TRANSCRIPT OF FBI PRESS CONFERENCE ON DOJ INSPECTOR
GENERAL'S REPORT ON THE USE OF NATIONAL SECURITY LETTERS

03/09/07

Speaker: FBI Director Robert S. Mueller

MUELLER: Good morning, everyone. And I want to welcome you and thank you for being here, particularly on such short notice.

As you know, the inspector general has released a report this morning regarding the FBI's use of national security letters. And I want to say at the outset: That is an excellent report. It is one I take exceptionally seriously, and I appreciate the work of the inspector general in conducting this review.

Let me also say that we—and I speak for the FBI as an institution—accept the report's findings and its recommendations and have already taken steps to address many of these recommendations.

Some of these steps and many of these steps are outlined on the chart to my right.

By way of background, the inspector general was directed by Congress in the Patriot reauthorization act to examine the FBI's use of national security letters, to look at their effectiveness, and to report on any improper or illegal uses.

As a reminder, national security letters enable us, the FBI, to obtain certain types of transactional information—not content of conversations, but items such as telephone toll records, subscriber information and the like.

I'll say that these pieces of information are absolutely essential and they're critical building blocks in our counterterrrorism and counterintelligence investigations.

I'll tell you, I'm particularly concerned about the findings in the report that indicate that we did not have appropriate policies in place and, in other areas where we did have appropriate policies, we did not adhere to them in using this important tool.

I'll note that the inspector general indicated that his review did not reveal intentional violations of national security letter authorities, A.G. guidelines, or internal FBI policy.

Rather, as he put it, he found confusion about the authorities available under the various NSL statutes. As well, the I.G. found that, in almost every instance—in most instances—we sought and obtained information to which we were entitled.

Nevertheless, the report identifies serious deficiencies in our tracking and internal controls with regard to the use of this tool.

And before I address these deficiencies, I wanted to look at another subject addressed by the inspector general in his report.

The report rightfully discusses the effectiveness as NSL as a proven and a useful tool in protecting the American public from acts of terrorism.

The report concurs with our determination that national security letters have contributed significantly to our counterterrorism and intelligence missions.

As the report says, FBI agents believe that national security letters are a critical tool and are the bread and butter of our investigations. And the report cites several examples where national security letters have advanced particular investigations, and I recommend that you look at that portion of his report.

I also deeply appreciate the inspector general's putting in context his findings with regard to the use of this tool by describing the demanding environment in which the FBI, particularly the Counterterrorism Division, was operating over the last five years.

Now, with that said, let me turn to the deficiencies that were pointed out by the inspector general.

First of all, inaccurate reporting. As you undoubtedly know, we are required to report to Congress twice a year on the numbers of NSLs issued. And the numbers that we have provided in recent years have been inaccurate. The I.G. attributes this to several factors: first, deficiencies in the database we use for internal tracking of NSLs; secondly, the failure to retain signed copies of national security letters where they can be easily counted for purposes of the report to Congress.

We've already taken steps to correct these deficiencies. Early last year, we began to develop a Web-based system that will ensure that when an NSL is issued, it will be accurately recorded. And we are now requiring all offices to maintain signed copies of NSLs.

We also are doing a retrospective to determine what NSLs had been or did not make it into the system so we can correct those figures.

The second area of deficiencies—substantial area of deficiencies with regard to what is called IOBs, intelligence oversight board violations.

By executive order, the president's intelligence oversight board is to be notified if there are activities that may be contrary to national security authorities. These are known as potential IOB violations.

An example would be where an agent is seeking information on a particular telephone number, transposes the numbers in that telephone number in a request to a communications provider, and obtains the wrong records.

Our policy is when that happens, we sequester those records and destroy them. We also identify that as a possible violation and investigate why that occurred.

The inspector general in his review of four offices found that we had identified—we, the FBI had identified—26 such violations, and in all but one case, agreed with how we had handled them.

