hearing of the subcommittee on the constitution civil rights and civil liberties will come to order to begin by recognizing myself for an opening statement today's hearing examines the latest report by the inspector general the justice department on the use of exit letters and other informal requests for telephone records by the federal bureau of investigation this report follows two earlier reports by the id's office in march two thousand and seven and march two thousand eight on the use of national security letters which did not look at the use of exit letters and that this latest report does just that the finding these are disturbing they detail hundreds of instances in which the i violated the law and its own internal rules concerning the collection of telephone records inspector general identified violations of the electronic communications privacy act otherwise known as extra as well as of the usa patriot  two thousand and five even more disturbing this is not the first time we have had to have the inspector general and the f b i 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 led exit 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 there's not reassuring to have the i g come here yet again to tell us that those responsible for enforcing the law 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 set of the fourth amendment has been found not to reach a 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 to examine the i g findings and how the f b i 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 have date the act and whether we must amend the act perhaps with criminal sanctions to avoid the government officials acting in total contempt of the law and there's a legitimate privacy rights of law abiding  but that is a matter for another day but today i want to welcome our witnesses and i look forward to your testimony back to bounce of my time the chairman that recognized the distinguished ranking member for five minutes for an opening statement thank you very much mr chairman series of reports issued by the department of justice office of the inspector general most recently this january indicate that between two thousand and two and two thousand and six consumer records held by telephone companies and been provided to the f b i through the use of exigent letters or other informal methods that fell outside the national security letter process embodied in statute an internal f b i process the purpose of this hearing is to examine the january two thousand  report which focuses on the existence and use of 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 to business records and not the content of any telephone communications the practice of using exigent letters was stopped approximately three and a half years ago while the inspector general faulted the f b i and specific members of the f b i management and supervisory ranks for poor managerial and supervisory oversight there was no finding of criminal intent and all the use of these letters did circumvent the law found no intentional criminal activity on the part of any f b i employee as a matter of routine the findings of this inspector general investigation were presented to a criminal division for a prosecutive opinion the d o j declined prosecution now that the inspector general report has been issued the f b i 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 example exigent letters and other formal requests for use to obtain records in connection with the investigation of a terrorist plot to detonate explosives second the i g noted that statements may have been not material to a in the use of letters issued clear guidance on the proper use of and asked cells and the electronic communication communications privacy act emergency voluntary disclosure statute and conducting an audit of n s l s issued by fielden headquarters divisions from two thousand and three to two thousand and six the f b i also directed his personnel be trained and n a s l authorities agreed to move the communications services employees off the records to retain and which to purge was reasonable and that the review process and other corrective measures issues since the issuance of the inspector general's first n f l report in march two thousand and seven they have been reasonable i finally the expense specter general made it clear that it recognized that the f b i was confronting major organizational and operational challenges during the period covered by our review following the september eleventh attacks the i overhauled its counterterrorism operations expanded its intelligence capabilities and began to upgrade its information technology system throughout the four year period covered by this review of 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 to the communications analysis unit members of the f b i senior leadership told us they placed great demands on the communications analysis unit and other headquarters units the f b i director stated that he pla tremendous pressure on personnel to respond to terrorism threats other senior f b i officials stated that there were countless days when headquarters personnel work through the nights and on weekends to determine whether information the f b i 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 f b i used to evaluate some of the most serious terrorist plots towards the united states in the last few years in our view the circumstances provide important context for the inspector general's report i look forward to hearing from our witnesses today i thank the  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 generals in the practice and i think what we have here is something that needs further from the patriot act the provision that the inspector general report that the inspector general's office shell review information and complaint and submit to the committee on the judiciary the very nature of the matters that we have before us patriot act it never has been and it's use perhaps coincidentally began in the same month that miss valerie it took three 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 gone for for three consecutive years and so i 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 f b i 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're talking