REPORT BY THE OFFICE OF THE INSPECTOR GENERAL OF THE DEPARTMENT OF
JUSTICE ON THE FEDERAL BUREAU OF INVESTIGATION'S USE OF EXIGENT LETTERS
AND OTHER INFORMAL REQUESTS FOR TELEPHONE RECORDS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
APRIL 14, 2010
__________
Serial No. 111-85
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
----------
U.S. GOVERNMENT PRINTING OFFICE
55-939 PDF WASHINGTON : 2010
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Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr., TRENT FRANKS, Arizona
Georgia LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois TED POE, Texas
JUDY CHU, California JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois TOM ROONEY, Florida
TAMMY BALDWIN, Wisconsin GREGG HARPER, Mississippi
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
[Vacant]
Perry Apelbaum, Majority Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
MELVIN L. WATT, North Carolina F. JAMES SENSENBRENNER, Jr.,
ROBERT C. ``BOBBY'' SCOTT, Virginia Wisconsin
WILLIAM D. DELAHUNT, Massachusetts TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr., STEVE KING, Iowa
Georgia TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan JIM JORDAN, Ohio
STEVE COHEN, Tennessee
SHEILA JACKSON LEE, Texas
JUDY CHU, California
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
----------
APRIL 14, 2010
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Ranking Member,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties.................................... 4
WITNESSES
The Honorable Glenn Fine, Inspector General, U.S. Department of
Justice
Oral Testimony................................................. 9
Prepared Statement............................................. 11
Ms. Valerie E. Caproni, General Counsel, Federal Bureau of
Investigation
Oral Testimony................................................. 24
Prepared Statement............................................. 26
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Henry C. ``Hank'' Johnson,
Jr., a Representative in Congress from the State of Georgia,
and Member, Subcommittee on the Constitution, Civil Rights, and
Civil Liberties................................................ 6
REPORT BY THE OFFICE OF THE INSPECTOR GENERAL OF THE DEPARTMENT OF
JUSTICE ON THE FEDERAL BUREAU OF INVESTIGATION'S USE OF EXIGENT LETTERS
AND OTHER INFORMAL REQUESTS FOR TELEPHONE RECORDS
----------
WEDNESDAY, APRIL 14, 2010
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:09 a.m., in
room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Nadler, Conyers, Johnson, Cohen,
Chu, Sensenbrenner, and King.
Staff present: (Majority) David Lachmann, Subcommittee
Chief of Staff; Elliot Mincberg, Counsel; and Paul Taylor,
Minority Counsel.
Mr. Nadler. This hearing of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will come to
order. I will begin by recognizing myself for an opening
statement.
Today's hearing examines the latest report by the inspector
general of the Justice Department on the use of exigent letters
and other informal requests for telephone records by the
Federal Bureau of Investigation. This report follows two
earlier reports by the IG's office in March 2007 and March 2008
on the use of national security letters, which did not look at
the use of exigent letters in depth.
This latest report does just that. The findings are
disturbing. They detail hundreds of instances in which the FBI
violated the law and its own internal rules concerning the
collection of telephone records. The inspector general
identified violations of the Electronic Communications Privacy
Act, otherwise known as ECPA, as well as of the USA PATRIOT
Improvement and Reauthorization Act of 2005.
Even more disturbing, this is not the first time we have
had to have the inspector general and the FBI here to explain
why the law was violated, why the privacy of law-abiding
Americans was illegally invaded, and at this point why repeated
assurances that the problem was solved apparently amounted to
very little.
While it should be reassuring that the practice of issuing
exigent letters has been stopped, the reckless disregard for
the law and for the privacy rights of the American people does
not bode well for the future. We have laws for a reason, and it
is not reassuring to have the IG come here yet again to tell us
that those responsible for enforcing the laws appear to have a
problem with obeying the law. That is unacceptable.
The people who wrote our Constitution did not believe that
trust and assurances were sufficient to protect our rights. The
government is required under our Constitution to answer to an
independent judiciary before it can invade our privacy. To the
extent that the Fourth Amendment has been found not to reach
certain surveillance, Congress has attempted to enact
legislation to balance the needs of law enforcement with the
rights of individuals. Self-regulation, however, as the
founders correctly understood, provides poor protection for our
rights.
In addition to examining the IG's findings and how the FBI
intends to respond to those findings, the Subcommittee will be
reviewing the current status of the Electronic Communications
Privacy Act to determine whether technological advances over
the years require that we update the act and whether we must
amend the act perhaps with criminal sanctions to avoid
government officials acting in total contempt of the law and of
the legitimate privacy rights of law-abiding citizens. But that
is a matter for another day.
For today I want to welcome our witnesses, and I look
forward to your testimony.
I yield back the balance of my time, and the Chair will now
recognize the distinguished Ranking Member for 5 minutes for an
opening statement.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
A series of reports issued by the Department of Justice
Office of Inspector General most recently this January indicate
that between 2002 and 2006 consumer records held by telephone
companies have been provided to the FBI through the use of
exigent letters. There are other informal methods that fell
outside the national security letter process embodied in
statute and internal FBI processes.
The purpose of this hearing is to examine the IG's January
2010 report, which focuses on the existence and use of exigent
letters, which were presented to telecommunications providers
in lieu of the national security letters or Federal grand jury
subpoenas.
These letters requested the production of telephone records
in conjunction with an assertion that legal process would
follow. This practice circumvented the law that authorizes the
use of national security letters for obtaining these types of
records, which I would note consist of business records and not
the content of any telephone communications.
The practice of using exigent letters was stopped
approximately 3\1/2\ years ago. While the inspector general
faulted the FBI and specific members of the FBI management and
supervisory ranks for poor managerial and supervisory
oversight, there was no finding of criminal intent. While the
use of these letters did circumvent the law, the IG found no
intentional criminal activity on the part of any FBI employee.
As a matter of routine, the findings of this inspector
general investigation were presented to DOJ's Criminal Division
for a prosecutive opinion. The DOJ declined prosecution. Now
that the inspector general report has been issued, the FBI
employees involved are still subject to discipline from the
Office of Professional Responsibility.
Now, there is no excuse for a failure to violate either the
law or internal Justice Department policy, but there is
context. First, the inspector general did recognize that some,
but not all, of the FBI's requests may have been made in
circumstances that qualified as emergency under the applicable
emergency voluntary disclosure provision. For example, exigent
letters and other formal requests were used to obtain records
in connection with the investigation of a terrorist plot to
detonate explosives.
Second, the IG noted that inaccurate statements may have
been nonmaterial to a FISA application. Third, the IG notes
that after it issued its first national security letter report
from March of 2007, the FBI took several appropriate actions to
address the problem created by exigent letters.
