with no record for the public to see, not under oath, on a very limited number of issues. My proposal is to have it in public with both Republicans and Democratic members of this Committee, and we have superb members on both sides of the aisle who can ask the questions, and the public will know what is going on. There have been too many closed-door hearings where we have gotten inadequate and many times misleading information. Let's have it in public. Let's find out what is going on, allow both Republicans and Democrats to ask the questions, have them under oath, and clear this matter up. It is far too important for law enforcement and our country to know what is going on. The Chairman and I are both former prosecutors. We know the importance of independence of the prosecutor's office. We want to get to Mr. Fine, but Senator Feinstein asked to make a short comment. STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator Feinstein. If I may, Mr. Chairman, and I apologize to Mr. Fine, who is here. But this is a big issue, I think far bigger than we have ever seen up to this point. Mr. Chairman, you have negotiated with Mr. Fielding. I have read his letter. Frankly, it is not acceptable. You have made very clear statements which have been carried on nationwide television about where this Committee is, that any testimony will be done in public, under oath, and recorded. I think that is appropriate. And I believe very strongly that we should stand by that statement. Tomorrow we will have a chance to do so. I very much hope we will. I remember a private interview sitting at this table down here with Mr. McNulty when the issue was the performance of these U.S. Attorneys. I recall what he said. In many respects, I wish that could have been public because then the performance reports were revealed, and it turned out that the performance reports of the very people he was saying were being terminated on the basis of performance were all excellent. Well, the public is entitled to know that information, I believe. And now the issue has been joined, and the White House is in a bunker mentality, won't listen, won't change. I believe there is even more to come out, and I think it's our duty to bring that out. I happened to hear my very distinguished colleague from Texas on the floor speaking about the President's right to make appointments. And, yes, we all know the President has the right to make these appointments. But pattern and practice plays a role, and virtually every administration has fired U.S. Attorneys of a prior administration and put in their own. But once they are in, by and large they have remained. There never in history has been a time when the phone was picked up on 1 day and a number were fired and no cause was given. They were fired and terminated, essentially. They were told to leave office by January the 15th, and no explanation was given. And then we were given one explanation, and then that explanation changed. Well, the performance may be good, but we do not have confidence. And then that explanation was changed to we can do better. And it has been a slippery slope of explanations. And I think we need to look more deeply into this. Six of the seven who were called on that very day--and there are others--were involved in public corruption cases, either the investigation or the carrying out of open public corruption cases. And I think we have an obligation to know what was the genesis of this move. Why was this put together in the way in which it was? I do not believe we will get that in a private interview, unrecorded, with people not under oath. I really do not. And, yes, I am angry because we have had the San Diego U.S. Attorney, an excellent one, terminated. Shortly during that time, the Los Angeles U.S. Attorney resigned. I do not know whether she was asked to resign or not, but the fact is she did. We are a big State. These are big jurisdictions with big cases ongoing. And I care very much that the right reasons prevailed here. So my point is that I am one that urges you to be strong. You have laid out the parameters. I think they are the correct parameters, and we should issue those subpoenas. Chairman Leahy. Thank you. Well, the subpoenas will be voted on tomorrow, and I have tried to be very clear in what I intend to do. And I think after 32 years here, people know that I do what I say I am going to do. Only because Senator Cornyn was mentioned in this, I will yield just briefly to him, in fairness to Senator Cornyn, and then we must get to Mr. Fine. STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS Senator Cornyn. Mr. Chairman, thank you very much, and I will try to be brief. You know, what seems surreal about this is that the Clinton administration terminated 93 U.S. Attorneys in one fell swoop, and no one suggested--even though they were appointees of a Republican administration. No one said this is dirty politics. But when the Bush administration terminates eight U.S. attorneys that are Bush appointees, then it is claimed to be dirty politics. I do not know what the facts are, and I will join the Chairman, as we have talked about, and the Ranking Member and all members of the Committee, in an inquiry into the facts. I think we owe that to the country and to all of our constituents. But I would just ask my colleagues to be careful that this does not take on the attributes of a political circus or witch hunt because, frankly, I think that undermines the credibility of our attempt to look into the facts. I would just point out that Senator Specter cited an authority, In Re Sealed Case. On the issue of whether we ought to issue subpoenas tomorrow or not, I would just point out that in United States v. AT&T, D.C. Circuit Court, the court said, ``Judicial intervention in Executive privilege disputes between the political branches is improper unless there has been a good-faith but unsuccessful effort at compromise.'' What I hear Senator Specter saying is that is what we ought to be engaged in, good-faith discussions and compromise, not shoot first, ask questions later. So I would welcome that. Chairman Leahy. I should note on that to the Senator, I met for an hour with Mr. Fielding yesterday in that regard. I also found they had already issued or had the press release out about what was going to be their bottom line before he even talked to me and what would be the only thing they would accept before he even came in to talk to me about what they might accept. So it is not really what I have thought of as seeking an area of compromise. We will vote on the subpoenas tomorrow. Obviously, anybody can appear voluntarily, and we would not have to issue the subpoenas if they do. I would also note I have been here with six Presidential administrations. In all six, all the U.S. Attorneys that were there from the previous administration were let go, which is assumed will happen when a new administration came in. President Reagan did with President Carter's, President Clinton did with former President Bush's, this President Bush did with President Clinton's, and on and on. Senator Cornyn. Mr. Chairman, would you give me 5 seconds to say that-- Chairman Leahy. I am counting. Senator Cornyn. You and I have worked together on open government issues. I am very sympathetic to what you said a moment ago about the importance of the public seeing and hearing what is going on. And I would like to work with you on that. Chairman Leahy. Thank you. All right. Mr. Fine, I hope you have enjoyed this. [Laughter.] Chairman Leahy. Please stand and raise your right hand. Do you solemnly swear that the testimony you will give in this proceeding will be the truth, the whole truth, and nothing but the truth, so help you God? Mr. Fine. I do. Chairman Leahy. Thank you. You have been a patient man. Please go ahead. STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. Mr. Fine. Thank you. Mr. Chairman, Senator Specter, and members of the Committee, thank you for inviting me to testify about our report about the FBI's use of National Security Letters. The PATRIOT Reauthorization Act required the Office of the Inspector General to examine the FBI's use of these authorities, and on March 9th, in accord with the statute, we issued a report detailing our findings. Our review examined the FBI's use of National Security Letters, NSLs, from 2003 through 2005. As required by the Act, the OIG will conduct another review on the FBI's use of NSLs in 2006, which we must issue by the end of this year. Before highlighting the main findings of our report, I would first like to recognize the hard work of the OIG team that conducted this review, particularly the leaders of the effort: Roslyn Mazer, Patty Sumner, Michael Gulledge, and Carol Ochoa. They and their colleagues worked tremendously hard to report on this important subject on a tight deadline. I want to thank them and the other team members for their outstanding work on this report. Our report describes widespread and serious misuse of the FBI's National Security Letter authorities. In many instances, the FBI's misuse violated NSL statutes, Attorney General guidelines, or the FBI's own internal policies. We also found that the FBI did not provide adequate guidance, adequate controls, or adequate training on the use of these sensitive authorities. However, I believe it is also important to provide context for these findings. First, we recognize the significant challenges the FBI faced during this period covered by our review. After the September 11th terrorist attacks, the FBI implemented major organizational changes while responding to continuing terrorist threats and conducting many counterterrorism investigations, both internationally and domestically. Second, it is also important to recognize that in most, but not all, of the cases we examined, the FBI was seeking information that it could have obtained properly through the National Security Letters if it had followed applicable statutes, guidelines, and internal policies. Third, although we could not rule it out, we did not find that FBI employees sought to intentionally misuse NSLs or sought information that they knew they were not entitled to obtain. Instead, I believe the misuses and the problems we found generally were the product of mistakes, confusion, sloppiness, lack of training, lack of adequate guidance, and a lack of adequate oversight. But I do not believe that any of my observations excuse the FBI's misuse of National Security Letters. When the PATRIOT Act enabled the FBI to obtain sensitive information through the NSLs on a much larger scale, the FBI should have established sufficient controls and oversight to ensure the proper use of these authorities. The FBI did not do so. The FBI's failures, in my view, were serious and unacceptable. I would now like to highlight our review's main findings. Our review found that after enactment of the PATRIOT Act, the FBI's use of National Security Letters increased dramatically. In 2000, the last full year prior to passage of the Act, the FBI issued approximately 8,500 NSL