But he also found another 22 violations—potential violations—that we had not found. And while he said that none of these involved intentional or deliberate misuse of authorities, I will tell you that my concern is that we did not pick up those mistakes ourselves.

So we've taken a number of steps to address this. We've improved our internal guidance, focusing on reporting unauthorized collections. We have and are continuing to develop trainings that will be mandatory for all of our special agents in charge, our attorneys in the field and our national security agents.

And, going forward, we will be conducting reviews with the Department of Justice of our offices of these potential IOB violations.

The third area addressed by the inspector general relates to what is called exigent letters.

By statute, communications carriers can provide us information in emergency situations. And they're entitled to trust our representation that it is indeed an emergency situation.

After September the 11th, the practice grew up whereby we would provide to these carriers a letter, saying that indeed we needed particular information because of the exigent nature of the investigation, and that a grand jury subpoena would follow. In a substantial number of these cases, the inspector general found that there were not necessarily exigent circumstances and that grand jury subpoenas had not followed.

And while we were entitled to that information, we were using the wrong vehicle to obtain that information.

I should make it clear that communications carriers were absolutely entitled to rely on our representation in providing those materials.

Here are the steps we're taken to rectify that situation.

As of May of last year, we stopped the use of these letters. We will seek emergency disclosure of records in the future only when the circumstances comport with the statute. I also awarded a special inspection to determine how this occurred, and the attorney general is looking at that, as well as at how we provide legal advice in situations such as this.

Those are the three most substantial areas of concern pointed out by the inspector general.

But the question should and must be asked, how could this happen? Who is accountable?
And the answer to that is, I am to be held accountable.

To be more specific, when we received the additional capabilities in the Patriot Act, in addition to establishing procedures for reporting the number of NSLs to Congress, I should have set up an audit system to assure the accuracy of those figures, and did not.

Secondly, as the inspector general points out, there was confusion and uncertainty in the field as to the use of these authorities. I should have provided the appropriate training, education and internal oversight so that all out there, all in the field understood the use of these authorities, and I did not.

And lastly, I should have introduced internal controls and additional levels of review to assure that incidents such as the use of the exigent letters immediately came to light and were remedied, and I did not.

As I previously noted, each of these deficiencies is being addressed. But let me finish with two thoughts.

First, national security letters are absolutely essential—absolutely essential for us to do our job in protecting the American public against terrorist attacks.

But it is equally important that as we exercise these authorities we do it consistent with the privacy protections and civil liberties that we in the FBI are sworn to uphold.

I am the person responsible, I am the person accountable, and I am committed to ensuring that we correct these deficiencies and live up to these responsibilities.

And one last thought: I would say that this is an example of appropriate and effective congressional oversight. Congress required that this report be done, and the I.G. has completed a thorough and a fair review and identified issues of serious concern that have to be rectified. And the inspector general will come back and review our progress periodically.

So this process, as it should be, is a way to assure appropriate oversight in how we use this critical tool for protecting the American public.

Thank you. And I'd be happy to answer what questions you do have.

QUESTION: Director Mueller, you've talked, I know, to some members of Congress initially about this. How concerned are you that Congress might act to restrict the FBI's ability to use these letters, and what will happen if it did?

MUELLER: Well, I expect that Congress will review the report thoroughly, look at the deficiencies that were pointed out, evaluate what steps we are taking to address them, and look to future inspector general reports on how we are measuring up.

As I've stated, national security letters are absolutely essential in terms of providing us with the information, the building blocks we need to conduct our investigations.

And there has to be a balance between the authorities that are given us in order to protect the American public and the protection of privacy and our civil liberties. I think the balance is appropriate.

And I would also work with Congress to assure that concerns that Congress has as to the use of this particular tool are laid to rest.

QUESTION: Can I just follow that up?

You could argue, I suppose, that setting the clerical errors aside, the number of abuses—potential abuses—is quite small out of something like 150,000 of these over the last few years. Viewed in that light, it's just a small problem.