about it's accident it's 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've already secured the remit of cooperation from its chairman i have not had the opportunity to discuss this with mr sensenbrenner or or mr steve king two or anybody else on the committee and i intend to do submit opening statements for inclusion in the record without objection the chair will be authorized to declare recess of the hearing will now turn to our witnesses as we ask questions of our witnesses the chair will recognize members in the order of this in your in the subcommittee and alternating between majority minority provided a majority that the members present in his or her turn arrives members who are not present when it 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's unavoidably late are 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 just sent december fifteenth two thousand mystified work to the department justice office of inspector general since can probably 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 service chief a special prosecutors in chief of the organized crime racketeering section before becoming chief of the criminal division in  hundred eighty became the regional director of this pacific regional office of the securities and exchange commission she served there until two thousand and one when she joined the firm assistant that are in bartlett where she worked until the appointment as general counsel by the director muller she graduated minutes or less to be say within that time this is timing like the table when one minute remains the light will switch from green to yellow and then red with the five minutes are up before we begin it's customary for the committee to swear in its witnesses if you please stand and raise your right hands to take the oath do you swear or affirm under penalty of perjury that the testimony about to give us true and correct to the best of your knowledge information and belief thank you let the record reflect the witnesses answered in the affirmative you may be seated  g our first witness so my recognize for an opening statement of the inspector general fine mr chairman ranking member sensenbrenner members of the committee could you use your mike a little closer thank you thank you for inviting me to testify about the oh i g's recent report examining the f b i s use of accident letters and other informal requests to obtain telephone records the o i g completed two previous reports in two thousand and seven two thousand and eight which described the f misuse of national security letters and which also noted the f b i s practice of issuing existent letters in our most recent report that was issued in january two thousand and ten 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 f b i obtained telephone records and my testimony today i will briefly summarize the findings of our reports are our recommendations and the f b i s response to them our report found that from march two thousand and three to november two thousand and six f b i personnel in the communications analysis unit c a u issued at least seven hundred  twenty two existent letters from more than two thousand telephone records to the three telecommunications service providers located at the f b i 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 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 as national security letters other legal process or even existent letters f b i personnel frequently sought and received telephone records based on informal requests they made to the on s telecommunication employees by e mail by telephone face to face and even on post it notes f b i personnel made these kinds of informal requests for records associated with at least thirty five hundred telephone numbers although we could not determine the full scope of this practice because of the f b i s inadequate record keeping the f b i also received information about telephone records through so called sneak peeks whereby the company employees would check their records and give the f b i a preview of the available information for phone numbers orsen a synopsis of the records without any legal process or documentation of the request or investigation identified other troubling practices related to f b i requests for telephone records such as community of interest requests requests on hot numbers without any legal process and misuse of administrative subpoenas a report also details three f b i media leak investigations in which the f b i 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 a report concluded that the existence letters and other informal requests for telephone records represented a significant breakdown in the f b i s responsibility to comply with the law attorney general guidelines and f b i policy the report also analyzed the attempts made by the f b i from two thousand and three through march two thousand and seven when we issued our first n f l report to address these practices we concluded that during this time period the f b i s corrective actions were seriously deficient ill conceived and poorly executed for example the f b i issued legally deficient blanket national security letters in attempt to cover validate prior telephone record requests by contrast we concluded that after our first report was issued in two thousand and seven the f b i took appropriate and reasonable steps to address the problems that is deficient practices had created and we believe the f b i should be credited for these actions for example the f b i ended the use of accident 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 f b i moved the three tell service providers out of the f b i offices the f b i also spent it significant efforts to determine whether improperly obtain records should be kept which should be purged from the f b i databases i report also assesses the accountability of f b i employees for these practices we concluded that every level of the f b i from the most senior f b i employees to this f office of general counsel to managers in the counterterrorism division to supervisors in the cia you to the cia you agents and analysts who repeatedly signed the letters were responsible in some part for these failures finally our report made additional recommendations to the f b