requests. After the PATRIOT Act, the number of NSLs requests increased to approximately 39,000 in 2003, approximately 56,000 in 2004, and approximately 47,000 in 2005. In total, during the 3-year period the FBI issued more than 143,000 NSL requests. However, we believe that these numbers, which are based on information from the FBI's database, significantly understate the total number of NSL requests. During our file reviews in four FBI field offices, we found additional NSL requests in the files that were not contained in the FBI database. In addition, many NSL requests were not included in the Department's reports to Congress. Our review also attempted to assess the effectiveness of National Security Letters. NSLs have important uses, including to develop links between subjects of FBI investigations and other individuals, and to provide leads and evidence to allow FBI agents to initiate or close investigations. Many FBI headquarters and field personnel, from agents in the field to senior officials, told the OIG that NSLs are indispensable investigative tools in counterterrorism and counterintelligence investigations, and they provided us with examples and evidence of their importance to these investigations. The OIG review also examined whether there were any improper or illegal uses of NSL authorities. From 2003 through 2005, the FBI identified, as the Chairman stated, 26 possible intelligence violations involving the use of NSLs. We visited four field offices and reviewed a sample of 77 investigative case files and 293 NSLs. We found 22 possible violations that had not been identified or reported by the FBI. We have no reason to believe that the number of violations we identified in the field offices was skewed or disproportionate to the number of violations in other files. This suggests that a large number of NSL-related violations throughout the FBI have not been identified or reported by FBI personnel. And in one of the most troubling findings, we determined that the FBI improperly obtained telephone toll billing records and subscriber information from three telephone companies pursuant to over 700 so-called exigent letters. These letters generally were signed by personnel in the Communications Analysis Unit and FBI headquarters. The exigent letters were based on a form letter used by the FBI's New York Field Division in the criminal investigations related to the September 11th attacks. Our review found that the FBI sometimes used these exigent letters in non-emergency circumstances. In addition, the FBI failed to ensure that there were authorized investigations to which these requests could be tied. The exigent letters also inaccurately represented that the FBI had already requested subpoenas for the information when it had not. In response to our report, we believe the Department and the FBI are taking our findings seriously. The FBI concurred with all our recommendations, and the Department's National Security Division now will be actively engaged in oversight of the FBI's use of NSLs. In addition, the FBI's Inspection Division has initiated audits of a sample of NSLs issued by each of its 56 field offices. The FBI also is conducting a special investigation of the use of exigent letters to determine how and why the problems occurred there. The OIG will continue to review the FBI's use of National Security Letters, and we intend to monitor the actions that the FBI and the Department are taking to address the problems we found in our review. Finally, I want to note that the FBI and the Department cooperated fully with our reviews, agreed to declassify information in the report, and appear committed to addressing the problems we identified. We believe that significant efforts are necessary to ensure that the FBI's use of National Security Letters is conducted in full accord with the statutes, Attorney General guidelines, and FBI policy. That concludes my testimony. I would be pleased to answer any questions. [The prepared statement of Mr. Fine appears as a submission for the record.] Chairman Leahy. Thank you very much, Mr. Fine. I could not help but think, when I was reading over your testimony earlier, I wish the findings were not as they are, because I feel the FBI is very important to this country, but it also is very important to have a lot tighter control. I was disturbed by your finding that the FBI sent out more than 700 so-called exigent letters asking telephone companies to immediately provide records without a subpoena or a National Security Letter saying it was an emergency. They said that subpoenas would follow, but apparently there was no real emergency. And the FBI had not actually requested subpoenas. How can the FBI send out hundreds of such letters over the years with basically false statements in them? Mr. Fine. Well, Mr. Chairman, we believe it was an incredibly sloppy practice, and that what they had done was they took a form that applied in another context, and when they created this unit, they applied that form, unthinkingly and without adequate review or oversight of this. These forms were signed by many in this unit. From the time they started through the time they ended in 2006, over 29 individuals signed them, and it became the accepted practice. And it was really incorrect and inappropriate, in my view. Chairman Leahy. But I am just wondering if there are any grownups around here, because, you know, somebody signed them. They actually read the letter and they signed. They saw the claims of emergency. They saw the claims there was going to be a backup subpoena. They knew there was no emergency. They knew there was no subpoena. They sent the letter anyway. Isn't that kind of a willful violation? Mr. Fine. Well, in some cases there was an emergency, and there were--they couldn't tell us, though, when there was and when there wasn't. They couldn't tell us when they had followed up with NSLs and when they didn't. The telephone companies tracked it to some extent, but the FBI didn't. They had incredibly inappropriate and sloppy practices. They didn't even keep signed copies of NSLs, which we were astonished at. So we don't believe that they were intended to deceive the telephone companies because the telephone companies knew what was happening here and were cooperating with the FBI. But it is extremely troubling, I totally agree. Chairman Leahy. If you are a manager of a branch of the telephone company and you get one of these letters, you say, ``Oh, I am not going to cause any trouble. I am going to do what is being asked of me.'' Mr. Fine. Well, it wasn't to branch officials. There was a designated official. Chairman Leahy. They have an office for them. Mr. Fine. They had a certain person and individuals who worked with the FBI on this under contract. But it is an inexcusable practice. Chairman Leahy. Did any of these letters result in obtaining information to which they were otherwise not entitled? Mr. Fine. Well, it is impossible to tell that because we have asked the FBI to tie them to authorized investigations. They have since gone back and are trying to do that as we speak. In the testimony yesterday, the General Counsel said that they are able to tie most of them to authorized investigations, but they are still working on it. So there is a possibility that there was not an authorized investigation for some of these letters. Chairman Leahy. Well, let's go to just the issue--aside from any criminal or other type intent, let's set that aside for the moment and let's just talk about sloppy management. You found, if I am reading this correctly, that attorneys in the National Security Law Branch of the FBI's Office of General Counsel learned of these existent letters as early as 2004 and counseled that they modify them. But why didn't they just tell them to stop doing it or at least alert senior FBI officials to the practice? I mean, if you see something being done wrong, is there nobody in charge that says--having found that it is being done wrong, is there nobody in charge to say you ought to stop doing what is wrong? Mr. Fine. We think they should have said stop doing it or raised it higher. They made efforts to work with the Communication Analysis Unit to modify the practice, to ensure that they were tied to an authorized investigation, to do other things to ensure that these letters were appropriate, and over time the CAU did not change the practices. But, unfortunately, the OGC attorneys did not raise it to a higher level, did not raise it to the highest levels of the FBI and say we have got to stop this practice. They were trying to work with the CAU, and they did not have authority to tell the CAU to stop. On the other hand, they should have raised it higher, as you suggest. Chairman Leahy. Well, I look at it just from a statistical aspect of the 77 files your office looked at, and you found 22 violations. The FBI said they reported 26 violations, but that is out of the whole pile of these NSL letters. Am I safe in concluding from that that they did not have a good tracking way and they were not reporting the violations? Mr. Fine. Yes, I think there were--our reviews indicate that there are violations out there that were not identified by the FBI and they are not reported from the field offices to the FBI. Now, we did not do a statistical sample. We did a small sample of 77, and you cannot statistically extrapolate from that small sample how many there would be in the entire universe. On the other hand, we found 22 in a review of 77 files, almost as many as the FBI found over the entire 3-year period. So we believe that there are certainly more out there. Chairman Leahy. But this information they picked up had to go somewhere, either into data banks or into unrelated case files. Have you done anything to get information that they were not supposed to get back out of that? I mean, I think with all the cross-fertilization of our Government data banks, if you are in there by mistake, it can hurt. I think of Senator Kennedy on this Committee not being allowed to go on an airplane ten times in a row because he is mistaken for some Irish terrorist or-- [Laughter.] Mr. Fine. Well, yes, they have told us, they reported to us that when they obtained information improperly, illegally through the NSLs, they have destroyed the information--they have either sequestered the information or destroyed the information. And so that is what efforts they have taken. Or in some cases, when an NSL could have been issued properly, they have gone back and issued a proper NSL. Chairman Leahy. So, on the one hand, they were not quite sure how many mistakes they had made, but they claimed that the material they got that they have now taken back out of the databases. Is that it? Mr. Fine. The ones they know about they have taken out, but they are in the process now of doing a full-scale audit throughout all 56 FBI field offices, a sample of 10 percent, and I am quite confident they are going to find more. Chairman Leahy. All right. Thank you very much, Mr. Fine. Senator Specter? Senator Specter. Thank