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THE INSPECTOR GENERAL’S INDEPENDENT REPORT ON THE FBI’S USE OF NATIONAL SECURITY LETTERS

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

MARCH 20, 2007

Serial No. 110–21

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

[Vacant] 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

(III)

C O N T E N T S 

MARCH 20, 2007

OPENING STATEMENT 

Page 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Committee on the Judiciary ..................... 1

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Ranking Member, Committee on the Judiciary ......................... 2

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Member, Committee on the Judiciary ................................. 4

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Member, Committee on the Judiciary ..................................... 5

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Member, Committee on the Judiciary .................................... 6

The Honorable J. Randy Forbes, a Representative in Congress from the 

State of Virginia, and Member, Committee on the Judiciary .......................... 6

WITNESSES 

Mr. Glenn A. Fine, Inspector General, U.S. Department of Justice 

Oral Testimony ..................................................................................................... 7

Prepared Statement ............................................................................................. 10

Ms. Valerie Caproni, General Counsel, Federal Bureau of Investigation 

Oral Testimony ..................................................................................................... 215

Prepared Statement ............................................................................................. 219

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Committee on the 

Judiciary ............................................................................................................... 272

Prepared Statement of the Honorable Linda T. Sa ́nchez, a Representative 

in Congress from the State of California, and Member, Committee on the 

Judiciary ............................................................................................................... 279

Response to Post-hearing questions from Glenn A. Fine, Inspector General, 

U.S. Department of Justice ................................................................................. 281

Post-hearing questions posed to Valerie Caproni, General Counsel, Federal 

Bureau of Investigation, from Chairman John Conyers, Jr. ............................ 286

Letter from Richard C. Powers, Assistant Director, Office of Congressional 

Affairs, Federal Bureau of Investigation ............................................................ 289

Prepared Statement of Caroline Frederickson, Director, Washington Legislative Office, American Civil Liberties Union (ACLU) ......................................... 290

Letter requesting additional information submitted to Valerie Caproni, General Counsel, Federal Bureau of Investigation .................................................. 295

Press release by the Department of Justice from March 9, 2007, submitted 

by the Honorable Howard Coble, a Represenative in Congress from the 

State of North Carolina, and Member, Committee on the Judiciary ............... 297

Article entitled ‘‘Official Alerted F.B.I. to Rules Abuse 2 Year Ago, Lawyer 

Says,’’ The New York Times, submitted by the Honorable John Conyers, 

Jr. .......................................................................................................................... 299

(1)

THE INSPECTOR GENERAL’S INDEPENDENT 

REPORT ON THE FBI’S USE OF NATIONAL 

SECURITY LETTERS 

TUESDAY, MARCH 20, 2007

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Committee met, pursuant to notice, at 9:40 a.m., in Room 

2141, Rayburn House Office Building, the Honorable John Conyers, 

Jr. (Chairman of the Committee) presiding. 

Present: Representatives Conyers, Berman, Boucher, Nadler, 

Scott, Watt, Lofgren, Jackson Lee, Waters, Delahunt, Sa ́nchez, 

Cohen, Johnson, Schiff, Davis, Wasserman Schultz, Ellison, Smith, 

Sensenbrenner, Coble, Goodlatte, Chabot, Lungren, Keller, Issa, 

Forbes, King, Feeney, Franks, and Gohmert. 

Staff Present: Perry Apelbaum, General Counsel and Staff Director; Robert Reed, Oversight Counsel; Joseph Gibson, Minority Chief 

Counsel; Caroline Lynch, Minority Counsel; Ameer Gopalani, Majority Counsel. 

Mr. CONYERS. Good morning. The Committee will come to order. 

We are here for a hearing on the Inspector General’s Independent Report on the FBI’s Use of National Security Letters. 

Nearly 6 years ago, in the immediate aftermath of September 

11th, the Department of Justice told us that they needed significantly enhanced authority, while promising the Members of this 

Committee in no uncertain terms that these new tools would be 

carefully and appropriately used. Two years ago, when the PATRIOT Act was reauthorized, they promised us there was not a 

single instance in which the law had been abused. 