i and the department to ensure that f b i personnel comply with the law and f b i policy when i'm taking telephone records we recently received the f b i s responses to these additional recommendations and we believe that the f b i is taking them seriously in some the national security letters and other authorities that are the subject of our report are important investigative tools for the f b i to carry out its counterterrorism mission however it is essential that they be used in full compliance with the political statutes attorney general guidelines and f b i policies the f b i needs to be vigilant in ensuring that it does so and the oh i will continue to monitor the f b i s exercise of these important stories that concludes my prepared recent report by the department of justice's office of the inspector general on the f b i s use of exigent letter another informal request for telephone records two thousand and ten report discusses a practice of two thousand and ten report discusses a practice of one f b i headquarters unit of issuing so called exigent letters to obtain telephone toll records not the contents of any calls that practice which ended almost three and a half years ago and began well before my ten at the f b i reflected a failure of internal controls it was however a wake up call for the f b i although we cannot unring the bell we have used alaskans learn from this situation to substantially change our internal control and compliance environment since two thousand and seven when the issue of the use of extant letters was first disclosed the f b i has significantly improved its policies training and procedures for requests for information protected by the electronic communications privacy act or act up the lessons learned from this experience what went well beyond national security letters and next gen letters instead we saw the accident letter situation as implemented adek of the need to systematically and carefully assess compliance risks across the f b i but particularly in the national security arena that realisation led to the formation of the office of integrity and compliance whose mission is to ensure f b i compliance with both the letter and spirit of all the political laws and regulations within that program is a positive step and should help few help should help prevent future situations like the one encountered with action letters as the o r g discussed at length in this report in the two thousand and seven in a cell report there were over seven hundred extra letters that request toll billing records from various tel for various telephone numbers all of the numbers stated that there were all the letters stated that there were extant circumstances and that either a federal grand jury subpoena or in a cell would follow sometimes there was no emergency but even when there was in many many times there was an emergency the f b i did not keep adequate records reflecting the nature of the emergency the telephone numbers for which records were sought and whether the promised future legal future process which many times was not legally required was ever issued should be emphasized that extant letters were not and were never intended to be n s l s rather they appear to have been a sort of placeholder borne out of a misunderstanding of the import of the usa patriot x amendments to act of much to our regret in the years following that act the f b i 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 two thousand and seven the f b i formally barred the use of accident letters to obtain telephone records and establish clear policies for f b i employees to follow during emergencies that process is in full compliance with eighteen u s c section twenty seven zero two which permits a carrier to provide subscriber and toll record information if the provider in good faith believes in an emergency involving death involving danger of death or serious physical injury to any person requires disclosure without delay of information  emergency the orgy's two thousand and ten report discusses in detail eleven so called blanket in ourselves as we brief the full committee in two thousand and seven the blanket in a cells were a good faith but ill conceived attempt by the counterterrorism division to address the backlog of numbers for which the f b i believed it had unfit filled obligations to provide legal process as they had promised to the action letter practice the f b i dedicated significant resources to researching all forty four hundred of the telephone numbers that appeared on non extant letters and on the so called blanket in a cells to ensure that we retained only telephone records for which we had a lawful basis we appreciate the finding of the o y g that our approach to determine which record to retain in which to purge was reasonable the orgy also addresses other informal requests for telephonic information the intersection of extra letters and fi so n o l c opinion i would be happy to discuss those issues with you today except for the o o c opinion which can only be discussed in a classified setting as to the o o c opinion i can however say that it did not affect in any way either our actions from two thousand and three to two thousand and six or the record retention decisions made by the f b i is part of the reconciliation project i just discussed during prior hearings before this committee and others members have asked whether employees who participated in issuing exigent letters would be prosecuted or punished the o'jays public integrity section declined prosecution but the f b i s office of professional responsibility will review the o r g s findings to determine whether any discipline of any employer is appropriate to that and we appreciate the report recognition that f b i employees involved in this matter w attempting to advance legitimate f b i investigations this is not excuse for 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're trusted by all segments of the american public including congress to use the tools were given responsibly we believe that the changes we have made in the recent recent several years reflect just how seriously we took this breach of that trust i appreciate the opportunity to appear before the subcommittee i look forward to answering your