you, Mr. Chairman. Mr. Fine, I have two questions for you. One question is: Should we replace the FBI Director? And the second question I have for you is: Should we replace the FBI? Going to the first question first, you have found ``widespread and serious misuse'' of the FBI's National Security Letters. ``The FBI's oversight of the use of NSLs was inconsistent and insufficient.'' On February 12th of this year, you filed a report regarding weapons and laptops, and you found that the FBI ``had not taken sufficient corrective action.'' ``The FBI cannot determine in many cases whether the lost or stolen laptop computers contained sensitive or classified information because the FBI did not maintain records indicating which of its laptop computers actually contained sensitive or classified information.'' Then your report on February 20th of this year relating to the FBI's internal controls over terrorism said, ``The collection and reporting of terrorism-related statistics within the Department is decentralized and haphazard. The number of terrorism-related cases was overstated because the FBI initially coded the investigative cases as terrorist-related when the cases were open, but did not re-code cases when there was no link to terrorism established.'' Now, could you do a better job managing the FBI? Mr. Fine. Could I personally? Senator Specter. That is the question. Mr. Fine. I am not sure I could. I believe-- Senator Specter. Is the job too big for anybody to do right? Mr. Fine. I don't think so. I think it is a tremendously difficult job. Senator Specter. Well, if you are not the right man, you are suggesting that somebody else might be the right man or woman? Mr. Fine. I believe Director Mueller is a strong leader and is doing his best to try and reform and change the FBI. Senator Specter. We acknowledge that he is doing his best. Is he doing an adequate job based on what you have said? Mr. Fine. I believe there are serious problems that he needs to address. I think he has taken responsibility for that. Senator Specter. We know there are serious problems, and we know that he has taken the responsibility. This is the last time I am going to ask you the question. Is he up to the job? Mr. Fine. I think he is. Senator Specter. Well, you better rewrite your report then, Mr. Fine. Let me move to the second question. One of the outstanding scholars in America is a man named Richard Posner, who is a judge on the Seventh Circuit, and he wrote an extensive article which appeared in the Wall Street Journal earlier this week, and this is what he says about the FBI: ``The FBI training emphasizes firearm skills, arrest techniques and self-defense, and legal rules governing criminal investigations. None of these proficiencies are germane to national security intelligence. What could be more perverse than to train new employees for one kind of work and assign them to another for which they have not been trained?'' Then he goes on to analyze quite a number of cases where the FBI conducts an investigation and makes an arrest, which is what they are good at, but does so, as he analyzes the facts, prematurely, without conducting the investigation far enough to find out if there are others involved. Doing a great job on law enforcement but not on intelligence gathering because they are not trained for it and not experienced in it. And then he writes this, referring to the FBI, that they have the ``wrong attitude.'' Finding somebody who has the means to carry out a terrorist attack is more important than prosecuting plotters who pose no immediate threat to the Nation's security. The undiscovered somebody is the real threat.'' And I have only got 40 seconds left, so I cannot go into greater detail, but I commend this to you. Judge Posner comes to the categorical, emphatic conclusion that the FBI is not suited to carry out intelligence work, and that when he compares it to MI5 in Great Britain, they have a much better system. Can you be a little more forthcoming on your answer to question No. 2: Should we replace the FBI? Mr. Fine. I don't think we should replace the FBI. I think we need to reform the FBI. I think it needs dramatic reform. I think it needs to make changes, and it is making changes-- clearly not fast enough and good enough. There is no question about that. Senator Specter. Not fast enough or good enough on handling the terrorist threat on intelligence. Mr. Fine. It needs to do better. Senator Specter. That is a hearty recommendation. Mr. Fine. It needs to do better. Senator Specter. My time is up, but I have a third question for you, Mr. Fine. Should we replace the Inspector General? Mr. Fine. I don't think so. We have tried to do our best. Senator Specter. That is you. Should we replace you? Mr. Fine. I don't think so. We have tried to do our job and-- Senator Specter. I asked you three questions and I got three noes. Thank you very much. Chairman Leahy. I would hope we would not replace you. I would hope that--I have found your reports to be very good, without fear of favor, as the expression goes, and you certainly have my confidence. Senator Specter. How about my other two questions, Mr. Chairman? I am not suggesting replacing you. I will revert back to just my first two questions, Mr. Fine. Chairman Leahy. Shall we go on to Senator Feinstein. Senator Feinstein. Thank you very much, Mr. Chairman. Mr. Fine, in the 15-some years I have watched you, I want to thank you. I think you have done excellent work. You have been straight as an arrow. You have told us as you see them, and this Senator very much respects you, and I want you to know that. Mr. Fine. Thank you. Senator Feinstein. Let me ask some specific questions. What is your impression of the FBI's continuing position that agents can continue to issue verbal emergency requests for information? Mr. Fine. I think there may be some circumstances when there is a true emergency that they need to get the information in a truly expeditious fashion, and if they do ask for it verbally, I believe they need to immediately, as soon as they can, follow it up with documentation for that. So I think there are some circumstances where that would be appropriate. Senator Feinstein. Which raises the question then: Do you believe that their assurance of the audit trail to follow in this context is sufficient? Mr. Fine. Well, they clearly didn't have an audit trail and they clearly didn't do it, but I think they need to ensure that if there ever is that need and they use it, there is a clear record and documentation of it and an audit trail of that. Senator Feinstein. Now, if they are going to use these emergency verbal requests, does it make sense to limit them to a few people? Mr. Fine. Yes, it does. I think it does make sense--limit them to a few people who can authorize that? Senator Feinstein. That is correct. Mr. Fine. Yes. It clearly should be a limited authority on an emergency basis, and it should be authorized by only a few people at the highest levels. Senator Feinstein. Thank you. Can you provide this Committee with a copy of the FBI's new emergency letter template? Mr. Fine. I can certainly go back to the FBI and request that. Senator Feinstein. I appreciate it. Do you know how many people have had their private telephone, Internet, or financial records turned over in response to NSLs since 2001? Mr. Fine. We have in our classified appendix a breakdown of the uses of NSL authorities based upon the particular statute. We break that down, and so we do have that in there. In terms of the exact number of people under each one, I am not sure, but we can try and get back to you on that. Senator Feinstein. If you would, and I have not seen the classified section, so I will take a look at it. Thank you for that. How do you reconcile your findings of no deliberate or intentional violations of NSL statutes, the Attorney General guidelines, or FBI policy with the fact that the exigency letters, signed by various FBI officials, were sent in non- emergency situations and even inaccurately represented that the FBI had already requested grand jury subpoenas when, in fact, it had not? Mr. Fine. Well, we did not do a top-to-bottom review of why everyone signed those letters, but our review indicated that it was an unthinking form that they used inappropriately, it became the accepted practice, and they signed it and sent it. With regard to the emergency situations, they did say there were times when they could not tie this to an emergency, and they used them, nevertheless, and it was clearly inappropriate. Now, the FBI is doing a review of talking to the individuals involved, a performance review, and to determine what they did, why they did it, what was in their mind, and we will follow that carefully. Senator Feinstein. Thank you. A lawyer to Bassem Youssef, who was in charge of the FBI's Counterterrorism Analysis Unit, recently told the New York Times that his client raised concerns about the FBI's failure to document the basis for its exigent letters soon after being assigned to the Communications Analysis Unit in early 2005 and that his concerns were met with apathy and resistance by superiors who tried to minimize the scope of the problem. Did your office investigate these allegations? Mr. Fine. Well, we interviewed Mr. Youssef. As you stated, he became the head of the unit in early 2005. We interviewed him, and he did not tell us at that time that he had raised concerns to his supervisors and that he was ignored. In addition, he was not the one who brought these allegations about the exigent letters to us. We saw that from lawyers in the Office of General Counsel as well as e-mails from the Office of General Counsel to his unit when he was the head of it to try and reform the practice. And, in fact, when he was the head of that unit, he signed one of these letters, and also under his name approximately 190 of those letters were issued. So the problems with the letters continued under his leadership. Now, he has said publicly, we have heard, that he raised the concerns to his supervisors and it was met with apathy. He didn't tell us that, and so we did not investigate that. And I know the FBI is looking at exactly what happened here. Senator Feinstein. Did you find any evidence that his superiors tried to minimize the problem? Mr. Fine. No. We found that the Office of General Counsel was trying to get the Communications Analysis Unit to change this, and it was not changed. And what went up the chain is not clear, but it does not look like it went high up the chain there. Senator Feinstein. To your knowledge, has anyone in or out of the FBI's Office of General Counsel been held accountable in any way for these serious and unacceptable failures to establish controls and oversight? Mr. Fine. As the result of our report, the Attorney General has asked the Department to look at the conduct of attorneys, as well as the FBI is looking at the conduct and the performance of its employees to determine accountability. Senator Feinstein. Thank you. Thank you, Mr. Chairman. Chairman Leahy. Thank you, and I have