MUELLER: Well, again, comparatively I would say that the sampling that was done by the inspector general was relatively small. The number of abuses is exceptionally small, given the numbers out there.

But nonetheless, it is a serious problem because we should have in place the procedures to assure that where there are mistakes made, where a person's telephone toll records are obtained by us without appropriate process or where mistakes have been made, it is absolutely essential that we identify that and that we sequester those records and destroy them.

We have that responsibility as well as the responsibility to conduct our investigations. So it is serious.

QUESTION: Director Mueller, you said the proper oversights were not put in place, and you took responsibility for that. Why weren't they in place?

MUELLER: Because I did not early on recognize that beyond just putting into place a database to record, for instance, the number of NSLs, I could not rely solely on persons following the procedures which we have in the bureau which requires a notification of any NSL to go to the Office of General Counsel so it can be recorded in that database and reflected to Congress.

It's very important to have an audit procedure to make sure that that is happening; not just put the procedure in place, but have some sort of mechanism to assure that the procedures are being followed. I did not put that into place at the outset.

QUESTION: Director Mueller, you know that the report claims that there were no intentional discrepancies made and no criminal actions taken. In your view—it does note a couple of times that FBI agents inaccurately misrepresented that subpoenas had been issued (inaudible).

In your view, will any of your agents or personnel face subpoenas or (inaudible) criminal sanctions or (inaudible)?

MUELLER: Well, the inspector general found no criminal violations. But, as I indicated, we are—inspections is doing a review to determine whether or not there should be any administration actions taken.

QUESTION: (OFF-MIKE)

MUELLER: Yes, I do not believe so, at this point.

And the inspector general did not point any instances where the—and let me just refer you to page 124 of the report where, at the end of the paragraph there, the inspector general says, We also did not find any indication that the FBI's misuse of NSL authorities constituted criminal misconduct.

QUESTION: No, but it said that some of the discrepancies were illegal. So if the law's been broken, I wonder if anybody could be indicted or face...

MUELLER: Well, I would refer you to the language of the inspector general in that regard.

QUESTION: I'm sorry. Director Mueller, I didn't hear you. You said that the inspection review was going to be done and was going to look at what, sir?

MUELLER: It's going to be—the inspection is reviewing our practice of issuing those exigent letters.

QUESTION: And so would that then result in disciplinary action?

MUELLER: It might, depending on the findings.

QUESTION: Clearly some mistakes were made. Is there any evidence that individuals or businesses were damaged as a result of these mistakes?

MUELLER: No, as—also, as pointed out in the inspector general's report, in almost all the cases, the information that we were seeking, we were appropriately seeking.

We had used the wrong vehicle, or as the I.G. has put it, In most cases, the FBI was seeking to obtain information that it could have obtained properly if it had followed applicable statutes, guidelines and internal policies.

QUESTION: So you can reassure Americans that no one was damaged by this?

MUELLER: I can reassure Americans that is absolutely the case.

QUESTION: I have a follow-up question...

MUELLER: I will tell you, though—let me just be absolutely clear. There are two instances in which I believe the I.G. points out that we received credit reports and counterterrorism—counterintelligence investigations where under the appropriate guidelines for counterintelligence investigations we were not entitled to receive those reports.

So that is one incident in which—one area in which we had obtained information that we should not have.

QUESTION: There's really quite a phenomenal jump in the issuance of these national security letters. I'm wondering whether that's really a reflection of an astronomical jump in the number of investigations or as, I guess, critics would see, that there are more fishing expeditions (inaudible).

MUELLER: I would dispute the critics who would say there are fishing expeditions.

Ninety percent of the national security letters that we've issued have been for telephone subscriber records, for instance, and toll records.

If you go back to what happened before September 11th, say, as happened to be the case, there's a number in Yemen that is associated with terrorists. It's very important to know if that number has been in contact with any numbers in the United States.