Now, to underscore the importance of the reasons that we are 

holding this hearing, many of us remember the times in the past 

when the power of our Government has been abused. One war led 

to the suspension of Habeas Corpus; in another war, the notorious 

Palma raids; in World War II, the internment of Japanese Americans; in the Vietnam War, secret spying and enemy lists. In my 

view, we are now in a period where we risk a continuation of these 

deplorable acts and effect genuine harm to the Constitution and to 

the rule of law. 

One week ago, the Inspector General told us that the exact opposite was true of the promise that had been made that there was 

not a single instance, when the PATRIOT Act was being reauthorized, that the law had been abused. 

2

One tool in particular, the National Security Letters, essentially 

secret subpoenas issued without any court review, was used repeatedly to invade the privacy of law-abiding Americans outside the 

law and proper legal process. This was a serious breach of trust. 

The Department had converted this tool into a handy shortcut to 

illegally gather vast amounts of private information while at the 

same time significantly underreporting its activities to Congress. 

We learned that the number of National Security Letter requests 

had increased from 8,500 in the year 2000 to in excess of 143,000 

from the 3-year period between 2003 and 2005. The Department of 

Justice consistently provided inaccurate information to Congress 

concerning the National Security Letters, failing to identify at least 

4,600 security letter requests to us. The security letters were routinely issued without proper authorization and outside statutory 

and regulatory requirements. 

The Inspector General found that more than 60 percent of the investigatory files they looked at included one or more violations of 

FBI policy; but worse, the Inspector General found even more widespread abuses concerning the so-called Exigent Letters: that is, 

emergency requests for telephone and other data. An Exigent Letter, as opposed to a National Security Letter is meant to obtain information in an extreme emergency like a kidnapping when the 

Bureau has already sought subpoenas for the requested information. But the FBI issued these letters in nonemergencies as a 

means to bypass the requirements of the National Security Letter 

procedure, and so, as if it were not troubling enough, in many instances, the Bureau attempted to issue after the fact National Security Letters to cover their tracks on their use of Exigent Letters. 

The Inspector General specifically found that the Exigent Letters 

were ordinarily issued when there was no emergency present and 

very often when there was not even a pending investigation. More 

often than not, the letters were issued based on promises that subpoenas were in the process of being issued, when that was not the 

case and even though some subpoenas were never issued at all. 

The Federal Bureau of Investigation made numerous factual 

misstatements in the letters which were frequently issued in violation of the statute as well as the Attorney General and FBI guidelines. The recordkeeping was so poor that it was impossible for the 

IG to document how and why all of these problems occurred, and 

what disturbs me most is that the abuse and misuse of these security letters is not an isolated instance. It appears to be a part of 

a pattern in which the Department of Justice has violated not only 

our trust but the very laws which they are charged with enforcing, 

and so from the approval of the notorious torture memos to 

warrantless, illegal surveillance to the wrongful smearing of able 

U.S. Attorneys, this Department of Justice has squandered its reputation for independence and integrity. The Attorney General 

needs to understand that with power comes responsibility and with 

authority must come accountability. 

I would like now to turn to the distinguished gentleman from 

Texas, the Ranking Member of this Committee, Mr. Lamar Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

Mr. Chairman, I appreciate your holding this hearing on the Inspector General’s report on the FBI’s use of National Security LetVerDate 0ct 09 2002 15:28 Aug 01, 2007 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\FULL\032007\34175.000 HJUD1 PsN: 34175
3

ters. The Inspector General should be commended for conducting a 

thorough audit as directed by Congress and the PATRIOT Act reauthorization. The report raises concerns as to the FBI’s internal 

recordkeeping and guidelines for the use of NSLs and terrorism 

and espionage investigations. It is clear from the report that these 

deficiencies are the result of the poor implementation and administration of National Security Letter authority. In other words, the 

problem is enforcement of the law, not the law itself. Timely corrected measures by the FBI and effective oversight by the Justice 

Department and Congress will ensure proper use of this important 

law. 