a list from Senator Specter on the Republican side of who will go first: Senator Cornyn, and then, in sequence, normal sequence, rotating to Senator Grassley, and then the normal sequence, Senator Hatch. Senator Specter. Mr. Chairman, that is the order of arrival under our early bird rule. Chairman Leahy. OK. Senator Cornyn. Thank you, Mr. Chairman. Thank you, Mr. Fine, for your important work that you are doing. I would like for you to distinguish between the fault you found with the way in which the NSL letters are being accounted for and being issued and the usefulness of this tool, because I do not want us to make any mistakes in what the corrective action needs to be. Could you please clarify that for me or expand on your testimony? Mr. Fine. Certainly. The FBI told us and provided us examples of the importance of this tool. It is an indispensable tool in the conduct of counterterrorism and counterintelligence. Senator Cornyn. I am sorry. You called it an ``indispensable tool''? Mr. Fine. Indispensable tool. It can connect terrorists or terrorist groups with other individuals, it can look at the financing of terrorist groups, and it can initiate leads or close investigations. It can be used in an attempt to connect the dots. That is very important. On the other hand, it has to be used, because it is an intrusive tool, in accord, in strict accord, with the statutes, the guidelines, and the FBI's own policies. There needs to be internal oversight over it. There needs to be internal controls. There needs to be clear guidance to the field and the supervisors who are using it on when it can be used and when it can't be used and what needs to be done. And we found real problems with that. So, on the one hand, it is an important tool. On the other hand, it is an intrusive tool that needs greater controls. Senator Cornyn. Thank you. I think that is very important to differentiate. And I know Senator Durbin has spent a lot of time looking into this issue and working on this issue. I think we tried to work together, all of us, in a bipartisan way to deal with some of the problems with National Security Letters, the so-called gag rule that prohibited a recipient from actually even telling their own lawyer, and the issue of allowing them to go to court to challenge the National Security Letter, providing some level of judicial review. Did you find any problems with regard to those particular features of the amended PATRIOT Act? Mr. Fine. Well, we didn't really look at that issue that you just raised right there. Senator Cornyn. OK. Thank you. Those are the two things I wanted to ask about. Thank you very much. Chairman Leahy. Thank you, Senator Cornyn. Thank you very much. Senator Feingold? Senator Feingold. Thank you, Mr. Chairman. Mr. Fine-- Chairman Leahy. And I should note, at one point I may have to go for a few minutes to the Appropriations Committee. If I do, Senator Whitehouse has offered to stay and chair. Senator Feingold? Senator Feingold. Thank you, Mr. Chairman. Mr. Fine, let me start by thanking you for these very thorough and thoughtful reports. I remember the very strong, courageous IG report about the treatment of detainees right after 9/11 in New Jersey and New York. I know that conducting this type of detailed audit takes a great deal of resources, and I want you to know that we appreciate the work that your office did. This independent product is invaluable to our Congressional oversight responsibilities, and I want to especially compliment you, Mr. Fine, on how you handled the questioning by the Ranking Member concerning the FBI Director. It is not your job to speak on whether or not Mr. Mueller is up to his job. You have a specific role in the Department, and in my view, you have discharged your duties with tremendous integrity and professionalism. I think it is inappropriate to browbeat you for an answer to a question that is outside of your professional responsibilities. I do not know why we would want to intimidate somebody like this, but the fact is this is one guy that I do not think can be intimidated. So I thank you for your service to our country. Mr. Fine, the Attorney General guidelines state generally that agents are supposed to use the least intrusive investigative tools available. Your report recommends that more guidance be provided to agents about how to implement that standard, particularly with respect to the use of NSLs, and I want to get your view on the level of intrusiveness involved in obtaining different types of information available through an NSL. First of all, with respect to the three main categories of NSLs, how would you rank them in terms of their level of intrusiveness? Mr. Fine. Well, if you had to rank them, I think that the least intrusive, although I do think it is intrusive, is the telephone records, the transactional records of telephone calls made and the subscriber. I think it then goes to more intrusive, much more intrusive, when you are talking about financial records and when you are talking about credit reports. I think those are much more private and more intrusive than initial telephone call records. Senator Feingold. That is consistent with the FBI General Counsel's statements to my staff as well. But the same loose legal standard applies with respect to all of these different types of records. Isn't that right? Mr. Fine. It is the same general standard. Some of them are called ``relevant to an authorized investigation.'' In terms of others, ``sought for an authorized investigation'' is the same principle. It is the same standard. Senator Feingold. Do you think it is a good idea that the same standard applies to all these records? Mr. Fine. Well, I don't know if a different standard needs to be applied. I will have to think about that. But what does need to happen, something we recommended, is that the FBI consider this and look at what guidelines there should be on using the least intrusive method while at the same time effectively pursuing terrorism leads. And I don't think there has been guidance. It has been left to the field. There are 56 field supervisors who make their own calls, and they have counsel in their office who probably have different ideas of what is intrusive and when it should be used in the conduct of an investigation, whether it is the subject or whether it is someone who is connected to the subject. So I do think there has to be thought put into when these methods are used and at what stage of the investigation. Senator Feingold. With respect to the NSL for credit reports, would you agree that obtaining a full credit report is more intrusive than obtaining what is commonly known as a ``credit header,'' data such as name, address, employer, and the name of a bank where an individual has an account? Mr. Fine. Yes. Senator Feingold. With respect to the NSL for financial records, would you agree that obtaining the details of someone's financial transaction is more intrusive than finding out their bank account number? Mr. Fine. Yes. Senator Feingold. And with respect to the NSL for phone or Internet records, would you agree that obtaining the details about who someone is communicating with and when is more sensitive than finding out what their phone number or e-mail address is and how they pay for their phone and Internet usage? Mr. Fine. Yes. Senator Feingold. According to your report, the share of NSL requests directed at U.S. persons--that is, citizens and permanent residents--increased from 39 percent in 2003 to 53 percent in 2005. First of all, you have warned that many of the numbers in your report are likely somewhat inaccurate because of poor FBI recordkeeping. Do you have a sense of how accurate the breakdown is that I just mentioned, and to the extent that it is inaccurate, whether it is more likely to overstate or understate the percentage of U.S. persons? Which direction is it likely to go? Mr. Fine. I don't think we can make an estimation of whether it is more inaccurate for U.S. persons or non-U.S. persons. But it is clearly inaccurate for a whole variety of reasons. We looked at the files and couldn't find about 70 percent of the NSLs that we found in the files in the database. We also know that the FBI has delays in putting information in the database, so the reports that come to Congress, those NSLs are not included. We also found computer malfunctions and glitches in the system, structural problems, so that they didn't capture NSLs. And I think it is a widespread problem throughout the database, and I couldn't really tell you whether it was more for U.S. persons or less for U.S. persons. Senator Feingold. Do you have any idea why a larger percentage of targets are U.S. persons now than several years ago, to the point where a majority of NSL requests in 2005 actually involved citizens or permanent residents? Mr. Fine. I think the FBI would say that because of international terrorism cases, they are looking to see any potential contact with the United States. So if there is a person hypothetically in the London bombing, if there is a bomber who has information that seems to indicate there was some contact with the United States, they will more assiduously and aggressively look to see if there has been that contact. Senator Feingold. Thank you, Mr. Fine. Thank you, Mr. Chairman. Senator Specter. Mr. Chairman, if I may exercise a point of personal privilege. Mr. Fine, did I browbeat you? Senator Feingold. Say ``No.'' [Laughter.] Chairman Leahy. I don't think anybody could do that to Mr. Fine, but go ahead. Mr. Fine. I answered the questions. I didn't feel browbeaten. Senator Specter. Did I intimidate you? Mr. Fine. No, you did not intimidate me, Senator Specter. Senator Specter. Do you think I need a lesson from Senator Feingold as to how to question a witness? Mr. Fine. Well, on that one, I will, I think, exercise my discretion and-- [Laughter.] Chairman Leahy. I think we may move on to Senator Grassley, who has questions to ask. Senator Grassley? Senator Grassley. Well, I don't want to be guilty of pandering, so I might as well say I think you do a job that other inspectors general ought to follow, and I think I am some judge of that because I think I have had a hand in getting either the resignation or firing of at least five or six inspectors general since I have been in office. And I am not looking for a replacement for you. I want other people to follow your direction. I am going to follow along the lines eventually of what Senator Feinstein was asking you, but before I get there, I want to ask a couple other questions. You have said that some of your most disturbing findings deal with the 739 so-called exigent letters issued from one particular unit. Your report states that these letters ``contain factual misstatements, claiming that the subpoenas had been submitted to the U.S. Attorney's Office and that there was an emergency need for the phone records before the subpoena could be processed. We need to find out if the officials signing these letters knew that they were untrue. If so, it would be extremely serious