You may find out that that number's been in contact with numbers in the United States. It's absolutely essential to know what those numbers were, who were the people assigned to or utilizing those numbers, so that you can determine what, if any, association there is in the United States with that particular number, say, in Yemen.

If you take Al-Midhar and Al-Hamzi, two individuals who were in San Diego before September 11th, had we been alerted to them beforehand and identified their telephone numbers, we would want to know who they had contacted.

That could be 10, 15, 20 numbers that they had contact, once you get their tolls. Absolutely essential that we follow up on every one of those numbers.

Had we done that, had we been able to, maybe we would have identified the other hijackers.

And so, when you're looking for cells, when you're looking for persons who are associated with terrorists or those who would support terrorists, it's absolutely essential to have the use of these national security letters to obtain the toll information so we can paint the picture of these cells.

And so, why you see an increase in the use of these numbers is our belief that we have to undertake this kind of investigative activity to secure the safety of the American public.

QUESTION: Director Mueller, have the NSLs or exigent letters assisted in disrupting...

MUELLER: Yes. Absolutely.

QUESTION: (OFF-MIKE) how many, for the record, how many?

MUELLER: I can't—there's not a day—there rarely is a day go by when we make an arrest in a terrorist case where the national security letter tool has not been used.

Recently, there have been arrests—arrests a couple days ago in Phoenix, if I'm not mistake, of a United States sailor. Well, that's a type of investigation that would have utilized NSLs.

In any of the Lackawanna, Seattle, Portland—a number of these cases—the national security letter mechanism has been absolutely essential to defining the persons who were involved in those conspiracies.

QUESTION: Director, besides the large increase in the aggregate in the number of NSLs, there's a growing number of them that relate to U.S. persons as opposed to non-U.S. persons...

(CROSSTALK)

QUESTION: ... increase the I.G. cited was something like 39 percent to 53 percent.

MUELLER: Yes.

QUESTION: Can you help us understand why the increased focus on U.S...

MUELLER: Sure. We are looking at ties to terrorism overseas. The attacks on September 11th—the attack was formulated, the preparations were made, the funding was done overseas and the attack was in the United States. In order to prevent attacks in the future, we absolutely have to track terrorists overseas to see what ties they have in the United States.

An example might be in the arrests that were made in the summer of last year; the individuals in London who planned to take explosives on planes and blow them up.

Say, for example—and I'm not talking specifically—but we came across a telephone book of one of those individuals and there are United States numbers in there, we would immediately get national security letters to follow up on those numbers that were in one of those terrorists' books.

If we find in a cave in Afghanistan or someplace else information relating to telephone numbers, e-mail addresses and the like that come back to the United States, we'll immediately follow up and determine what, if any, association that number in the United States has with that terrorist activity overseas. And our growth—our growth in terms of our ability to—in advance—identify person who are associated with terrorists is benefited substantially by our ability, through national security letters, to get this information.

I will, again, remind you that the information is not content, it is not the content of the calls themselves, but identifying the persons who are in contact with these terrorists, often overseas.

QUESTION: Just a quick follow-up. (inaudible) estimate in terms of what percent of the investigations involve U.S. citizens (inaudible) persons?

MUELLER: No, I couldn't give you an estimate on that.

QUESTION: Earlier today, Senators Specter and Leahy held a conference and they said that yesterday, when they were talking to you, that they had sensed that you were surprised by the findings and that you were very angry.

This has been a concern that has long been out there. I know that Leahy has voiced this for years. I'm wondering why didn't you act then, why didn't you do the audits then, why did it take this long to find out about these problems.

MUELLER: Well, the inspector general went in and did the audit that I should have put in place many years ago. As I said before, I should have put that same sort of audit procedure in place previously.