The Inspector General’s report found that the FBI’s database for 

tracking NSLs significantly underestimated the number of NSL requests, resulting in inaccurate reports to Congress on the FBI’s use 

of NSLs. From 2003 to 2005, the FBI issued a total of 143,074 

NSLs. This compares to 739 Exigent Letters to three telephone 

companies issued contrary to national security investigation guidelines. The Exigent Letters represent 1/200th of the National Security Letters issued. Although the use of these unauthorized letters 

is disconcerting, the FBI discontinued this practice last year. The 

Inspector General makes two other very important findings. 

First, there is no evidence that anyone at the FBI intended to 

violate the law or internal policy. This is a significant finding because it confirms that FBI agents acted in good faith and sought 

to comply with the law even as they worked under severe time constraints and with an urgent desire to thwart terrorist activities. 

Second, as detailed by the Inspector General, NSLs are a critical 

tool in fighting terrorism and in keeping our country safe. The information acquired through NSLs is valuable to international terrorism and espionage investigations and has allowed the FBI and 

intelligence agencies to identify terrorists and spies, the sources of 

their financing and their plans to attack or harm our national security. 

In addition, the FBI shares important information gathered 

through NSLs with other intelligence agencies, joint terrorism task 

forces and State and local law enforcement agencies. To do their 

job, the FBI must be able to collect important information about 

suspected terrorist and spies while complying with the law and 

freely share such information with key partners. 

In response to extensive oversight efforts conducted last Congress, the PATRIOT Reauthorization Act added critical new safeguards. For instance, an NSL recipient can challenge the request 

in court. Nondisclosure orders require supervisory approval, and 

the recipient may disclose the NSL to an attorney. I applaud the 

Administration’s response to the Inspector General’s report and expect the Administration to follow through on its promise to act 

quickly to remedy the deficiencies identified by the Inspector General. 

Mr. Chairman, on September 11, 2001, the United States was attacked. More than 3,000 people lost their lives. Members of Congress overwhelmingly approved important new counterterrorism 

tools for our Nation’s law enforcement personnel and updated existing authorities to meet the terrorist threat. We must continue to 

demonstrate responsible leadership on the NSLs and other imporVerDate 0ct 09 2002 15:28 Aug 01, 2007 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 H:\WORK\FULL\032007\34175.000 HJUD1 PsN: 34175
4

tant national security issues. Of course, we need to be vigilant to 

make sure these problems are fixed, that the Inspector General’s 

recommendations are implemented and that our civil liberties and 

privacy are protected. 

Mr. Chairman, I yield back the balance of my time. 

Mr. CONYERS. I thank the gentleman for his statement. 

I would like now to recognize the Chairman of the Constitution 

Subcommittee, Jerry Nadler, for 21⁄2 minutes. 

Mr. NADLER. I thank the Chairman. I would like to thank Chairman Conyers for holding this important hearing on the FBI abuses 

of National Security Letters. 

We are here today in response to the Department of Justice Inspector General report that found widespread abuses of the FBI’s 

authority to issue National Security Letters. An NSL can be issued 

to a third party such as a health insurance company or an Internet 

service provider, ordering them to reveal all of their information 

about you and your transactions, and the third party is prohibited 

from telling you or anyone else about the order. That is the socalled ‘‘gag order provision’’ so you cannot object to an NSL directed at your information in court as you could to a subpoena, because you do not know about it and the third party may have no 

interest in going to court to protect your rights or your privacy. 

While last year’s reauthorization of the PATRIOT Act did make 

some changes to the NSL provisions, these changes were essentially meaningless. For example, the court is now authorized to 

modify and set aside the gag order only if it finds there is no reason to believe that disclosure would endanger national security, 

diplomatic relations or anyone’s life or safety, but the court must 

accept the Government’s assertion of harm as conclusive, so this 

protection is meaningless. 

Some of us had predicted that the unrestricted authority of the 

FBI to issue NSLs would be abused, and unfortunately, our worst 

fears have now been realized. The IG’s NSLs have been used by the 

FBI to collect and retain private information about American citizens who are not reasonably suspected of being involved in terrorism. During the last Congress, we predicted that unchecked 

power would lead to rampant abuse. That is why I proposed the 

Stop Self-Authorized Secret Searches Act 2 years ago. This bill 

would have restored some pre-PATRIOT Act provisions that an 

NSL could not be issued unless the FBI made a factual, individualized showing that the records sought pertained to a suspected terrorist or spy. It would have given the recipient of a National Security Letter an opportunity to obtain legal counsel, the right to challenge the letter and the nondisclosure requirement, a real right to 

challenge it. It would have given notice to the target of the NSL 

if the Government later seeks to use the records obtained from the 

NSL against him or her in a subsequent proceeding. It would have 

given the target an opportunity to receive legal counsel and challenge the use of those records. 