misconduct, if not a criminal violation.'' I understand that your review did not focus on that issue because you had a much broader mission to look at the National Security Letters generally. I also understand that in response to your findings of the exigent letters, the Director ordered a special inspection of the headquarters unit that issued them. However, I am not confident that the FBI can be trusted to investigate itself and hold the right people accountable. If the public is going to be reassured that these abuses are taken seriously, there needs to be a separate independent inquiry to find out whether any misrepresentations in the 739 letters were knowingly or intentional. Question: Are you aware of any independent investigation by your office or any other office looking into exactly who knew what and when? Mr. Fine. Senator Grassley, no, we are not looking into who knew what when. We will monitor what the FBI does, and I am sure the FBI will report to this Committee about its findings as well. We are, as required by the reauthorization act, looking at the use of NSLs in 2006. We have a mandate to do that very broad review again in 2006 for the 2006 NSLs, which we are intending to do. Senator Grassley. Do you think that there needs to be an independent review? Mr. Fine. I think the FBI should look at what happened, and we ought to see what the results are and then see whether it was aggressive and thorough or not. Senator Grassley. Well, I think that there ought to be an independent review. I am skeptical of the FBI's ability to objectively investigate itself, and especially since one of the people at the center of the issue is Bassem Youssef, who has already been referred to by Senator Feinstein. He is a decorated Arab American agent who has a discrimination lawsuit pending against the FBI. Last year, Senator Specter, Senator Leahy, and I wrote to you forwarding evidence that Mr. Youssef appeared to be a victim of whistleblower retaliation. So from my judgment, trusting the FBI to investigate this matter is a little bit like trusting a fox to guard a chicken house. Mr. Youssef is the current head of the unit that issued the letters, but most of the letters were issued under his predecessor before 2005. According to a letter provided by his attorney, Mr. Youssef's efforts to report and correct the problems were dismissed or ignored by his superiors, forcing him to report the issue to the General Counsel's office, not directly to you, as you stated correctly. Mr. Chairman, I want a copy of that letter from Mr. Youssef's attorney put in the record. Chairman Leahy. Without objection, so ordered. Senator Grassley. Inspector Fine, yesterday the Washington Post reported that in light of these developments surrounding the release of your report on National Security Letters, the FBI issued new guidance to field agents in seeking phone records. This new guidance includes a new template for emergency letters and instructions telling agents there is no need to follow these letters with NSLs or subpoenas. Further, this guidance states that the letters are a preferred method in emergencies, but that agents may make these emergency record requests orally. FBI Assistant Director John Miller stated that these new procedures will include ``an audit trail to ensure we''--the FBI--''are doing it the right way.'' My question is: How do you see these new procedures working? Mr. Fine. We will have to take a look at those procedures. We heard about that as well and read about it. There is a provision in the law, the current law, the ECPA law, Electronic Communications Privacy Act, which allows voluntary disclosure of customer communications in specified circumstances when there is an emergency involving danger of death or serious physical injury to any person. Now, what we said was you have got to follow that law. You cannot combine it with an NSL because that is not a voluntary disclosure. You have got to separate it. And that was the problem we found with the exigent letters. This does appear to be trying to separate that, but we are going to have to take a look at exactly what it is and how it is in operation. But, clearly, they had to put a stop and they should have put a stop to the exigent letters as they existed and as they were used. Senator Grassley. Do you think the FBI documents can provide adequate justification for emergency requests when they allow agents to make these requests orally? Mr. Fine. Well, it has to be documented. Sometimes there is an emergency and you can orally make that request, but it has to be followed up with documentation and immediately thereafter explain why there was an emergency and why there was the need for the oral notification. Senator Grassley. Could you provide copies of any and all unclassified e-mails related to the exigent letters provided by the CAU? Mr. Fine. Can we do that? Senator Grassley. Yes. Mr. Fine. We will certainly work with this Committee and you for that. They are FBI documents, and we will follow the protocol as we normally do. Senator Grassley. I think I am going to have to submit the rest of my questions for answers in writing. Chairman Leahy. Thank you. And normally, Senator Whitehouse would be next, but he has agreed to let Senator Durbin, the Deputy Leader, go first. Senator Durbin, you are recognized. Senator Durbin. Thank you, Mr. Chairman. Chairman Leahy. I have been advised that I had the order wrong. Senator Specter says that it will be Senator Kyl next in the normal rotation and then Senator Hatch. Senator Grassley. Could I have this letter put in the record? Chairman Leahy. Without objection. Senator Grassley. And I would like to also see if we could get this stuff before next Tuesday's hearing that we have schedule. Chairman Leahy. Let's see if we can. Senator Durbin? Senator Durbin. Mr. Chairman, thank you, and, Senator Whitehouse, thank you very much for this chance to ask questions. I think it is worth a minute to reflect on why we are here today. We are here because a bipartisan group of Senators thought that the PATRIOT Act went too far. We came together and suggested changes to tighten up the PATRIOT Act to avoid abuses similar to the ones that are the subject of this Inspector General's report. Unfortunately, our request to amend the PATRIOT Act was denied in this Committee and on the floor, and the best that we could get out of our effort was an Inspector General's report to at least alert us as to what was happening. And so the reason we are here today is because Mr. Fine followed on the recommendation and requirement of our legislation to at least tell us how this law is being used, and I thank you for that. But I also want to say that if the FBI and Department of Justice were derelict in the way that they used and applied the PATRIOT Act, I happen to believe that Congress could have done a much better job in making this law more responsive to our basic values when it comes to checks and balances. And I think that comes through very clearly. I want to try to ask you four fairly specific questions that relate to your findings. Let us move to the exigent letter situation. In this situation, the FBI would go to a telephone company and say to them: We are involved in a national security investigation. It is of an emergency nature. We have requested a subpoena from the court, but because of the emergency we need you to produce this record or this information immediately. And what you have found, as I understand it, is that in many cases there was no emergency, there was no application for a subpoena, and there was no evidence that it really had anything to do with an ongoing investigation. If the FBI misrepresented those three material facts to a telephone company to secure the private records of innocent Americans, was a crime committed? Mr. Fine. One would have to look at the intent of the individuals involved. I don't believe that they had the intent to commit that crime. One has to also recognize that these were three telephone companies with which they had a pre-existing relationship and they had lots of information going back and forth, and they set up this arrangement to obtain these records. The telephone companies were providing this information, lots of this information, on an ongoing basis. The FBI used this form. It was the inappropriate form. The telephone companies knew what was happening here, and the form kept being used. That was inaccurate and inappropriate. If somebody knew that and intended to do that, nonetheless, that would be a potential crime. We did not see that. Senator Durbin. You question whether it was intentional, but yet you found it was repeated over and over again. Mr. Fine. The same form was used over 700 times. They just kept sending it. It was signed by many people, and it was an unthinking use of an improper form. Senator Durbin. And the FBI General Counsel, Valerie Caproni, has said when it came to the NSLs, in her words, there was ``a colossal failure on our part to have adequate internal controls and compliance programs in place.'' Next question: How high up the chain did this information go? At what point, at any point, did the Attorney General of the United States know of the serious abuses and misuses identified in your report? Mr. Fine. Of the entire report? He knew about it when we provided a draft report to the Office of the Attorney General. Senator Durbin. I am talking about when they were actually using the exigent letters and NSLs. Mr. Fine. What he said, I think he has said this publicly, is that he was surprised about the misuses that we identified, as did the Director of the FBI. Senator Durbin. The Director of the FBI, again, was not informed of these colossal failures? Mr. Fine. I don't think they knew about these misuses that we found until we put it all together in this comprehensive report. Senator Durbin. Would you say the same of the General Counsel of the FBI? Mr. Fine. I think the General Counsel also probably didn't know of the extent of the problems here. Senator Durbin. I say to my colleagues on the Committee, when we start asking questions about whether we need checks and balances when it comes to the PATRIOT Act, isn't this a perfect illustration when neither the Attorney General, the Director of the FBI, nor even the General Counsel of the FBI knew of these serious abuses that may have invaded the privacy of hundreds of innocent Americans. The next question I have relates to this Office of Professional Responsibility investigation of warrantless wiretaps. It is my understanding--well, first, let me say that when the Office of Professional Responsibility in the Department of Justice initiated this investigation, they were stopped. The White House refused to give security clearances to the Office of Professional Responsibility to investigate any wrongdoing on the part of the Department of Justice in the warrantless wiretap program. It is my understanding that your office is now investigating the NSA warrantless surveillance program. Is that correct? Mr. Fine. That is correct. Senator Durbin. And