The FBI ended the use of exigent letters, issued clear
guidance on the proper use of NSLs and the Electronic
Communications Privacy Act emergency voluntary disclosure
statute and conducted an audit of NSLs issued by Field and
Headquarters Division from 2003 to 2006.
The FBI also directed that its personnel be trained on NSL
authority, agreed to move the communications services employees
off the FBI premises, and extended significant efforts to
determine whether improperly obtained records could be retained
or purged from FBI databases.
The IG also found that the FBI's approach to determine
which records to retain and which to purge was reasonable, and
that the review process and other corrective measures issued
since the issuance of the inspector general's first NSL report
in March of 2007 may have been reasonable.
Finally, the inspector general made it clear that it
recognized that the FBI was confronting major organizational
and operational challenges during the period covered by our
review. Following the September 11 attack, the FBI overhauled
counterterrorism operations, expansion of its intelligence
capabilities, and began to upgrade its information technology
system.
Throughout the 4-year period covered by this review, the
Counterterrorism Division was also responsible for resolving
hundreds of threats each year, some of which, such as bomb
threats, are threats to significant national events needed to
be evaluated quickly. Many of these threats, whether linked to
domestic or international terrorism, resulted from a large
number of high-priority requests of the Communications Analysis
Unit.
Members of the FBI senior leadership told us they placed
great demands on the Communications Analysis Unit and other
headquarters units. The FBI director stated that he placed
tremendous pressure on personnel to respond to terrorism
threats. Other senior FBI officials stated that there were
countless days when headquarters personnel worked through the
night and on weekends to determine whether information the FBI
received from various sources presented threats to the United
States.
Indeed, some of the exigent letters and other important
practices we described in this report were used to obtain
telephone records that the FBI used to evaluate some of the
more serious terrorist plots posed to the United States in the
last few years. In our view these circumstances provide
important context for the inspector general's report.
I look forward to hearing from our witnesses today.
Mr. Nadler. I thank the gentleman.
I will now recognize for 5 minutes for the purpose of an
opening statement the distinguished Chairman of the Judiciary
Committee, the gentleman from Michigan.
Mr. Conyers. Thank you, Chairman Nadler. I want to commend
you and your Ranking Member, Jim Sensenbrenner, because this is
a very important hearing.
And we have an interesting situation here. The inspector
general here, the Honorable Glenn Fine of the Department of
Justice, has a reputation as one of the most effective
inspector generalqs in the practice. And I think what we have
here is something that needs further probing.
I commend Jim Sensenbrenner. Because of him we did not
remove from the PATRIOT Act the provision that the inspector
general report--that the inspector general's office shall
review information and complaints and submit to the Committee
on the Judiciary the very nature of the matters that we have
before us.
I am outraged that somebody in the FBI would invent the
term ``indigent letters''--``exigent letters''--invent it. It
is not in the PATRIOT Act. It never has been. And its use,
perhaps coincidentally, began in the same month that Ms.
Valerie Caproni began her work as general counsel.
It took 3 years for us to find out that this practice had
been going on, and I think that what these hearings--this one,
the one before--have demonstrated to me is that there must be
further investigation as to who and where and how somebody in
the Federal Bureau of Investigation could invent a practice and
have it allowed to be going on for 3 consecutive years.
And so I propose that I hope that this Committee and its
leadership will join me, because I think that there may be
grounds for removal of the general counsel of the FBI. And
certainly, there has obviously got to be some disciplinary
action from the Office of Professional Responsibility.
What is this? How can we be listening to this kind of
illegal conduct going on by the law officers of the Department
of Justice, and we are talking about it as an accident, it is a
mistake, it was an oversight? And this is an invented, illegal
act.
And I hope that somebody else on this Committee will join
us in this investigation. I have already secured the agreement
of cooperation from its Chairman. I have not had the
opportunity to discuss this with Mr. Sensenbrenner or Mr. Steve
King, too, or anybody else on the Committee. And I intend to do
that.
I yield back my time.
Mr. Nadler. I thank you, Mr. Chairman.
In the interest of proceeding to our witnesses and mindful
of our busy schedules, I ask that other Members submit their
statements for the record. Without objection, all Members will
have 5 legislative days to submit opening statements for
inclusion in the record. Without objection, the Chair will be
authorized to declare a recess of the hearing.
[The prepared statement of Mr. Johnson follows:]
Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a
Representative in Congress from the State of Georgia, and Member,
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Nadler. We will now turn to our witnesses. As we ask
questions of our witnesses, the Chair will recognize Members in
order of their seniority in the Subcommittee and alternating
between majority and minority, provided that the Member is
present when his or her turn arrives. Members who are not
present when their turns begin will be recognized after the
other Members have had the opportunity to ask their questions.
The Chair reserves the right to accommodate a Member who is
unavoidably late or only able to be with us for a short time.
We have only two witnesses today. First is Glenn Fine, who
was confirmed as the inspector general for the Department of
Justice on December 15, 2000. Mr. Fine had worked at the
Department of Justice Office of the Inspector General since
January 1995, initially as special counsel to the IG. In 1996
he became the director of the OIG Special Investigations and
Review Unit.
Before joining the OIG, Mr. Fine was an attorney
specializing in labor and employment law at a law firm in
Washington, D.C. Prior to that, in 1986 to 1989, Mr. Fine
served as an assistant U.S. attorney in the Washington, D.C.,
U.S. Attorney's Office.
Mr. Fine graduated magna cum laude from Harvard College,
was a Rhodes scholar, earning a BA and MA degree from Oxford
University, and received his law degree magna cum laude from
Harvard Law School.
Valerie Caproni has been the general counsel for the FBI
since 2003. In 1985 Ms. Caproni became an assistant U.S.
attorney in the Criminal Division of the United States
Attorney's Office Eastern District of New York, where she would
subsequently serve as chief of special prosecutions and chief
of the organized crime and racketeering section before becoming
chief of the criminal division in 1994.
In 1998 she became the regional director of the Pacific
Regional Office of the Securities and Exchange Commission. She
served there until 2001, when she joined the firm of Simpson
Thacher & Bartlett, where she worked until her appointment as
general counsel by Director Mueller.
She graduated magna cum laude from Newcomb College of
Tulane University and received her JD summa cum laude from the
University of Georgia.
I am pleased to welcome both of you. Your written
statements in their entirety will be made part of the record. I
would ask each of you to summarize your testimony in 5 minutes
or less. To help you stay within that time, there is a timing
light at the table. When 1 minute remains, the light will
switch from green to yellow, and then red when the 5 minutes
are up.
Before we begin, it is customary for the Committee to swear
in its witnesses, if you would please stand and raise your
right hand to take the oath.
Let the record reflect that the witnesses answered in the
affirmative.
You may be seated.
Our first witness, whom I will recognize for an opening
statement, will be Inspector General Fine.
TESTIMONY OF THE HONORABLE GLENN FINE, INSPECTOR GENERAL, U.S.