questions thank you statements to this committee the i g carefully reviewed the f b i process for the terming whether to keep or to purge the telephone records improperly obtained because of exit letters or similar methods the report concluded that the f b i s final determinations were reasonable even though in some cases the f b i may have kept records that were not relevant to an authorized investigation at the time they were obtained but in testimony before this committee f b i officials including mr prodi went further as the i g report that the ultimate f b i decision was a reasonable one i'm troubled by the fact that the f b i the f b i apparently did not do what it told the committee it would do and did not communicate this to us indeed we first learned that  destroyed the information it had said it would we first learned about this matter from the i g report could you explain this discrepancy please 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 doc in the telephone records that we retained the first step of that analysis was to determine whether it was 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 look 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 drop to the next step of the analysis and the next step of the analysis was whether at the time we received the records whether there was in fact an emergency that would have qualified under twenty seven o two if there was even though there wasn't then open an investigation to which the records were relevant we would retain the records this was you know we were trying to do the best we could to fix a situation that was not of our making any fact i'm sorry so in fact granted no one's questioning that when thing is that the testimony at the hearing was not that the 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 and that's what i'm asking for an explanation 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 unpalatable situation they found themselves it was inexcusable that they were in a situation once they were in that situation we looked at 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 of alde and we closed at the end now is reasonable but we do you conclude that they were not in fact we do agree that they were in that they were not in fact records not relevant to investigation that were not destroyed which would be contrary to the assurances given to this committee i do agree with this crony it depends on what time you're talking ok and the time they were looking at it the resignation was close but they had to do time travel back and forth to see when it was so that's that's a make clear that they were serious misconduct including violations of law up with the f b i 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 f b i over concerning oversight of the f b i in this area and what do you think congress should do to help make sure that such f b i authority is not abused as it was in this case  me just say again let me just eval for the question the ninth circuit in a decision on a different question state secrets said that the executive cannot be its own judge and that that's 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 the executive per se or any particular agency to be its own judge trust me is not opt is not something that you can rely on to protect our liberties and our privacy so what do you think so what are your plans concerning in light of that oversight of the f b i and what should congress do to help make sure that such f b i authorities are not abused we intend to continue to monitor this the use of these authorities which we think it's important that we do so initially we're going to look at the f b i s progress on addressing the recommendations we have made in all three of our reports from a ten in the first one seventeen and the second one thirteen in this one we believe they made progress but as as as the office of 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'll continue to do this in conjunction too with the department's review of at the national security division is doing extensive reviews of it so i think that is very important that we continue to monitor oversee a necessity i think it's very important congress to do so as well i think these kinds of hearings are important to hold the f b i accountable to hold their feet to the fire to make sure that they follow through with what they say they're going to do in terms of accountability so i think that is very important i also think as i stated my testimony that the issue about the office of legal counsel opinion about that authority that they have raised is important for congress to look at and make sure they are to look at what the authority that the office of legal counsel opinion said was with the f b i with regard to certain records which i can't describe it on classified setting is very important for congress to look at that to see whether there ought to be statutory accountability provisions related to that authority and finally do you think that perhaps that aside congress should legislate in terms of any other way in terms in force and perhaps  perhaps making violations of this in any way criminal such as was done with pfizer although that doesn't seem to work very well i'm not at this point i'm not certain that i would 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 f b i countable including disciplinary actions in the appropriate case thank you very much my time is expired and they're recognized for five minutes  pattern that the f b i really wants to get around various restrictions that the patriot act put on their activities for example with the original patriot act the f b i and deal j wanted  administrative subpoenas and that got very little support in the congress and was not included in the patriot act the section two fifteen business records provisions were very controversial and what  the f b i do they didn't see section two fifteen authority for business records but they used the national security letter statute which was passed in one thousand nine hundred eighty six 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 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 exchanges letters were never authorized by any kind of a statute and it took a big stink to stop those and we're