have you received security clearances for that? Mr. Fine. Yes. Senator Durbin. Are you aware of any rationale for granting security clearances to your office but not to the Office of Professional Responsibility? Mr. Fine. I am not aware of any. I wasn't--no, I am not aware of any. Senator Durbin. Last question. There is a Privacy and Civil Liberties Oversight Board we created to try to keep an eye on the type of abuses which you have reported in this Inspector General's report to Congress. Is there any evidence that this group was either informed or involved in any decisionmaking related to these incidents? Mr. Fine. Before the incidents occurred? Senator Durbin. Yes. Mr. Fine. Not that I know of. We are briefing the Privacy Board tomorrow. Senator Durbin. This is a board that is supposed to clear these things in advance. It is supposed to decide whether they have gone too far. Now they are learning years later what actually happened. Clearly, under current law they are irrelevant. Thank you. Senator Whitehouse. [Presiding.] Senator Kyl? Senator Kyl. Thank you, Mr. Chairman. And, Mr. Fine, I want to thank you for your testimony and for the report which you issued. You state in your testimony that the violations that your report identified were serious and widespread. You also state, and I am going to quote here, that you ``did not find that the FBI agents sought to intentionally misuse the National Security Letters or sought information that they knew they were not entitled to obtain through the letters. Instead, we,'' you say, ``believe the misuses and the problems we found were the product of mistakes, carelessness, confusion, sloppiness, lack of training, lack of adequate guidance, and lack of adequate oversight.'' Later in the recommendations section of your report, you state the following, and I again quote: ``To help the FBI address these significant findings, the OIG made a series of recommendations, including that the FBI improve its database to ensure the office that it captures timely, complete, and accurate data on NSLs, that the FBI takes steps to ensure that it uses NSLs in full accord with the requirements of National Security Letter authorities, and that the FBI issue additional guidance to field offices that will assist in identifying possible violations arising from use of NSLs. The FBI concurred with all of the recommendations and agreed to implement corrective action.'' The report goes on to state, ``We believe,'' again quoting, ``that the Department and the FBI are taking the findings of the report seriously. In addition to concurring with all of our recommendations, the FBI and the Department have informed us that they are taking additional steps to address the problems detailed in the report. For example, the FBI's Inspection Division has initiated audits of a sample of NSLs issued by each of its 56 field offices. It is also conducting a special inspection of the exigent letter send by the Counterterrorism Division to three telephone companies to determine how and why that occurred. The FBI's Office of General Counsel is also consolidating its guidance on NSLs, providing additional guidance and training to its field-based chief division counsel on their role in approving NSLs and working to develop a new web-based NSL tracking database. In addition to the FBI's efforts, we have been told that the Department's National Security Division will be actively engaged in oversight of the FBI's use of NSL authorities.'' So, Mr. Fine, to summarize, your report found that although the violations you identified were serious, they were the result of inadvertence and inattention rather than intentional malfeasance. And in addition to concurring in and agreeing to implement all of your recommendations for correcting these problems, the FBI has additionally initiated its own audits through its Inspection Division, the FBI General Counsel's office has consolidated its guidance on the use of NSLs, and in addition, the Justice Department's National Security Division will begin overseeing the use of NSLs. Now, I have two questions, and part of this is in response to the Senator from Illinois, who stated certainly a truism that we need checks and balances. But from my observation, the strength of your report--and, frankly, the strength of your office and your reputation--is one element of the check and balance; second is the Congressional oversight that we are exercising by virtue of having hearings like this; and, third, the report requirements that are part of the statute. All of those are part of the fabric of checks and balances that are either built into this particular program or that exist as a general proposition. So here are my two questions. Do you believe that FBI's implementation of the recommendations that you made and the additional corrective measures that FBI and DOJ have agreed to undertake are reasonably likely to prevent in the future the bulk of the types of deficiencies that you identified? And, second, do you believe that in order to correct the problems that your report has identified, it would be necessary to increase the statutory standard for issuing an NSL, that the standard for issuance needs to be increased to require more than relevance to an ongoing and legitimate investigation, in order to address the problems that you identified in your report? Mr. Fine. With regard to the first question, are they reasonably likely to correct the problems: if the FBI takes this seriously, actually implements the controls, does not make this a short-term proposition but has virtually a complete turnaround to ensure that there are the internal controls on it, and not simply relying on others, such as us or the Congress, to point out deficiencies, but as it is ongoing, making sure that it doesn't happen, it can help to ensure that they follow the statutes and the guidelines. Can I say that it is going to happen? I can't say that. Senator Kyl. So this type of oversight and your work and reports will still be necessary to verify the progress that they make. Mr. Fine. Well, it certainly will be necessary, and whether it will completely correct the problems, I can't say. And the second question having to do with the statutory standard, that is a question for Congress and the administration, and my job here is to provide the facts and to show what happened and show the problems and to let the process work itself out. Senator Kyl. Good. Again, I said this in another forum, but when we give serious authorities to responsible agencies, we expect the authorities to be carried out properly. I commend you and the folks in your office for helping us to ensure that that occurs. And thank you for your testimony here today. Senator Whitehouse. I think at this stage I have the floor, or would you like to proceed, Senator Hatch? Are you under time pressure? Senator Hatch. I am a little bit, if you-- Senator Whitehouse. Why don't you proceed. Senator Hatch. I have to say, you are very gracious, Senator, and I appreciate it very much. I also agree that you do an excellent job and that your position is very, very necessary. When you look at the PATRIOT Act, is it because of defects in the PATRIOT Act that these errors have occurred, or were they errors that were primarily violations demonstrated by FBI agents' confusion and unfamiliarity with the constraints on National Security Letter authorities? Mr. Fine. We looked at the problems, and we found that the execution of the FBI's use of these authorities was very flawed and that there were-- Senator Hatch. In other words, the PATRIOT Act does provide that they have to abide by certain constraints. Mr. Fine. Well, the PATRIOT Act does require them to abide by certain constraints, and they didn't. Senator Hatch. And that is the problem here. Primary problem. Mr. Fine. Well, the problem that we saw was the execution of their authorities here. Senator Hatch. Well, that is my point. The primary problem is that they ignored--they did not follow what the law really said they should have followed. Is that correct? Mr. Fine. They did not follow what the law provided. Senator Hatch. And it was in large measure because of agent confusion over what the law really says and it may be a lack of total supervision with regard to these problems. Mr. Fine. It was a lack of guidance, a lack of training, a lack of oversight, inadequate internal controls, and there was confusion and mistakes out in the field. Senator Hatch. Do you expect them to be perfect, the FBI agents, as they implement all of these laws? Mr. Fine. I don't think anyone is perfect. On the other hand, what we saw-- Senator Hatch. But you do expect them to follow the law. Mr. Fine. On the other hand, we found widespread problems and clearly not approaching perfection, or even satisfactory execution of it. Senator Hatch. I agree with that, and I think that my point is that when you work with individuals, you are going to have some mistakes and some confusion and some problems, even though they are not justified in this instance. Mr. Fine. Well, there certainly will be mistakes and problems, but that is why there needs to be that oversight and those internal controls, and the FBI to be finding this out and ensuring that it doesn't occur, not after the fact for-- Senator Hatch. That is why we need you and us. Right? Mr. Fine. I think we need all of the entities. Senator Hatch. With regard to Section 215, did you find any utilization of the 215 authorities to go to libraries? Mr. Fine. No. We found that they did not seek a 215 order for library records. There were a few where there was a request for it within the FBI, but in the process prior to application to the FISA Court, they were withdrawn. Senator Hatch. In fact, regarding the Section 215 portion of the report, it appears that even though 215 orders were not utilized often--and that is a fair characterization, isn't it? Mr. Fine. They were not utilized often. In fact, in the 3- year period that we reviewed, they were utilized, pure 215 orders, approximately 21 times. Senator Hatch. But they were valued by FBI agents as a tool to try and interdict and work against terrorism. Mr. Fine. The FBI agents did tell us they thought it was a specialized tool that could get important information in certain cases that others could not. Senator Hatch. You mentioned that FBI personnel stated during interviews that the kind of intelligence gathered from Section 215 orders is essential to national security investigations and that the importance of the information is sometimes not known until much later in the investigation. That is a fair characterization? Mr. Fine. That is what some of them told us, yes. Senator Hatch. Right. Given that you did not find widespread misuse of this 215 authority, do you feel like the FBI was careful in its application and that agents exhibited proper restraint in its use if they did not fully understand the process and requirements of obtaining these orders? Mr. Fine. Well, in the 215 process, we did find that there were controls over it, that there were levels