DEPARTMENT OF JUSTICE; MS. VALERIE CAPRONI, GENERAL COUNSEL,
FEDERAL BUREAU OF INVESTIGATION
Mr. Fine. Mr. Chairman, Ranking Member Sensenbrenner,
Members of the Committee----
Mr. Nadler. Could you use your mic a little closer? Thank
you.
Mr. Fine. Thank you for inviting me to testify about the
OIG's recent report examining the FBI's use of exigent letters
and other informal requests to obtain telephone records. The
OIG completed two previous reports in 2007 and 2008 which
described the FBI's misuse of national security letters and
which also noted the FBI's practice of issuing exigent letters.
In our most recent report that was issued in January 2010
and that is the subject of this hearing, we examined in depth
the use of exigent letters, which requested telephone records
based on alleged exigent circumstances. We also identified
other informal ways by which the FBI obtains telephone records.
In my testimony today I will briefly summarize the findings of
our report, our recommendations, and the FBI's response to
them.
Our report found that from March 2003 to November 2006, FBI
personnel in the Communications Analysis Unit (CAU), issued at
least 722 exigent letters for more than 2,000 telephone records
to the three telecommunications service providers located at
the FBI.
We found that, contrary to the statements in the letters,
emergency circumstances were not present when many of the
letters were issued. Also contrary to the letters, in most
cases subpoenas had not been sought for the records. In
addition, our investigation found widespread use of even more
informal requests for telephone records in lieu of appropriate
legal process or qualifying emergency.
For example, rather than using national security letters,
other legal process, or even exigent letters, FBI personnel
frequently sought and received telephone records based on
informal requests they made to the onsite telecommunication
employees by e-mail, by telephone, face to face, and even on
Post-it notes. FBI personnel made these kinds of informal
requests for records associated with at least 3,500 telephone
numbers, although we could not determine the full scope of this
practice because of the FBI's inadequate record-keeping.
The FBI also received information about telephone records
from so-called ``sneak peeks,'' whereby the company employees
would check their records and give the FBI a preview of the
available information for phone numbers or a synopsis of the
records without any legal process or documentation of the
request.
Our investigation identified other troubling practices
related to FBI requests for telephone records, such as
community of interest requests, requests on hot numbers without
any legal process, and misuse of administrative subpoenas.
Our report also details three FBI media leak investigations
in which the FBI sought telephone toll billing records or other
calling activity information for telephone numbers assigned to
reporters without first obtaining the approvals from the
Attorney General that are required by Federal regulation and
Department of Justice policy.
Our report concluded that the exigent letters and other
informal requests for telephone records represented a
significant breakdown in the FBI's responsibility to comply
with the law, Attorney General guidelines, and FBI policy.
Our report also analyzed the attempts made by the FBI from
2003 through March 2007, when we issued our first NFL report,
to address these practices. We concluded that during this time
period, the FBI's corrective actions were seriously deficient,
ill-conceived, and poorly executed. For example, the FBI issued
legally deficient blanket national security letters in an
attempt to cover or validate prior telephone records requests.
By contrast, we concluded that after our first report was
issued in 2007, the FBI took appropriate and reasonable steps
to address the problems that its deficient practices had
created, and we believe that the FBI should be credited for
these actions. For example, the FBI ended the use of exigent
letters, issued clear guidance on the use of national security
letters and on the proper procedures for requesting records in
emergency circumstances, and provided training on this
guidance.
In addition, the FBI moved the three service providers out
of the FBI offices. The FBI also expended significant efforts
to determine whether improperly obtained records should be kept
or should be purged from the FBI databases.
Our report also assesses the accountability of FBI
employees for these practices. We concluded that every level of
the FBI, from the most senior FBI employees to the FBI's Office
of General Counsel to managers in the Counterterrorism Division
to supervisors in the CAU to the CAU agents and analysts who
repeatedly signed the letters, were responsible in some part
for these failures.
Finally, our report made additional recommendations to the
FBI and the Department to ensure that FBI personnel comply with
the law and FBI policy when obtaining telephone records. We
recently received the FBI's response to these additional
recommendations, and we believe that the FBI is taking them
seriously.
In sum, the national security letters and other authorities
that are the subject of our report are important investigative
tools for the FBI to carry out its counterterrorism mission.
However, it is essential that they be used in full compliance
with applicable statutes, Attorney General guidelines, and FBI
policies. The FBI needs to be vigilant in ensuring that it does
so, and the OIG will continue to monitor the FBI's exercise of
these important authorities.
That concludes my prepared statement, and I would be
pleased to answer any questions.
[The prepared statement of Mr. Fine follows:]
Prepared Statement of the Honorable Glenn A. Fine
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Nadler. Thank you.
I now recognize Ms. Caproni.
TESTIMONY OF VALERIE E. CAPRONI, GENERAL COUNSEL, FEDERAL
BUREAU OF INVESTIGATION
Ms. Caproni. Good morning, Mr. Chairman, Ranking Member
Sensenbrenner, and Members of the Subcommittee. It is my
pleasure to appear before you today to discuss the recent
report by the Department of Justice's Office of the Inspector
General and the FBI's use of exigent letter and other informal
requests for telephone records.
The 2010 report discusses the practice of one FBI
headquarters unit of issuing so-called exigent letters to
obtain telephone toll records, not the contents of any calls.
That practice, which ended almost 3\1/2\ years ago and began
well before my tenure at the FBI, reflected a failure of
internal control. It was, however, a wake-up call for the FBI.
Although we cannot unring the bell, we have used the
lessons learned from this situation to substantially change our
internal control and compliance environment. Since 2007 when
the issue of the use of exigent letters was first disclosed,
the FBI has significantly improved its policies, training and
procedures for requests for information protected by the
Electric Communications Privacy Act, or ECPA.
The lessons learned from this experience went well beyond
ECPA, national security letters, and exigent letters. Instead,
we saw the exigent letters situation as emblematic of the need
to systematically and carefully assess compliance risks across
the FBI, but particularly in the national security arena.
That realization led to the formation of the Office of
Integrity and Compliance, whose mission is to ensure FBI
compliance with both the letter and spirit of all applicable
laws and regulations. We have seen that program as a positive
step and should help prevent future situations like the one
encountered with exigent letters.
As the OIG discussed at length in this report and the 2007
NSL report, there were over 700 exigent letters that requested
toll billing records for various telephone numbers. All of the
numbers stated that there were--all of the letters stated that
there were exigent circumstances and that either a Federal
grand jury subpoena or an NSL would follow.
Sometimes there was no emergency, but even when there was--
and many, many times there was an emergency--the FBI did not
keep adequate records reflecting the nature of the emergency,
the telephone numbers for which records were sought, and
whether the promised future process, which many times was not
legally required, was ever issued.