And, yes, I was somewhat surprised by the findings of the inspector general. As I've said in many of these areas, as soon as we have identified those areas, we've moved to fix them. May of last year—we did not wait for this report; in May of last year we discontinued the use of the exigent letters.

So as we've identified these problems, we have addressed them.

But we are conducting a review with the Department of Justice of our use of NSLs as a follow-up to what the inspector general has brought to our attention. And my expectation as a result of that review we'll put into place probably additional safeguards to assure that we're not surprised again.

QUESTION: Well, I guess my question is, why didn't you do that when you should have done that?

MUELLER: Did not understand the necessity of putting them in place at that time.

We had policies, directions that you will, for instance, send communications back to the Office of General Counsel whenever you do an NSL. We had assumed—I had assumed that that was being done. I did not recognize in a number of instances that this was not being done. That's an example.

And I should have anticipated that not only do you give directions for persons to do it, but you put into place a mechanism to assure that it is being done.

QUESTION: You've talked a lot about taking responsibility here. Did it cross your mind to resign? Or did you offer to resign?

MUELLER: No discussion of that, no.

QUESTION: Director Mueller, what do you think happened in the field? Do you think—some of these Patriot Act powers have been hard-won from a reluctant Congress. Do you think the field didn't understand—there was sort of a nonchalant attitude about using these authorities, or is it more just the pressure that they're under in the haste of investigating?

MUELLER: Well, I can assure you it's not an nonchalant attitude at all with regard to these authorities. Everybody in the bureau takes them exceptionally seriously. We understand the impact that the use of these vehicles have on a person's privacy rights, civil liberties and the like.

There are a number of explanations. Often in the field we do not have the support personnel to accomplish this. There are persons that were not sufficiently educated as the necessity of doing this or the mechanism for doing it. And we are in the process of rectifying that.

The database that we currently have is somewhat limited. One of the issues pointed out by the inspector general is that in that database we had default entries, which when you put in particular information, the default was not to record NSLs, which was the wrong thing to do. And so a number of national security letters were automatically eliminated by the way the software was set up.

So there are a number of contributing factors to why we underreported these NSLs to Congress. And, as I said, beginning in May of last year we set to develop a different computer program for that, and it is going to be piloted this summer in Washington field office -- a program whereby you will not get a national security letter authorized unless it goes into the databank and we have all the information that is to accurately report what needs to be reported to Congress.

Yes?

QUESTION: Is it the case that the statutes regarding those national security letters in the Patriot Act are not as clear as they could be?

There will be much talk about a legislative fix being needed here. Is there any kind of legislative fix at all that you believe could be helpful? Or does the training that you refer to to that be sufficient?

MUELLER: Well, you'll see that—yes. Short answer, yes. Administrative subpoenas would be helpful—administrative subpoenas that we have the authority to use in narcotics cases, child pornography cases, a number of cases would benefit because it is one process, one procedure.

As you will see, in reading the inspector general's report, the authority for issuance of national security letters appears in no less than four and probably more statutes. And so in order to obtain a national security letter for telephone tolls, you have to go to one statute; in order to find authority for credit reports, you go to another statute. It would be beneficial to have it in one statute. And so it would simplify it not just for Congress, but also for us.

QUESTION: Director, you talked about how critically important these letters are to the mission of the FBI. And we also know that the FBI's allowed to do this without seeking a court order for the information. Is part of your frustration that this is about trust; that Congress gives you this authority to go out and do this, (inaudible) in dealing with these issues?

MUELLER: Well, I think Congress and the American people should have a lot of trust in the FBI. Occasionally, there are areas where we need to admit mistakes that we've made -- this is one of them; areas where we should've done a better job—this is one of them. And I think Congress and ourselves should both trust but also verify.

And I will tell you, in this case, it's why I make the point, this is an appropriate oversight.

The inspector general has come in and pointed out things that perhaps we should have picked up before. But that's the purpose of the inspector general and that's the purpose of congressional oversight.

STAFF: Thank you very much.