of review that prevented the misuse of the 215 authority. In some sense, it was very--there were delays in the process. Senator Hatch. Right. Mr. Fine. And there was a significant amount of time for them to get a 215 order, which is why some of them thought it was not terribly effective. On the other hand, the multiple levels of review and the internal controls prevented the misuse of these authorities. Senator Hatch. Well, and, frankly, the 215 authorities have been utilized by law enforcement for anti-crime law enforcement for many years before the PATRIOT Act. Mr. Fine. The PATRIOT Act expanded the use of the predicate for 215s, but it was in existence, that kind of authority. Senator Hatch. And we have always been able to go to libraries on a quest to find evidence against crime. Is that correct? Mr. Fine. In certain cases. Senator Hatch. Certainly, it seems to me, in terrorism cases or major criminal cases. Mr. Fine. Criminal cases, they have that authority to go to libraries. Senator Hatch. Well, I also agree that--well, you said in your report, in your statement here today, ``It is important to recognize that in most, but not all, of the cases we examined in this review, the FBI was seeking information that it could have obtained properly through National Security Letters if it had followed applicable statutes, guidelines, and internal policies.'' That is the point I was making. Mr. Fine. In most cases. We found some cases where they couldn't have obtained it, and they used it in a way that was seeking information that was not obtainable through an NSL. Senator Hatch. All right. Mr. Chairman, could I just have another 30 seconds? Senator Whitehouse. Please. Senator Hatch. You also said, ``We did not find that the FBI agents sought to intentionally misuse the National Security Letters or sought information that they knew they were not entitled to obtain through the letters. Instead, we believe the misuses and the problems we found were products of mistakes, carelessness, confusion, sloppiness, lack of training, lack of adequate guidance, and lack of adequate oversight.'' Now, you also say that all of that being true, you do not excuse the FBI for these mistakes, and I think that is a fair summary of basically some of your findings. Mr. Fine. I think so. Senator Hatch. Well, I just want to tell you that I think we are well served by you and your office, and it is easy to find lots of fault. The point is that we have got some work to do to make sure that these problems are resolved, and because of your work, I think there will be more of an intense effort to try and resolve these problems. But basically the PATRIOT Act itself, it seems to me, stands as a ready, willing, and able statute to help us to at least do our best against terrorism. Would you agree with that? Mr. Fine. Well, Senator, it is really not my job to come to you and say whether the PATRIOT Act-- Senator Hatch. But you are an expert in these areas, and-- Mr. Fine. What I try and do is to provide the facts and what happened and the circumstances to allow this Committee and others to make judgments on-- Senator Hatch. As a person who examines this, would you want to face terrorism without the tools that are given in the PATRIOT Act? Mr. Fine. I think there are important tools in the PATRIOT Act, and those are, as we stated, indispensable tools. On the other hand, there needs to be adequate and effective controls on them as well. Senator Hatch. I agree with you in every regard there. Thanks so much. Thanks, Mr. Chairman. Senator Whitehouse. My pleasure. I would like to join the other Senators who have complimented your work today, Mr. Fine. It is quite impressive. I would like to focus on the process side here a little bit, if I may. As I see it, there have really been two failures that are documented by your report. One is the failure in compliance with respect to the various mechanisms regarding the National Security Letters. The other is an oversight responsibility that also appears to have been failed at. Let me ask you first when and whether this all would have come to light if it had not been for your report and your inquiry. Mr. Fine. I doubt it would have. I don't know that anyone was doing this kind of review to uncover problems with the use of National Security Letters. I do know that the Director of the FBI said that it was a surprise to him when he learned this through our report. Senator Whitehouse. There have been previous efforts to report in the past, and I am informed that between 2003 and 2005 the FBI reported 26 possible violations among the 145,000 NSL requests that were made in that period. So, clearly, there was a process of some kind that produced those 26 possible violations. What was that process, and why did it fail so badly? I mean, the comparison is astounding, 26 out of 145,000, and yet when you really drilled into this, you found that 17, as I count them, 17 out of 77 files had at least one violation of reporting requirements and 46 out of 77, more than half, lacked some of the documentation required for approval. So the comparison between 26 out of 145,000--I cannot even do the percentage, it is so small--and 17 or 46 out of 77 is colossal. What was the failure in the reporting process that produced that original 26 number? Mr. Fine. There was a big discrepancy. The number actually should probably be about 44,000 National Security Letters, making 143,000 requests, but there is a huge discrepancy as you point out. And the problem was the FBI provided guidance to the field: If you have a problem, if you find a problem, if there has been a potential intelligence violation, report it to us; we will review it and we will determine whether it needs to be reported to the President's Intelligence Oversight Board. It relied upon the field to go and report problems. Senator Whitehouse. Voluntary self-reporting. Mr. Fine. Voluntary self-reporting. There was no audit function. There was no inspection going out there just saying, OK, we are going to check, too. And so when we go out there and check the files, we find problems in a pretty significant number of files that were not identified by the FBI, the FBI's sort of self-reporting mechanism. And as the Director has stated, which I agree, they should have been doing audits of this. They should have been having some oversight function to do something similar to what we were doing, that is, reviewing the files and making sure that their violations, if they are occurring, are identified and reported. Senator Whitehouse. What was the administrative travel that led you to commencing this report? Mr. Fine. We were required to do this by the PATRIOT Reauthorization Act. Senator Whitehouse. It is in the statute that on a certain date Mr. Fine. Oh, well, it was in the statute that within 1 year from the date of the signing of the PATRIOT Reauthorization, we had to report on a whole series of issues, and the statute laid out what we had to do, and we did that very broad review and put it in this report. And it was a pretty tight deadline on a lot of subjects. We met the deadline, and I am very proud of our people for doing that. Senator Whitehouse. Presumably, the Bureau was aware of this through its legislative contacts? Mr. Fine. They were aware of the requirement, and they knew we were doing the audit. We contact them and seek their cooperation, and they provide it. So, yes, they were fully aware and cooperated fully with our review. Senator Whitehouse. Is it surprising to you that, aware as they were, this requirement as a matter of law had been established that you should conduct this investigation? There was not any--or maybe there was. You can tell me if there was-- administrative effort to kind of get ahead of this and double- check. I mean, if I were leading an agency in my home State and the local legislature authorized a State Inspector General or somebody to come and have a look at a process that I was in charge of, one of my first questions would be to my staff: What is going on here? What have we been doing on this? Let me know, you know, a preview of coming attractions when the auditor comes in to have a look. Did you find any of that going on? Or was the FBI sort of blissfully ignorant right to the-- Mr. Fine. Well, they did not go out in advance of what we were doing and say let's see what is in the files. I am not sure we would have been happy with that. But there was not an effort to try and say what are the problems out there. They had issued policies. They were hopeful that they were being followed. And they weren't. And the problem was the implementation over time. And, in addition, this is a time period, you know, we were reviewing 2003 to 2005, so it was a historical time period. And I am not sure what they could have done to clean up the problems with regard to that. We will be looking at 2006 as a result of the PATRIOT Reauthorization Act now, and we will provide that report at the end of this year. But the FBI was not aware of these problems. They did not have a handle on the scope of the problems. Senator Whitehouse. They did not look for them and they did not find them. Mr. Fine. I think that is correct. Senator Whitehouse. At what stage--again, walk me through the administrative travel on all of this. At what point did the Director, for instance, become aware that you were going in and of what you had concluded as a result of your efforts? Mr. Fine. Well, I think he was aware of it at the beginning of 2006 when the Act was passed and we initiated the audit. We worked with their staff, and he is aware of that. And so that was not a surprise. With regard to the extent of the findings, I think he probably learned about it when we provided a draft report to the FBI pursuant to our normal processes, saying here are our findings, are they inaccurate, you tell us if there is something inaccurate in there, and we give them a chance to tell us if we are wrong. And it did not happen here. Senator Whitehouse. And with respect to the Attorney General? Mr. Fine. I think the same thing. We provided a draft report to the FBI and the Office of the Attorney General, I think probably in January of this year, and laid out in detail what we found. Senator Whitehouse. Did you find any internal traffic, either from the Director or from the Attorney General, along the lines of saying, you know, hey guys, we got some pretty important responsibilities here, by law we have certain requirements that we have to meet, there is a further requirement that the Inspector General come and have a look at all this stuff, let's pay some attention here? Mr. Fine. Well, we didn't look for that. We didn't go and ask for the internal processes between the FBI Director and the Attorney General. We were looking at what are the problems out there, and we had a mandate there to look at a broad review and answer very specific questions. And that is what we were focused on, and that is what we provided in this report, a description of the problems that we found. Senator Whitehouse. So the extent to which the