The bill would also have authorized the FBI to obtain documents 

that it legitimately needs while protecting the privacy of law-abiding American citizens. 

The abuses by the DOJ and by the FBI have proven that these 

legislative fixes are a necessary check on the investigatory power. 

5

We do not trust Government always to be run by angels, especially 

not this Administration. It is not enough to mandate that the FBI 

fix internal management problems in recordkeeping because the 

statute itself authorizes the unchecked selection of information on 

innocent Americans. Congress must act now to fix the statute authorizing the abuses revealed in the IG report and to hold those responsible for these abuses and violations accountable. 

Thank you. I yield back. 

Mr. CONYERS. Thank you. 

The Chair recognizes the distinguished gentleman from Arizona, 

the Ranking minority Member of the Constitution Subcommittee, 

Trent Franks, for 21⁄2 minutes. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Chairman, today our task is a vital one, to check and balance our sister branch of Government through oversight and to ensure citizens’ rights are being properly safeguarded. Today’s subject 

is somewhat delicate because we must all walk a fine line. In our 

great and critical responsibility to prevent jihadist attacks upon 

American citizens, we must also be careful to strike the proper balance between vigilance and fighting the enemy on the one side of 

the scales and the preservation of citizens’ rights on the other. 

The report of the Inspector General’s that we review today is 

hopeful. We see that, while there are human imperfections in the 

FBI’s operation, there is an overall finding that the FBI is, indeed, 

carrying out its duties responsibly, there being no evidence of any 

intentional or deliberate act to violate the law. The NSLs are performing their vital function as a valuable tool in national security 

investigations. 

To put today’s hearing in perspective, we should keep in mind 

that the issuance of NSLs under the PATRIOT Act is a relatively 

new process given that the PATRIOT Act is only a few years old 

and that this new use of NSLs will necessarily require a careful examination of their best and most appropriate use in this early period. Certainly, we will have to work out the kinks given that we 

are most likely in the business of fighting terror for a long time to 

come. 

While the FBI’s practices have had their shortcomings, it appears 

that these are problems that can be easily resolved, and this is 

good news. Many of the issues that we must review today are administrative in nature and, to some extent, unavoidable. Government is a human institution, and it is therefore by definition imperfect. Those of us who have run corporations know that a perfect 

audit is a very rare occurrence, particularly on the first go-around. 

Most businesses do internal audits, perhaps many, many internal audits, to discover where human judgment has fallen short and 

where to improve before being audited by an outside source. This 

is an arduous but necessary task and one that I hope we do well 

here today and prospectively. The FBI has vowed that it will make 

all of the adjustments that Mr. Gonzalez and Ms. Caproni have recommended. We look forward to the realization of this goal. 

With that, I thank the witnesses for joining us today, and we 

look forward to hearing your testimony. 

Thank you, Mr. Chairman. 

Mr. CONYERS. Thank you. 

6

The Chair recognizes the distinguished gentleman from Virginia, 

Bobby Scott, Chairman of the Crime Subcommittee, for 21⁄2 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Chairman, we all believe that it is important to be aggressive in fighting terrorism and also aggressive in maintaining privacy and freedoms, and I do not believe we should operate on the 

premise that we always have to give up freedom in order to obtain 

security, but for us to provide appropriate oversight we have to 

have accurate information. Unfortunately, there are indications 

that we have received clearly inaccurate reports after the significant use of secret, invasive processes that do not appear to be necessary to advance terrorism-related investigations. Whether it is a 

secret NSA wiretapping in violation of the FISA law or the inappropriate use of the National Security Letters, we are discovering 

that what is actually occurring is quite different from what we 

were being told, and we cannot evaluate the ongoing need for NSA 

letters without accurate information. 