It should be emphasized that exigent letters were not and
were never intended to be NSLs. Rather, they appear to have
been a sort of placeholder born out of a misunderstanding of
the import of the USA PATRIOT Act's amendment to ECPA. Much to
our regret, in the years following that act, the FBI did not
adequately educate our workforce that Congress had provided a
clear mechanism to obtain records in emergency situations, and
it was not the mechanism they were using.
In March 2007 the FBI formally barred the use of exigent
letters to obtain telephone records and established clear
policies for FBI employees to follow during emergencies. That
process is in full compliance with 18 USC Section 2702, which
permits a carrier to provide subscriber and toll record
information if the provider in good faith believes that an
emergency involving danger of death or serious physical injury
to any person requires disclosure without delay of information
relating to the emergency.
The OIG's 2010 report discusses in detail 11 so-called
blanket NSLs. As we briefed the full Committee in 2007, the
blanket NSLs were a good faith, but ill-conceived attempt by
the Counterterrorism Division to address the backlog of numbers
for which the FBI believed it had unfulfilled obligations to
provide legal process as they had promised through the exigent
letter practice.
The FBI dedicated significant resources to researching all
4,400 of the telephone numbers that appeared on known exigent
letters and on the so-called blanket NSLs to ensure that we
retained only telephone records for which we had a lawful
basis. We appreciate the finding of the OIG that our approach
to determine which records to retain and which to purge was
reasonable.
The OIG also addresses other informal requests for
telephonic information, the intersection of exigent letters and
FISA, and an OLC opinion. I would be happy to discuss those
issues with you today, except for the OLC opinion, which can
only be discussed in a classified setting. As to the OLC
opinion, I can, however, say that it did not affect in any way
either our actions from 2003 to 2006 or the records retention
decisions made by the FBI as part of the reconciliation project
I just discussed.
During prior hearings before this Committee and others,
Members have asked whether employees who have participated in
issuing exigent letters would be prosecuted or punished. DOJ's
Public Integrity Section declined prosecution, but the FBI's
Office of Professional Responsibility will review the OIG
findings, and determine whether any discipline of any employee
is appropriate.
To that end, we appreciate the report's recognition that
FBI employees involved in this matter were attempting to
advance legitimate FBI investigations. This does not excuse our
failure to have in place appropriate internal controls, but it
puts the actions of those employees in context. Many times they
were obtaining telephone records that were necessary to
evaluate some of the most serious terrorist threats posed to
the United States in the last few years.
Nevertheless, we know that we can only keep the country
safe if we are trusted by all segments of the American public,
including Congress, to use the tools we are given responsibly.
We believe that the changes we have made in the recent several
years reflect just how seriously we took this breach of that
trust.
I appreciate the opportunity to appear before the
Subcommittee and look forward to answering your questions.
Thank you.
[The prepared statement of Ms. Caproni follows:]
Prepared Statement of Valerie E. Caproni
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Nadler. Thank you.
I will begin the questions. I recognize myself for 5
minutes to begin questioning.
First, Ms. Caproni, the IG report raises a potentially
troubling concern relating to FBI's statements to this
Committee. The IG carefully reviewed the FBI process for
determining whether to keep or to purge the telephone records
improperly obtained because of exigent letters or a similar
method. The report concluded that the FBI's final
determinations were reasonable, even though in some cases the
FBI may have kept records that were not relevant to an
authorized investigation at the time they were obtained.
But in testimony before this Committee, FBI officials,
including Ms. Caproni, went further. As the IG report points
out, Ms. Caproni specifically testified before the full
Committee in 2007 that if any records were found that were not
in fact relevant to an authorized investigation, they would be
``removed from our database,'' and ``destroyed.''
Accepting the IG's conclusion that the ultimate FBI
decision was a reasonable one, I am troubled by the fact that
the FBI apparently did not do what it told the Committee it
would do and did not communicate this to us. Indeed, we first
learned that it had not destroyed the information it had said
it would when we first learned about this matter from the IG
report. Can you explain this discrepancy, please?
Ms. Caproni. The process that we went through was a
laborious one, and it was designed to ensure that there was in
fact a legal basis for any telephone records that we retained.
The first step of that analysis was to determine whether any
process had already been issued, and that was frequently found
to be the case.
If process had not already been issued, then we next looked
to whether we could now issue process, meaning is the record
relevant to an open investigation. Sometimes we couldn't do
that, because the investigation had already been closed. When
that happened, we dropped to the next step of the analysis, and
the next step of the analysis was whether at the time we
received the record, whether there was in fact an emergency
that would have qualified under 2702. If there was, even though
there wasn't then open an investigation to which the records
were relevant, we would retain the records.
You know, we were trying to do the best we could to fix the
situation that was not of our making. So in fact--I am sorry,
so in fact we have no record----
Mr. Nadler. Yes, I--excuse me--excuse me a second. Granted
all of this, the IG report concluded the actions taken were
reasonable. I don't dispute that.
What I am asking is--and you are addressing that you took
reasonable actions, and granted, no one is questioning that.
What I am questioning is that the testimony at the hearing was
not that reasonable action would be taken, but that if any
records were found that were not in fact relevant to an
authorized investigation, they would be removed from the
database and destroyed.
Apparently, that was not done, and this Committee was not
notified that contrary to the assurances the Committee had
received that that would be done, that it was not in fact done.
That is what I am asking for an explanation.
Ms. Caproni. Congressman, I think the issue is one of
timing. So the issue is the records were relevant to an
authorized investigation. The question is whether that
investigation was still open at the time. So there was no
evidence I have seen throughout the entire reconciliation
project, no evidence that records were obtained that were
simply not relevant to what the FBI was doing. The question is
whether at the time we were looking at the record----
Mr. Nadler. Yes, I get that--whether it was still relevant.
Ms. Caproni [continuing]. There was still an open
investigation.
Mr. Nadler. Okay. Mr. Fine, could you comment on that?
Mr. Fine. It was an unpalatable situation they found
themselves in, inexcusable that they were in that situation.
Once they were in that situation, we looked at it and said,
``What would be the best thing to do, given the difficult
alternatives?'' And we concluded it was reasonable. It was not
exactly as it was understood in the beginning, but the process
evolved, and we concluded again.
Mr. Nadler. No, it was reasonable, but----
Mr. Fine. Yes.
Mr. Nadler [continuing]. Would you conclude that there were
not in fact--would you agree that there were not in fact
records not relevant to an investigation that were not
destroyed, which would be contrary to the assurances given to
this Committee?
Mr. Fine. I do agree with Ms. Caproni. It depends on what
time you are talking about.
Mr. Nadler. Okay.
Mr. Fine. At the time they were looking at it, an
investigation was closed, but they had to time travel back and
forth to see when it was. So that is a difficult situation. We
do not criticize that.
Mr. Nadler. Okay.