oversight failure tracked up into the Department of Justice is not the focus of your report beyond the initial level that the NSLs themselves were in large measure noncompliant and the self- reporting function had failed. Mr. Fine. Right. That is correct. We looked at the problems, and when this report was issued, the FBI Director said publicly that the FBI should have, and he should have, ensured that there were adequate controls and that these kinds of reviews had been done and not waited for the OIG to do it. So he said that. Senator Whitehouse. I think that that raises a whole different set of questions. I understand that your report did not go there. But the idea that this Congress passes legislation as significant as the PATRIOT Act, that lays out very specific responsibilities that relate to the use of an indispensable, according to your testimony, tool in our war on terror and there is not some kind of an automatic process and trigger whereby somebody in the Bureau goes through the statute and says here is the checklist of the things we need to do now and that floats upstream to an appropriate administrative official who says this is what we are going to do, and then the Deputy Director or somebody signs off on the oversight, I mean, that would seem to be an ordinary administrative consequence to a new set of authorities and responsibilities. And as far as you can tell, none of that ever happened. Mr. Fine. Well, the PATRIOT Act didn't provide this checklist of what needed to be done to oversee this. It was in the PATRIOT Reauthorization Act. But I agree with your point Senator Whitehouse. I was using that shorthand. Mr. Fine. I do agree with your point that when you work hard to get these important and sensitive authorities that are intrusive, that get sensitive information that is retained for a significant period of time, you are obligated and you should put in a system and internal controls to ensure that it is used properly and to ensure that there are not misuses of it. Senator Whitehouse. And I would suggest that even a step ahead of that, as an administrator, you should have a system in place to identify those moments so that you are sure that the process that you just described actually takes place, sort of the meta system, which is are we up to the task of looking at new legislation that Congress gives us and making sure that this step happens. That is sort of an overarching Mr. Fine. Yes, and they should do that on a systematic basis. I agree with you. Senator Whitehouse. And there is no indication that they do at this stage, at least that we can glean from your report. Mr. Fine. We didn't review that, but it didn't happen in this case. Senator Whitehouse. Yes. A final point, if you don't mind a moment, Senator Feingold. A fine question. There has been some testimony given on the House side that the FISA 215 orders are too cumbersome, and if you tried--that the 215 order would technically allow you to get all of the information that is now obtained through the National Security Letters, but that the process of using that vehicle would be so cumbersome that it would essentially grind a lot of what we need to do to a halt. In between allowing the FBI, completely unsupervised, to exercise oversight over themselves with, you know, demonstrated failure to date in that respect, and a full-blown FISA 215, are you prepared to recommend whether there is any intermediate step that this Committee and this Congress might consider to see that the FISA Court or somebody, at least, outside of the immediate administrative structure of the Bureau at least has some kind of sign-off on whether the approval process is being done right? Should that be located elsewhere, and is the FISA Court an appropriate place? Mr. Fine. I am not prepared to recommend a specific legislative piece. I would have to sort of address it on a case-by-case basis. I think that is obviously a consideration to be reviewed, and whether there should be review of these by an entity outside the FBI, whether it is in the Department of Justice or whether it is a local prosecutor, that is obviously an issue that both this Committee and the Congress need to review along with the input of the Department and the FBI about what that would mean. Senator Whitehouse. OK. Well, I appreciate your testimony very much today, and Senator Feingold has the floor. Senator Feingold. Thank you, Mr. Chairman, very much. And, Mr. Fine, thanks for your patience here. In your October 2006 memo to the Attorney General on the Justice Department's top management and performance challenges for fiscal year 2006, you cautioned that the PATRIOT Act granted the FBI broad new authorities to collect information, including the authority ``to review and store information about American citizens and others in the United States about whom the FBI has no individualized suspicion of illegal activity.'' You cautioned nearly 6 months ago that the Department and the FBI need to be particularly mindful about the potential for abuse of these types of powers. First, I want to establish some basic facts alluded to in your memo. Under the existing NSL statutes, it is possible to obtain information, including full credit reports, about people who are entirely innocent of any wrongdoing. Isn't that correct? Mr. Fine. It is possible, yes, as a result of the investigation, there is no finding of anything and that they are innocent, yes. Senator Feingold. And the FBI's policy is that it will retain all information obtained via NSLs indefinitely, often in databases, like the Investigative Data Warehouse, that are available to thousands of investigators. Is that correct? Mr. Fine. Yes. Senator Feingold. Now, with regard to your caution about the potential for abuse of these powers, DOJ responded in November 2006 that the FBI agrees and that it is ``aggressively vigilant in guarding against any abuse.'' Would you agree with that statement, that the FBI has been aggressively vigilant in guarding against abuses? Mr. Fine. I would agree that the FBI was not aggressively vigilant in terms of guarding against the problems we found, yes. Senator Feingold. So you would disagree that the FBI was Mr. Fine. Oh, I am sorry. I would disagree that they were-- Senator Feingold. Being aggressively vigilant. Mr. Fine.--aggressively vigilant, yes. Senator Feingold. Now that your investigation is complete, what kinds of things do you think the FBI should be doing if it is going to be aggressively vigilant in guarding against abuses of its NSL powers? Mr. Fine. I think they ought to establish an audit function so they are going out to look for problems and misuses. I think they need to have clear guidance. I think they need to have better training. I think they ought to do a review to look at what happened in this case to ensure it doesn't happen in the future and that accountability is assessed. I think that it has to have a change in mind-set that we are going to make sure that there are not abuses of these important tools that are indispensable to their investigations. Senator Feingold. Your office identified 22 violations of the NSL statute that had not previously been reported by the FBI to the President's Intelligence Oversight Board. The report explains that one of the reasons that occurred was that agents did not review the records they received to check them against the original NSL requests, and this strikes me as a little odd. If, as the FBI has stated, these authorities were so critical to its investigations, why wouldn't agents immediately verify that they had received what they needed and review it to see what insight it provided? Do you think the agents were collecting information with NSLs and then not even reviewing and using that information? And why would they do that? Mr. Fine. Well, I think they were obtaining information, using them, reviewing it to some extent. I don't think there was a careful check to make sure all these telephone numbers are the correct ones that we have asked for, that there wasn't a typo in the thing that went out or that it wasn't a mistake by the provider to give us an additional telephone number that we hadn't requested. So I don't think it was a careful review. I do think that they were using this information and using it in link analysis and databases. So I think it would be a little strong to say that they weren't reviewing it or using it, but they surely weren't doing it carefully enough. Senator Feingold. One of the concerns I have repeatedly raised about the legal standard for NSLs is that it is so lax that any one NSL could arguably be used to obtain entire databases of information about people. And your report actually explains that in 2004 nine NSLs were issued in one investigation for a total of 11,100 separate telephone numbers. You may be limited in what you can say about this in an open setting, but can you tell us any more about the circumstances of that investigation that would lead to thousands of phone numbers being covered by just a few NSLs? Mr. Fine. I think I am limited in discussing an individual case in an open setting, but I would be glad to discuss this further Senator Feingold. Would you give that to us in a classified response in writing at some point? Mr. Fine. Certainly. Senator Feingold. Thank you. Do you know when precisely the FBI General Counsel and the FBI Director learned of the exigent letters practice? Mr. Fine. The practice of exigent letters? We believe that they learned of it when we brought it to their attention, and with regard to the General Counsel, sometime late in--by the practice, I should make clear, sort of the practice of the misuses of them, I believe it was late in 2006, and the FBI Director around that time or shortly thereafter. Senator Feingold. Do you think that these abuses of the NSL authority would have occurred if court orders had been required? Mr. Fine. I can't speculate on that. Senator Feingold. Finally, do you believe that these types of abuses would have occurred if the standard for issuing an NSL had required more individualized suspicion about the individual whose records were being obtained? Mr. Fine. I don't think I can speculate on that either. I think that abuses are going to occur in many settings, but certainly they occurred in a widespread setting here. Senator Feingold. Thank you very much, Mr. Fine. Thank you, Mr. Chairman. Senator Whitehouse. I don't think we have any necessity for closing statements, so the record will remain open for a week, and I thank the Inspector General for his testimony and for his report and for the hard work of his staff. I would like to take a moment, I know that you are here representing an office that has worked very hard to make this happen, and as somebody who has led offices like that before, I know firsthand how important the staff work is that makes something like this all come to pass. So I want to commend, through you, the hard work of your staff as well. The Committee will stand in recess. Mr. Fine. Thank you. 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