Make the FBI follow the law

WHEN CONGRESS authorized the Federal Bureau of Investigation to secretly get the banking, telephone, and e-mail records of individuals who are not terrorists themselves but just connected to a terrorism investigation, it gave the bureau a potent weapon. Now an audit by the Justice Department's own inspector general has found that the FBI has frequently been using the information requests, called national security letters, without meeting the requirements of the law. Moreover, the audit also showed that the bureau has not been keeping track of how many such data hunts it has gone on. Congress should demand regular reports from Attorney General Alberto Gonzales on the steps he takes to keep FBI actions within the law.

National security letters are like instant subpoenas obtained without the bother of a judicial warrant. Even before passage of the Patriot Act in 2001, the FBI could issue them to get data on persons it had "specific and articulable" reasons to believe were terrorists or foreign intelligence agents. The Patriot Act permitted the letters to be used far more broadly for any records "sought for" or "relevant to" a terrorism or espionage investigation. According to the inspector general's audit, in 2005 alone the FBI issued 19,000 such letters, which included 47,000 different requests for information. In 2000, before 9/11 and the Patriot Act, the bureau issued just 8,500.

The problem, according to Inspector General Glenn Fine, is that in a sample of 293 such letters, the audit found that agents often did not refer to authorized investigations or lacked adequate documentation to justify the letters. In 22 such cases, agents potentially violated FBI or Justice Department regulations or the law, according to Fine, who said he did not think the errors were deliberate. The audit of four FBI field offices also discovered that those offices had underreported the number of national security letters by 20 percent.

The audit, which Congress had insisted on, has prompted bipartisan criticism of the way the FBI has handled the letters. Senator Charles Grassley of Iowa, Republican, said, "When it comes to national security, sloppiness should be reserved for the hog lot, not the FBI." Senator Patrick Leahy of Vermont, Democratic chairman of the Senate Judiciary Committee, said his panel would hold extensive hearings on Fine's audit.

The audit demonstrates that it is all too easy for the bureau, in an atmosphere of intense concern about the danger of terrorism, to cut corners in its use of this investigative tool. Congress will have to apply enough pressure to make sure the bureau follows the law, since the leadership of both the FBI and the Justice Department have shown little ability to do so.