I am also concerned, Mr. Fine, that one conclusion that
comes from this report and all three of your reports on the
FBI's use of NSLs and exigent letters, all of the reports make
clear that there was serious misconduct, including violations
of law with respect to FBI efforts to obtain private
information on Americans without a warrant or other prior
approval by a judge. That is always a risk when agencies can
obtain such private information without a judicial order.
What are your plans concerning oversight of the FBI in this
area? And what do you think Congress should do to help make
sure that such FBI authority is not abused as it was in this
case? Let me just say again--let me just amplify the question.
The Ninth Circuit in a decision on a different question of
state secrets said that the executive cannot be its own judge.
That seems to me to encapsulate much wisdom in this area, that
you cannot trust the executive--I don't care who the President
is--executive per se or any particular agency to be its own
judge. ``Trust me'' is not something that you can rely on to
protect our liberties and our privacy.
So what are your plans concerning, in light of that,
oversight of the FBI? And what should Congress do to help make
sure that such FBI authority is not abused?
Mr. Fine. We intend to continue to monitor this, the use of
these authorities. We think it is important that we do so.
Initially, we are going to look at the FBI's progress on
addressing the recommendations we have made in all three of our
reports. We made 10 in the first one, 17 in the second one, 13
in this one. We believe they have made progress, but as the
Office of the Inspector General, we need to verify, we need to
review, we need to make sure they do that.
We also intend to look at their use of the authorities, and
we will continue to do this in conjunction, too, with the
Department's review of it. The National Security Division is
doing extensive reviews of it. So I think that it is very
important that we continue to monitor, oversee, and assess it.
I think it is very important for Congress to do so as well. I
think these kinds of hearings are important to hold the FBI
accountable, to hold their feet to the fire, to make sure that
they follow through what they say they are going to do in terms
of accountability. So I think that is very important.
I also think, as I stated in my testimony, that the issue
about the Office of Legal Counsel opinion about an authority
that they have raised is important for Congress to look at and
make sure they are----
Mr. Nadler. To look at what?
Mr. Fine. The authority that the Office of Legal Counsel
opinion said was with the FBI. We provided certain records that
I can describe in an unclassified setting--it is very important
for Congress to look at that to see whether there ought to be
statutory accountability provisions related to that authority.
Mr. Nadler. And, finally, do you think that perhaps that
aside, Congress should legislate in terms of any other way in
terms of enforcement, perhaps making violations of this in any
way criminal, such as was done with FISA, although that doesn't
seem to have worked very well?
Mr. Fine. At this point I am not certain that I would go
there and say it has to be criminal violations, but I do think
that there are existing oversight mechanisms that need to be
rigorously enforced to hold the FBI accountable, including
disciplinary actions in the appropriate case.
Mr. Nadler. Thank you very much.
My time has expired. I will now recognize for 5 minutes the
distinguished Ranking Member of the Subcommittee, the gentleman
from Wisconsin.
Mr. Sensenbrenner. Thank you, Mr. Chairman.
I guess my comments today are going to be more a discussion
of my frustration. As both of you know, I was the author of the
PATRIOT Act and the PATRIOT Act reauthorization of 2006, and I
withstood the assaults of my friend seated to my right in both
of those cases. And I am seeing a pattern that the FBI really
wants to get around various restrictions that the PATRIOT Act
put on their activities.
For example, with the original PATRIOT Act, the FBI and DOJ
wanted to have administrative subpoena, and that got very
little support from the Congress and was not included in the
PATRIOT Act. The section 215 business records provisions were
very controversial. And what did the FBI do? They didn't seek
section 215 authority for business records, but they used the
national security letter statute, which was passed in 1986 and
was merely rearranged to be a part of the PATRIOT Act statute
in the statute books, so this wasn't a new authority that was
given.
And when the reauthorization came up for review, we found
that there were all kinds of problems with that, and the
PATRIOT Act reauthorization act of 2006 had a number of, in my
opinion, constitutionalizing provisions in the national
security letters, giving people a right to a court review
similar to a motion to quash a subpoena.
So then what happens is we get these exigent letters that
were never authorized by any kind of statute, and it took a big
stink to stop those, and we are talking about how the material
obtained according to the exigent letters were scrubbed or not
scrubbed.
Now, Ms. Caproni, you were the general counsel of the FBI
during most of this period of time, and I imagine that you
either initiated or signed off on a lot of these procedures
that were designed to do things that the FBI didn't like in the
PATRIOT Act and its reauthorization, because they were not
approved by Congress. And, you know, as a result, ordinarily I
don't agree with going on a witch hunt, but I certainly am not
unsympathetic to the comments made by my distinguished
successor as Chairman of the full Committee about what is going
on in your office.
You know, I have discussed these matters extensively when I
was Chairman and afterwards with Director Mueller and with
successive Attorneys General, and I don't think you are getting
the message. Will you get the message today?
Ms. Caproni. Congressman, quite the contrary, (a) I have
gotten the message, and I have had the message for several
years. The Office of General Counsel did not sign off on the
exigent letters. There was a point in time when a staff lawyer
became aware of them. The fact----
Mr. Sensenbrenner. Well, then who did sign off on the
exigent letters?
Ms. Caproni. The Counterterrorism Division did.
Mr. Sensenbrenner. Okay. Well, who is in charge of
determining whether the FBI is following the law or not?
Ms. Caproni. We are. There is no doubt about it.
Congressman, I have never done anything other than acknowledge
to this Committee and every other Committee of Congress that
this was a massive failure of internal controls. There is no
doubt about that.
Mr. Sensenbrenner. Well, you know, I am not feeling so
charitable about that, because I did the fighting with the FBI.
I know administrative subpoenas, section 215 authority, which I
defended, and then I find out after defending it, instead of
using section 215, you used national security letters, you
know, where there is no right for the recipient to go to court.
And I put the rights for the recipients to go to court in, and
then when that happened, then the exigent letters, you know,
started.
You know, all I can say is, you know, I am extremely
disappointed that every time Congress has tried to plug
potential civil rights and civil liberties violations in our
counterterrorism activities, the FBI seems to have figured out
a way to get around it. You know, I came to this whole issue as
your friend, more than my Subcommittee and full Committee
Chairs, and I feel betrayed.
I yield back the balance of my time.
Ms. Caproni. Congressman, I understand that frustration. I
truly do. But I do think that the Office of General Counsel has
worked very hard to make sure that we actually stay within the
lines that Congress has set. It is a big organization. We work
very----
Mr. Sensenbrenner. But you haven't. That is the point.
Ms. Caproni. We work very hard.
Mr. Sensenbrenner. And that is why the inspector general is
making these reports. And I was concerned about this type of
evasion when I put the annual inspector general's report in the
PATRIOT Act, simply because I was afraid that having the fox
guard the chicken coop down the street was going to result in
activities that would end up embarrassing the government when
they are in the middle of a sensitive counterterrorism
investigation.