There is also a clear indication of intentional misuse of the word 

‘‘exigent’’ letters to telephone companies as emergency information 

when in fact no emergency existed. Somebody obviously knew that 

was a problem that would affect reports to Congress and oversight 

boards, and we need to find out who these people are. With these 

disturbing indications, Mr. Chairman, I hope the testimony of the 

witnesses today will reveal who is responsible for these abuses and 

who should be held accountable for false reports to Congress. 

Thank you, Mr. Chairman. I yield back. 

Mr. CONYERS. Thank you so much. 

Another Virginian, the Ranking minority Member of the Crime 

Subcommittee, Mr. Randy Forbes. 

Mr. FORBES. Mr. Chairman, I would like to thank you and the 

Ranking Member, Congressman Smith, for holding this important 

hearing today, and also for our witnesses for being here. 

You know, the subject matter of this hearing makes for great 

theater, but when the show is over we have the task of finding the 

facts and making sure the proper balance is struck and implemented to protect our citizens. That we will do, and hopefully, we 

will do it without the negativism and the emotionalism that seems 

so prevailing in public policy today. Pounding our fists makes great 

sound bites, but does not stop terrorists or protect the privacy 

rights of our citizens. 

It is clear that National Security Letters are important tools in 

international terrorism and espionage investigations conducted by 

the FBI. The Inspector General’s report, which details the audit of 

77 case files in four field offices, shows a disturbing pattern. In 60 

percent of those cases, the FBI’s files were found to be in violation 

of the FBI’s internal control policies for issuing National Security 

Letters. While the audit conducted concluded that there was no evidence of any intentional or deliberate act to violate the law, it is 

also clear that changes need to be made to the FBI’s procedures so 

that they reflect the scope and intent of the law rather than the 

evolution of general practice. 

I look forward to hearing from the FBI about what procedures 

were in place during the time of the Inspector General’s audit and 

7

how, given the inadequacies identified by the Inspector General, 

the FBI plans to correct these. 

Mr. Chairman, I yield back the balance of my time. 

Mr. CONYERS. Thank you. 

All other opening statements will be included in the record. 

Mr. Glenn A. Fine, Inspector General at the Department of Justice, a post held since he was confirmed by the Senate on December 

15, 2000. Mr. Fine has worked for the Department’s Office of Inspector General in a variety of capacities since January 1995. He 

has had several years in private practice and has also served as an 

Assistant United States Attorney in Washington, D.C. 

We are also privileged to have with us the General Counsel of 

the Federal Bureau of Investigation, Ms. Valerie Caproni, a position she has held since August 2003. Prior to that, Ms. Caproni 

served as an Assistant United States Attorney in the Eastern District of New York, as a supervisor at the Securities and Exchange 

Commission and has also worked in private practice. 

All of your statements will be made a part of the record in their 

entirety, and we will have a 5-minute time for each of you, and we 

ask Inspector General Glenn A. Fine to begin our testimony. 

Welcome to the Committee. 

TESTIMONY OF GLENN A. FINE, INSPECTOR GENERAL,

U.S. DEPARTMENT OF JUSTICE 

Mr. FINE. Mr. Chairman, Congressman Smith and Members of 

the Committee on the Judiciary, thank you for inviting me to testify about two reports issued by the Department of Justice Office 

of the Inspector General regarding the FBI’s use of National Security Letters and its use of section 215 orders to obtain business 

records. 

The PATRIOT Reauthorization Act required the OIG to examine 

the FBI’s use of these authorities, and on March 9th we issued reports detailing our findings. Today, I will summarize the key findings from our reviews, focusing my comments on the National Security Letter report. 

Under five statutory provisions, the FBI can use National Security Letters (NSLs), to obtain without review by a court records 

such as customer information from telephone companies, Internet 

service providers, financial institutions, and consumer credit companies. Although most of the statutory provisions regarding NSLs 

existed prior to the enactment of the PATRIOT Act, the Act significantly broadened the FBI’s authority to use NSLs in two primary 

ways. 

First, it eliminated the requirement that the information sought 

must pertain to a foreign power or an agent of a foreign power and 

substituted the standard that the information requested must be 

relevant to or sought for an investigation to protect against international terrorism or espionage. 