talking about how the material obtained according to the extant letters were scrubbed you're not screw up now mr pro any you are the general counsel of the f b i 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 f b i 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's going on in your office you know i've discussed these matters and simply when i was chairman and afterwards with director mower and with successive attorneys general and i don't think you're getting the message you get the message today congressman quite the contrary i have gotten the message and i've had the message for several years the office general counsel did not sign off on the accident letters there was a point in time when a staff lawyer became aware of them rango did sign off on the exigent letters the counterterrorism division did ok well who is in charge of determining whether the f b i is following the law or not we are there's 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 well you know i i'm that feeling so charitable about that because i did the fighting with the f b i i know administrative subpoenas section two fifteen authority which i defended and then i find out after defending it that instead of using section two fifteen you use 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 i all i can say is you know i'm a stream lee disappointed  every time congress has tried to plug potential civil rights and civil liberties violations in our counterterrorism activities the f b i seems to a figured out a way to get around it  know i came to this whole issue is your friend more of the my subcommittee and full committee chairs and i feel betrayed i yield back the balance of my time congress when 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 that it's a big organization but you have a very that's the point we were never relied on our director general is making these reports and i was concerned about this type of evasion where i put the annual inspector general's reports in the patriot act simply because i was afraid that have in the fox guard the chicken coop down the street  was going to result in activities that would end up embarrassing the government when they're in the middle of a sensitive counter terrorism investigation and we we are we welcome the oversight from the inspector general we also oversee welcome the oversight from the national security division the department of justice the inspection division does a great deal of work in this area we're trying our best to maintain within a very large workforce and here it's to all of the rules and policies while still giving surveillance without appropriate checks and balances beyond with congress authorizing whenever congress said thus far no farther it went farther so it may be in the last couple years since two years a pattern of very deliberate evasion of the law and where the europe is knew about it is a different question but somebody did tell us that there's something about the chronology here that the committee seems to be focused on that is that i need to correct there was no substitution of in a cells for the power in the forty that was provided to us and to fifteen to fifteen provide very few know i am with all due respect i live this first six or seven years as i was trying to pass the bush administration's counter terrorism legislation and i have to defend what the bush administration was doing against my democratic friends that's why i said i feel betrayed because every time we tried to patch up a hole in what the f b i was doing you figured out to put another hole in the dike and this little dutch boy is only got ten fingers to put holes in the dike again i just want to make sure that the chronology in terms of what happened is correct and it is not the case that accident letters were adopted as some sort of way to get around the advances that you mr chairman and mr ranking member for holding this very important meeting on this issue i'll 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 both 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  which have no basis in federal statute or by way of the constitution how does the use of these letters square with the fourth amendment congressman the telephone records being held by the phone company as to the phone company the phone company the law and in this particular case act but governs these records and so in this situation the f b i contacts an american corporation say eighteen t v ar in any of the others and says look we need these records these telephone call records and we'll get you a subpoena for them or we'll get you a national security letter to back up this request but we're having in an emergency and we need the information now that's correct and that's exactly what eighteen u s c twenty some out to permit the problem was the promise of follow on process if it is truly an emergency that qualifies under eighteen u s c twenty seven zero two the phone company is entitled to provide the records to the somehow enter into this process as a legal means of obtaining that information you know mr fine is just on a three hundred three hundred fifty page report on how it got in there i think it came just into a different environment it should not of and moreover during the interim congress had had legislated in this area and said when you have a real emergency this is what you need to do and that law did york in connection with a criminal investigation after the september eleventh attacks when people from new york went in to f b i headquarters established a communications analysis unit that practiced migrated to that unit was inappropriate was there is no authority for them to  provide exit letters with follow up legal process there is an extra statute that they need to follow they didn't follow it they simply use 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 it was wrong and then and destroyed lost records which documented the precise actions  that were taken and the need for those actions correct well they never kept the records i mean they would not keep adequate records of this they would keep the exit letters in a database they would not they didn't keep national security letters it was a can credibly sloppy practices that they took and it made our job