Ms. Caproni. And we welcome the oversight from the
inspector general. We also welcome the oversight from the
National Security Division of the Department of Justice. The
Inspection Division does a great deal of work in this area. We
are trying our best to maintain within a very large workforce
adherence to all of the rules and policies while still giving
our employees the freedom of movement so that we can stop
terrorist attacks against the country.
Mr. Nadler. Would the gentleman yield for a moment?
Mr. Sensenbrenner. I think I will yield whatever is left of
my time, since the red light went out.
Mr. Nadler. Well, it is a failure of electricity, I am
sure.
I would just like to observe, agreeing with the
distinguished gentleman, that despite all the efforts that you
mention of the General Counsel's Office, there is a clear
pattern here of deliberate evasion--deliberate on somebody's
part.
First, the FBI seeks certain statutory authorities for
administrative subpoenas. Congress says no. We put in section
215. They use NSLs. We put in more protections for NSLs. They
invent exigent letters until we catch--or the inspector general
catches up with them.
In every case it seems that the FBI is doing what it wanted
to do in order to accomplish surveillance without appropriate
checks and balances beyond what Congress authorized. And
whenever Congress said, ``Thus far, and no farther,'' it went
farther.
So it may be that in the last couple of years since 2007,
we are told by Mr. Fine, that in the second wave of change--the
first wave was ineffective--the second wave may finally have
begun to rein this in properly. But meanwhile, there does
appear to have been for a number of years a pattern of very
deliberate evasion of the law. And whether your office knew
about it or not is a different question, but somebody did.
I yield back.
Ms. Caproni. Congressman, there is something about the
chronology here that the Committee seems to be focused on that
I need to correct. There was no substitution of NSLs for the
power and the authority that was provided to us in 215. 215
provided very broad----
Mr. Sensenbrenner. You know, ma'am, with all due respect, I
lived in this for 6 or 7 years as I was trying to pass the Bush
administration's counterterrorism legislation. And I had to
defend what the Bush administration was doing against my
Democratic friend. That is why I said I feel betrayed, because
every time we tried to patch up a hole in what the FBI was
doing, you figured out to put another hole in the dike. And
this little Dutch boy has only got 10 fingers to plug holes in
the dike.
Ms. Caproni. Again, I just want to make sure that the
chronology in terms of what happened is correct. And it is not
the case that exigent letters were adopted as some sort of way
to get around the advances that were put in----
Mr. Nadler. That is--that is----
Ms. Caproni [continuing]. The provisions that were put into
the NSLs in the PATRIOT Reauthorization Act.
Mr. Nadler. The gentleman's time has expired. I will simply
observe----
Ms. Caproni. It started before then. The two had nothing to
do with each other.
Mr. Nadler. Okay. The gentleman's time has expired.
The gentleman from Georgia is recognized.
Mr. Johnson. Thank you, Mr. Chairman and Mr. Ranking
Member, for holding this very important meeting on this issue.
I will start with the Fourth Amendment to the United States
Constitution. The right of the people to be secure in their
persons, houses, papers and effects under unreasonable searches
and seizures shall not be violated, and no warrants shall issue
but upon probable cause supported by oath or affirmation and
particularly describing the place to be searched and the person
or things to be seized.
And I would point out the fact that the right of the people
or a person, and the U.S. Supreme Court has affirmed that a
corporation is a person for many various reasons, some of which
are objectionable. But I will ask you that the exigent letters,
which have no basis in Federal statute or by way of the
Constitution, how does the use of these exigent letters square
with the Fourth Amendment?
Ms. Caproni. Congressman, the telephone records being held
by the phone company, as to the phone company, the phone
company has a right to give their records or not give their
records in accordance with statute. As to the customer----
Mr. Johnson. Well, they----
Ms. Caproni [continuing]. The customer does not have what
is known as interest in those records.
Mr. Johnson. Well, a company does not have to give up its
private records without some kind of legal compulsion to do so,
correct?
Ms. Caproni. It need not. It is their choice, because they
are their records. They have to comply with the law, and in
this particular case ECPA governs these records.
Mr. Johnson. And so in this situation, the FBI contacts an
American corporation, say, AT&T, Verizon, any of the others,
and says, ``Look, we need these records, these telephone call
records. And we will get you a subpoena for them or we will get
you a national security letter to back up this request, but we
are having an emergency, and we need the information now.''
Ms. Caproni. That is correct. And that is exactly what 18
USC 2702 permits. The problem was the promise of follow-on
process. If it is truly an emergency that qualifies under 18
USC 2702, the phone company is entitled to provide the records
to the FBI----
Mr. Johnson. Well, now, where did the exigent letters
somehow enter into this process as a legal means of obtaining
that information?
Ms. Caproni. You know, Mr. Fine has just done a 300 or 350-
page report on how it got in there. I think it came----
Mr. Johnson. Would you just capsulize, yes, please?
Ms. Caproni. In sort of capsulization, it was a follow on
to what had been being done right immediately after 9/11 in New
York as a way to get records in a true emergency. And that
process got moved into a different environment it should not
have. And moreover, during the interim Congress had legislated
in this area and said when you have a real emergency, this is
what you need to do. And that law did not get sufficiently
inculcated into our workforce.
Mr. Johnson. Mr. Fine, how would you respond? Would you
comment on that answer, please?
Mr. Fine. I would respond that exigent letters started in
New York in connection with the criminal investigation after
the September 11th attacks, when people from New York went into
FBI headquarters to establish the Communications Analysis Unit.
That practice migrated to that unit. It was inappropriate.
There is no authority for them to provide exigent letters with
follow-up legal process.
There is a ECPA statute that they needed to follow. They
didn't follow it. They simply used this process, and when
people had questions about it, they didn't adequately address
the questions. They just simply went on with the process, and
it was improper, it was inappropriate, and it was wrong.
Mr. Johnson. And then destroyed or lost records which
documented the precise actions that were taken and the need for
those actions, correct?
Mr. Fine. Well, they never kept the records. I mean, they
would not keep adequate records of this. They wouldn't keep the
exigent letters in a database. They didn't keep national
security letters. It was incredibly sloppy practices that they
took. And it made our job difficult even figuring out how often
it occurred and when it occurred.
Mr. Johnson. Has there been a request made by any
stakeholder for a special prosecutor to be called for or
requested by the Attorney General for reasons that I think have
already been stated? How can a executive investigate or be the
judge of their own conduct, as Chairman Nadler put it? Has
there been such a request? And if such a request was made,
would you support it, Mr. Fine, and also Ms. Caproni?
Mr. Fine. I am not aware of any request. There may have
been one. What I am aware of is we did a very--we believe it
was a very thorough investigation of the facts and
circumstances. We put it in our report, and we provided it to
the Public Integrity Section of the Department of Justice.