Second, the PATRIOT Act significantly expanded approval authority for NSLs beyond a limited number of FBI headquarters officials to the heads of all FBI field offices. Our review examined the 

FBI’s use of NSLs from 2003 through 2005. The OIG will conduct 

another review examining the FBI’s use of NSLs in 2006, which we 

are required to issue by the end of this year. 

8

In sum, our review found widespread and serious misuse of the 

FBI’s National Security Letter authorities. In many instances, the 

FBI’s misuse violated NSL statutes, Attorney General guidelines, 

or the FBI’s own internal policies. We also found that the FBI did 

not provide adequate guidance, adequate controls, or adequate 

training on the use of these sensitive authorities. Before describing 

the main findings of our report, however, I believe it is important 

to provide context for these findings. 

First, we recognize the significant challenges the FBI was facing 

during the period covered by our review. After the September 11th 

terrorist attacks, the FBI implemented major organizational 

changes while responding to continuing terrorist threats and conducting many counterterrorism investigations, both internationally 

and domestically. 

Second, it is also important to recognize that in most but not all 

of the cases we examined, the FBI was seeking information that it 

could have obtained properly through National Security Letters if 

it had followed applicable statutes, guidelines and internal policies. 

Third, we did not find that the FBI employees sought to intentionally misuse NSLs or sought information that they knew they 

were not entitled to obtain. Instead, we believe the misuses and the 

problems we found generally were the product of mistakes, carelessness, confusion, sloppiness, lack of training, lack of adequate 

guidance, and lack of adequate oversight. I do not believe that any 

of my observations, however, excuses the FBI’s misuse of National 

Security Letters. 

When the PATRIOT Act enabled the FBI to obtain sensitive information through NSLs on a much larger scale, the FBI should 

have established sufficient controls and oversight to ensure the 

proper use of those authorities. The FBI did not do so. The FBI’s 

failures, in my view, were serious and unacceptable. 

I would now like to highlight our review’s main findings. Our review found that after enactment of the PATRIOT Act the FBI’s use 

of National Security Letters increased dramatically. In 2000, the 

last full year prior to the passage of the PATRIOT Act, the FBI 

issued approximately 8,500 NSL requests. After the PATRIOT Act, 

the number of NSL requests increased to approximately 39,000 in 

2003, approximately 56,000 in 2004, and approximately 47,000 in 

2005. In total, during the 3-year period, the FBI issued more than 

143,000 NSL requests. However, we believe that these numbers, 

which are based on information from the FBI’s database, significantly understate the total number of NSL requests. During our 

file reviews in four FBI field offices, we found additional NSL requests in the files than were contained in the FBI database. In addition, many NSL requests were not included in the Department’s 

reports to Congress. 

Our review also attempted to assess the effectiveness of National 

Security Letters. NSLs have various uses, including to develop 

links of subjects of FBI investigations and other individuals and to 

provide leads and evidence to allow FBI agents to initiate or close 

investigations. Many FBI headquarters and field personnel, from 

agents in the field to senior officials, told the OIG that NSLs are 

indispensable investigative tools in counterterrorism and counterVerDate 0ct 09 2002 15:28 Aug 01, 2007 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 H:\WORK\FULL\032007\34175.000 HJUD1 PsN: 34175
9

intelligence investigations, and they provided us with examples 

and evidence of the importance to these investigations. 

The OIG review also examined whether there were any improper 

or illegal uses of NSL authorities. From 2003 through 2005, the 

FBI identified 26 possible intelligence violations involving its use 

of NSLs. We visited four FBI field offices and reviewed a sample 

of 77 investigative case files and 293 NSLs. We found 22 possible 

violations that had not been identified or reported by the FBI. We 

have no reason to believe that the number of violations we identified in the field offices was skewed or disproportionate to the number of violations in other files. This suggests that the large number 

of NSL-related violations throughout the FBI have not been identified or reported by FBI personnel. 

In one of the most troubling findings, we determined that the 

FBI improperly obtained telephone toll billing records and subscriber information from three telephone companies pursuant to 

over 700 so-called Exigent Letters. These letters generally were 

signed by personnel in the Communications Analysis Unit (CAU), 

a unit of the Counterterrorism Division in the FBI Headquarters. 