difficult even figuring out how often it occurred when it occurred has there been a request made by any  has there been such a request and if such a request was made would you support it mr fein and also missed approach me i'm not aware of any request techniques what we finish our board in january and provided to the f b i my understanding is that they are the office of professional responsibility is reviewing the report and determining what action is appropriate in that regard misk correct that the issue of what if any action will be taken against individual employees is currently pending with the office of professional responsibility within the f b i to stat office have the ability to refer to the criminal investigation side well that's already been done it's already the i g referred to the public integrity section who declined criminal prosecution so now we're moving on and discussing the issue of whether there will be disciplinary action taken and the office new form we have another so i will take advantage of the interim before she arrives to ask another question if i may  before the id's investigation began how could this practice of escape the notice of your office your notice for so long how could you not have known about this me personally well you personally or office again my office had awareness there was a a line attorney who was aware of the practice there had been some discussions i don't think the lawyers in fairness i think this is really what the inspector general concluded that the problem that we knew there was a problem but because he was not aware the scope of the problem does not feel they're searching for a new it was a her but that's correct ok and i mean as one of the things the i g criticizes the corrective action taken by the f b i prior to early two thousand and seven calling it seriously deficient for example it states that three years after the practice began your office directed that letters be revised but nonetheless approved a continued use until march two thousand and seven why did this attorney who provided the advice and the report truncated the advice that she actually provided there was more context to it in the in the advice that she provided what she was telling them was you can only do this if you've got a true emergency that is while she was not thinking about twenty seven o two her advice was actually consistent with twenty seven o two statute because she was 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 the carriers why 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's time to do 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 if you look at twenty seven o two standing alone twenty seven o two provides the providers with legal immunity if i provide records in the case of a good faith belief that an emergency we seem to have used all over the place without any subsequent provision of prices or anything else mystifying could you comment on what to produce or answer this question i about the ram as of how they could use this letter and we do criticize the people in our office for not adequately and accurately providing the legal advice on this by reviewing the letters and putting a culture at the f b i that that led to the use of these as exit gente letters when the oh i to report said that when it asked the f b i supervisors why they used them no one could satisfactorily know nobody could satisfactorily explain their actions instead they gave a variety of persuasive excuses contending either that they thought someone else had reviewed her privilege years that they didn't herod at 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 unquote so what i want to know is how you're changing that culture what procedures does the f b i have in place currently to ensure its employees understand and it's here to the law when conducting investigations  we've 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 there are employees have been adequately trained as a particular issue that comes up in legal training regularly and it will continue to be regularly trained on either a one year or two 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's reinforced on a regular basis so it's incredibly important to us that in our employees comply we were extremely disappointed when we discovered this and we discover similar sorts of issues where we've got a clear disconnect between what the rules and laws are th govern our actions and what employees are doing what you said that you're training them and then you then want to make sure that they that that they actually ingested that information but how do you check up on that the inspection division focusing for example on national security letters the inspection division which is or a sort of internal audit division within the bureau has audit to the use of national security letters several times in addition to the audit 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're looking in the files they're looking at the letters we also have instituted systems to make sure to correct what we view as fairly common errors that it's all automated now so that the employee can't make the error we've ensured that documents are outed to attorneys and things like that so we're looking systematically it 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 assure before the action is taken that in fact is being taken in accordance with all laws and regulations and policies 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 and other words what could be what could these companies have done to learn you or the i g about potentially be some behalf of f b i employees while the phone companies and the issue of the phone companies was i believe and i think the inspector general would agree with this is that the problem was that when their employees were relocated into our work space is both both parties there are systems and our systems of internal controls broke down so the phone company employees view themselves as part of the team and they were fighting the fight to keep america safe o employees lost that professional distance that they needed between themselves and the telephone companies so i don't think this was a matter of the phone companies feeling they should comply and not have any by 