Mr. Johnson. Nobody has been punished for this, have they?
Mr. Fine. Not yet. The----
Mr. Johnson. Not even an adverse employment decision or
adverse action against any of the employees, who employed these
techniques?
Mr. Fine. Well, we finished our report in January and
provided it to the FBI. My understanding is the Office of
Professional Responsibility is reviewing the report and
determining what action is appropriate in that regard.
Mr. Johnson. Ms. Caproni?
Ms. Caproni. Mr. Fine is correct. The issue of what, if
any, action will be taken against individual employees is
currently pending with the Office of Professional
Responsibility within the FBI.
Mr. Johnson. Does that office have the ability to refer to
the criminal investigation side?
Ms. Caproni. Well, that has already been done. The IG
referred it to the Public Integrity Section, who declined
criminal prosecutions. We are now moving on and discussing the
issue of whether there will be disciplinary action taken, and
the Office of Professional Responsibility has very broad
ranging authority to impose discipline, everything from a
censure to discharge of the employee.
Mr. Johnson. Thank you, Mr. Chairman.
Mr. Nadler. Do you have any more?
I am informed that we have another Member who wants to
question, who will be here. I am informed we have another, so I
will take advantage of the interim before she arrives to ask
another question, if I may.
Let me ask you, Ms. Caproni. After reviewing your
correspondence with various Department of Justice officials,
the OIG report concludes that you were not on sufficient notice
of the use of exigent letters before the OIG's investigation
began. How could this practice have escaped legal, the notice
of your office, your notice for so long? How could you not have
known about this?
Ms. Caproni. Me personally?
Mr. Nadler. Well, you personally or your office.
Ms. Caproni. Again, my office had awareness. There was a
line attorney who was aware of the practice. There have been
some discussions. I don't think that the lawyers in fairness,
and I think this is really what the inspector general
concluded, that the deputy over that area of my office was not
aware of the scope of the problem. Because of that, it did not
get raised to my----
Mr. Nadler. But he knew that there was a problem, but he
didn't think it necessary to inform you.
Ms. Caproni. I am sorry. Say that again?
Mr. Nadler. He was not aware of the scope of the problem,
though he knew there was a problem, but because he was not
aware of the scope of the problem, he did not feel it necessary
to inform you.
Ms. Caproni. It was ``her,'' but that is correct.
Mr. Nadler. Okay. And let me ask one other thing. The IG
criticizes the corrective action taken by the FBI prior to
early 2007, calling it seriously deficient. For example, it
states that 3 years after the practice began, your office
directed that exigent letters be revised, but nonetheless
approved their continued use until March 2007. Why did this
happen? Why did you allow it to continue, although albeit under
revised? And why didn't you act earlier and more effectively?
Ms. Caproni. Again, this was not me personally, but I think
that the rationale was that the attorney who provided the
advice, and the report truncated the advice that she actually
provided; there was more context to it in the advice that was
provided. What she was telling them was you can only do this if
you have got a true emergency.
That is, while she was not thinking about 2702, her advice
was actually consistent with 2702 statute. Because she wasn't
really focusing on that, she was allowing them to use the short
form exigent letter that was then supposed to be followed with
legal process.
This is actually a much more complicated issue than, I
think, some would like to recognize. And part of the problem is
that some carriers would actually prefer to have belts and
suspenders, so even if it is an emergency, so even if they are
legally authorized to give us the records based only on the
emergency with no legal process, they actually would like law
enforcement to provide legal process when the emergency
subsides and there is time to do so.
So from the provider's perspective, there is pressure to
give follow-on legal process. As we have consistently advised
our employees, and this is certainly a big issue for the
inspector general, the statute does not seem to anticipate
that. You look at 2702 standing alone; 2702 provides the
providers with legal immunity if they provide records in the
case of a good faith belief that an emergency exists.
Mr. Nadler. Which they seem to have used all over the place
without any subsequent provision of process or anything else.
Mr. Fine, could you comment on what Ms. Caproni just said
on her answer to this question?
Mr. Fine. I believe that the Office of General Counsel did
not do all they could have and should have in this practice.
There were people in the office who knew about it. They didn't
review the exigent letters at the time they first knew about it
and did not give full and accurate legal advice. And they did
not put a stop to this practice and did not ensure that people
knew about the parameters of how they could use this letter.
And we do criticize the people in her office who were not
adequately and accurately providing legal advice on this by
reviewing the exigent letters and putting a stop to them. They
were trying to reform it, but they weren't ending it, and that
was a problem.
Mr. Nadler. Thank you.
The gentlelady from California is recognized.
Ms. Chu. Thank you, Mr. Chair.
I have questions about the culture at the FBI that led to
the use of these exigent letters. When the OIG report said that
when it asked the FBI supervisors why they used them, no one
could satisfactorily--well, ``Nobody could satisfactorily
explain their actions. Instead, they gave a variety of
unpersuasive excuses contending either that they thought
someone else had reviewed or approved the letters, that they
had inherited the practice, or were not in a position to change
it, or that it was not their responsibility to follow up with
appropriate legal process.''
So what I want to know is how you are changing that
culture. What procedures does the FBI have in place currently
to ensure its employees understand and adhere to the law when
conducting investigation?
Ms. Caproni. We have spent a tremendous amount of time
looking at that issue and trying to figure out what are the
appropriate training regimes to make sure that across the board
on these high-risk type of areas that our employees have been
adequately trained.
ECPA is a particular issue that comes up in legal training
regularly, and it will continue to be regularly trained on
either a 1-year or 2-year cycle. We haven't quite decided that
yet. But we spend a lot of time trying to figure out and in
fact focusing on adequate training for our employees, and then
not just training, but then auditing on the back end to make
sure that the training has taken and that in fact our employees
have understood the message that has been delivered, and then
it is reinforced on a regular basis.
It is incredibly important to us that our employees comply.
We were extremely disappointed when they discovered this and
when we discover similar sorts of issues where we have got a
clear disconnect between what the rules and laws are that
govern our actions and what employees were doing.
Ms. Chu. Well, you said that you are training them, and
then you then want to make sure that they actually ingested
that information, but how do you check up on that?
Ms. Caproni. The Inspection Division is focusing, for
example, on national security letters. The Inspection Division,
which is our sort of internal audit division within the bureau,
has audited the use of national security letters several times
in addition to the audits that the inspector general has done.
The National Security Division looks at national security
letters when they go out and do periodic what are called
national security reviews. So they are looking in the files.
They are looking at the letters.
We also instituted systems to make sure to correct what we
view as fairly common errors, that it is all automated now so
that the employee can't make the error. We ensure that
documents are routed through attorneys and things like that. So
we are looking systematically at issues like this to try to
figure out where can we build into the system checks and
balances, attorney review where appropriate, so that we can
ensure before the action is taken that in fact it is being
taken in accordance with all laws, regulations and policies.