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 controls in previous testimony you said that the f b i did not accurately report to congress on the use of exigent letters how can congress and the i g provide better oversight to ensure this doesn't happen again 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're required to port to congress has vastly improved  reporting i can't say that it's one hundred percent accurate but i can say it's a thousand times better than it was when we were using antiquated spreadsheets to try to tabulate national security letters thank you very much thank you mr chairman i appreciate your holding the hearing this is an issue that's 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 the f b i and they have responded but they haven't taken any action as i understand it is that accurate or what can you tell us what actions they've taken and how long do you think it will take should take them and is next be in fashion when they have responded they have taken some actions and they've described how they're going to take additional action so i do believe they're taking our recommendations seriously they have not implemented all of our recommendations yet there are still some policies that they need to be put in place and in addition it's not a one time thing they need to provide training and guidance but it's not once one 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's the important thing here not simply to say we  concur and we've done it once but to go on and on and make sure that they are monitoring this they are ensuring that it's complied with and that while policies are good they don't they're not self executing and i may be incorrect but i believe your testimony indicated that much of this activity occurred during the two thousand and three to two thousand and six period is that accurate yes is there any indication that this pre preexisted two thousand and three well we looked at  a particular unit the communications analysis unit where the bulk of the activity occurred and that unit was created in two thousand and late two thousand and two early two thousand and three so that's when this problem really became a widespread one and that's where we focus our attention on and you don't think there are other problems did you have any reasonably there are other problems where the where the bureau is not abiding by its it constitutional duties and requirements can i rule that out no due to we've have indications of it we would have opened an investigation on that so we don't have a particular examples but i do think that this was this this had implications all throughout the bureau that is without and systems to ensure that they're complying with the law in this area you know it's not as if it is solely one one situation and i think that's why our message has to be broader than fix this one problem and you're ok you have to fix it in terms of a process and a culture and an oversight mechanism which i think they've said they've they they recognize that they've called this a wake up call will be there to monitor that do you believe the f b i director at the time was aware of these activities no we didn't have indication that he was until our investigation surfaced and then when when it did surface did he take adequate action yes i think he did he took responsibility the recognize 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 to for them to find it not wait for us to find it thank you sir mr prodi you mentioned that the fact is the report concludes the department justice must take additional action to ensure f b i personnel comply with the statute scotland regulations and policies covering the f b i at the what it said or do you do you have any any do you have an opinion upon when we might get compliance  affirmation from the d o j and the f b i that they're going to change their policies we congress and we've changed a massive number of policies that relate to act and how we get telephone records since two thousand and seven and we've briefed this committee staff and we're 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 changed systems and so for instance for national security letters which is where this all began we have an automated system which routes the first off that fills in all the boilerplate so that we take account of the mildly different language that's required depending on what statute you're proceeding on it routes it automatically so that it cannot proceed it cannot go unless it's been approved by everybody that's required to approve it including an attorney that system automatically populate the la it automatically uploaded into the system it automatically snags the statistics that we need for congressional reporting for emergency request not for action letters but true emergency requests were designing a very similar system which will  ophiolite 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've taken a long look at lots of different policies and also procedures so that our agents aren't making what i would call errors a sort of careless errors not intentional wrongdoing not trying to violate people's rights but just in the rush of their business not dotting i's and crossing ts the way we would like them to do so we were trying to use technology to make that easier for them so they can focus their attention on mission related work rather than on you know making sure that they've cited you know  for instead of c five in order to do what they want to do but we are again happy to come up in brief on all the changes to policies that we've made in the last three years in response to the ideas we're supportive if the committee would like thank you very much appreciate your testimony some particular appreciate that the chairman for bringing this important subject to the attention of the km subcommittee of the country  i thank the gentleman i think that concludes without objection all members will have five legislative days to submit to the chair dition all written questions for the witnesses which we will forward as 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 of the five legislated a system of any additional materials for inclusion in the record and we thank the witnesses and the members and with that the hearing