Ms. Chu. What process is in place, then, for companies like
the phone companies in this case to complain or confirm the use
of certain investigative techniques. In other words what could
these companies have done to alert you or the IG about
potential abuse on behalf of FBI employees?
Ms. Caproni. Well, the issues with the phone companies was,
I believe, and I think the inspector general would agree with
this, the problem was that when their employees were relocated
into our workspace was both parties, their systems and our
systems of internal controls broke down.
So the phone company employees viewed themselves as part of
the team, and they were fighting the fight to keep America
safe. Our employees lost that professional distance that they
needed between themselves and the telephone companies. So I
don't think this is a matter of the phone companies feeling
they should complain and not have anybody to complain to. I
think they saw the same thing we did--was that putting our
employees together, while it had huge benefits in terms of
speed, had an extreme downside, which was that it broke down
both our sets of internal control.
Ms. Chu. In previous testimony you said that the FBI did
not accurately report to Congress on the use of exigent
letters. How can Congress and the IG provide better oversight
to ensure this doesn't happen again?
Ms. Caproni. Well, certainly on reporting I think the
systems that we now have in place to tally national security
letters, which is an automated system which automatically snags
the statistics that we need in order to report the numbers that
we are required to report to Congress, has vastly improved our
reporting. I can't say that it is 100 percent accurate, but I
can say it is a thousand times better than it was when we were
using antiquated spreadsheets to try to tabulate national
security letters.
Ms. Chu. Thank you very much.
Mr. Nadler. Thank you.
I will now recognize the gentleman from Tennessee.
Mr. Cohen. Thank you, Mr. Chairman. I appreciate your
holding the hearing. This is an issue that is of great
importance to the American people, for the Constitution and due
process are involved, and sometimes they kind of get looked
over.
Let me ask Mr. Fine. You have, as I understand it, made
some recommendations to the FBI, and they have responded, but
they haven't taken any action, as I understand it. Is that
accurate? Or can you tell us what actions they have taken and
how long do you think it should take them in an expedient
fashion?
Mr. Fine. Congressman, they have responded, and they have
taken some actions, and they have described how they are going
to take additional actions. So I do believe they are taking our
recommendations seriously. They have not implemented all of our
recommendations yet. There are still some policies that they
need to put in place.
And in addition, it is not a one-time thing. They need to
provide training and guidance, but it is not once won and done.
It has to keep going and be part of the culture, part of the
regular course of business, and continuous. And so I think that
is the important thing here, not simply to say we concur and we
have done it once, but to go on and on and make sure that they
are monitoring this, they are ensuring that it is complied
with, and that while policies are good, they not self-executed.
Mr. Cohen. And I may be incorrect, but I believe your
testimony indicated that much of this activity occurred during
the 2003 to 2006 period. Is that accurate?
Mr. Fine. Yes.
Mr. Cohen. Is there any indication that this pre-existed
2003?
Mr. Fine. Well, we looked at a particular unit, the
Communications Analysis Unit, where the bulk of this activity
occurred, and that unit was created in late 2002 or early 2003.
So that is when this problem really became widespread, and that
is where we focused our attention on.
Mr. Cohen. And you don't think there are other problems? Do
you have any reason to believe there are other problems where
the bureau is not abiding by its constitutional duties and
requirements?
Mr. Fine. You know, can I rule that out? No. Do we have
indications of it? We would have opened an investigation on
that. We don't have particular examples, but I do think that
this had implications all throughout the bureau. That is,
without putting in systems to ensure that they are complying
with the law in this area, you know, it is not as if it is
solely one situation. And I think that is why our message has
to be broader than fix this one problem and you are okay.
You have to fix it in terms of a process and a culture and
oversight mechanism, which I think they have said they have
recognized that. They have called this a wake-up call. We will
be there to monitor that.
Mr. Cohen. Do you believe the FBI director at the time was
aware of these activities?
Mr. Fine. No. We didn't have indications that he was until
our investigation surfaced it.
Mr. Cohen. And then when it did surface, did he take
adequate action?
Mr. Fine. Yes, I think he did. He took responsibility for
it. He recognized he was at fault as well and that he needed to
ensure that this didn't happen again and that there were
processes in place for them to find and not wait for us to find
them.
Mr. Cohen. Thank you, sir.
Ms. Caproni, you mentioned that the fact is the report
concludes the FBI and the Department of Justice must take
additional action to ensure FBI personnel comply with the
statutes, guidelines, regulations and policies governing the
FBI authority, et cetera. Do you have any--do you have an
opinion upon when we might get compliance or affirmation from
the DOJ and the FBI that they are going to change their
policies?
Ms. Caproni. Congressman, we have changed a massive number
of policies that relate to ECPA and how we get telephone
records since 2007. And we have briefed this Committee's staff,
and we are happy to come back up and do a full briefing on
that.
There are substantial numbers of changes in policies, and
probably more importantly, what we did was change systems. And
so, for instance, for national security letters, which is where
this all began, we now have an automated system, which routes
them.
First off, it fills in all the boilerplates so that we take
account of the mildly different language that is required,
depending on what statute you are proceeding under. It routes
it automatically so that it cannot proceed, it cannot go unless
it has been approved by everybody that is required to approve
it, including an attorney. That system automatically populates
the letter. It automatically uploads it into the system. It
automatically snags the statistics that we need for
congressional reporting.
For emergency requests, not for exigent letters, but true
emergency requests, we are designing a very similar system,
which will pre-populate letters to the phone companies with the
required statutory language so that all the agent needs to do
is to actually fill in what is the emergency.
So I would say we have taken a long look at lots of
different policies and also at procedures so that our agents
aren't making what I would call errors or careless errors, not
intentional wrongdoing, not trying to violate people's rights,
but just in a rush with their business, not dotting ``I''s and
crossing ``T''s that we would like them to do.
So we are trying to use technology to make that easier for
them so that they can focus their attention on mission-related
work rather than on, you know, making sure that they have
cited, you know, C4 instead of C5 in order to do what they want
to do.
But we are again happy to come up and brief on all of the
changes to policies that we have made in the last 3 years in
response to the IG's first report, if the Committee would like.
Mr. Cohen. Thank you very much. I appreciate each of your
testimonies and particularly appreciate the Chairman for
bringing this important subject to the attention of the
Subcommittee and the country.
Thank you.
Mr. Nadler. I thank the gentleman.
I think that concludes. Without objection, all Members will
have 5 legislative days to submit to the Chair additional
written questions for the witnesses, which we will forward and
ask the witnesses to respond to as promptly as they can so that
their answers may be made part of the record.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record,
and we thank the witnesses and the Members. And with that, the
hearing is adjourned.
[Whereupon, at 11:18 a.m., the Subcommittee was adjourned.]