The Exigent Letters were based on a form letter used by the FBI’s 

New York Field Division in the criminal investigations related to 

the September 11th attacks. 

Our review found that the FBI sometimes used these Exigent 

Letters in nonemergency circumstances. In addition, the FBI failed 

to ensure that there were authorized investigations to which the 

requests could be tied. The Exigent Letters also inaccurately represented that the FBI had already requested subpoenas for the information when in fact it had not. The FBI also failed to ensure 

that NSLs were issued promptly to telephone companies after the 

Exigent Letters were sent. Rather, in many instances, after obtaining records from the telephone companies, the FBI issued National 

Security Letters months after the fact to cover the information obtained. 

We concluded that the FBI’s use of these Exigent Letters inappropriately circumvented the requirements of the NSL statute and 

violated Attorney General guidelines and FBI policies. In response 

to our report, we believe that the Department and the FBI are taking our findings seriously. The FBI concurred with all of our recommendations, and the Department’s National Security Division 

will be actively engaged in oversight of the FBI’s use of NSLs. 

In addition, the FBI’s Inspection Division has initiated audits of 

a sample of NSLs issued by each of its 56 field offices. The FBI is 

also conducting a special investigation on the use of Exigent Letters to determine how and why the problems occurred. The OIG 

will continue to review the FBI’s use of National Security Letters. 

In addition to issuing a second report on the use of NSLs in 2006, 

we intend to monitor the actions that the FBI and the Department 

are taking to address the problems we found in that review. 

Finally, I want to note that the FBI and the Department cooperated fully with our reviews, agreed to declassify information in the 

report, and appears to be committed to addressing the problems we 

identified. We believe that significant efforts are necessary to ensure that the FBI’s use of National Security Letters is conducted 

10

in full accord with the statutes, Attorney General guidelines, and 

FBI policy. 

That concludes my testimony, and I will be pleased to answer 

any questions. 

[The prepared statement of Mr. Fine follows:]

PREPARED STATEMENT OF GLENN A. FINE

Mr. Chairman, Mr. Smith, and members of the Committee on the Judiciary: 

Thank you for inviting me to testify about two recent reports issued by the Department of Justice Office of the Inspector General (OIG) regarding the Federal Bureau of Investigation’s (FBI) use of national security letters and the FBI’s use of 

Section 215 orders to obtain business records. In the Patriot Reauthorization Act, 

enacted in 2006, Congress directed the OIG to examine the FBI’s use of these two 

important authorities. The reviews were directed to examine, among other things, 

the number of times these authorities were used, the importance of the information 

obtained, how the information was utilized, any improper or illegal uses of these authorities, and other noteworthy facts or circumstances related to their use. 

On March 9, 2007, we issued separate reports on the FBI’s use of national security letters and Section 215 orders. We publicly released two unclassified reports, 

with only limited information redacted (blacked out) which the Department or the 

FBI considered to be classified. We also provided to Congress, including this Committee, copies of the full classified reports that contain some additional classified information on the FBI’s use of the two authorities. However, the OIG’s main findings 

and conclusions are included in the unclassified versions that were publicly released. 

In this written statement, I will summarize the key findings from our reports, focusing most of my comments on the national security letters report. I will first provide brief background on national security letters and how we conducted our review. 

I will then provide a few observations to put our findings in context. Next, I will 

highlight the main findings of our national security letter report. After that, I will 

briefly summarize our report on the FBI’s use of Section 215 orders to obtain business records. 

I. THE OIG’S NATIONAL SECURITY LETTER REPORT

A. Background on National Security Letters 

Under five statutory provisions, the FBI can use national security letters (NSLs) 

to obtain—without a court order or any review by a court—records such as customer 

information from telephone companies, Internet service providers, financial institutions, and consumer credit companies. Most of these statutory provisions regarding 

NSLs existed prior to enactment of the USA PATRIOT Act (Patriot Act) in October 

2001. Prior to the Patriot Act, the FBI could obtain information using a national 

security letter only if it had ‘‘specific and articulable facts giving reason to believe 

that the customer or entity whose records are sought [was] a foreign power or agent 

of a foreign power.’’ In addition, NSLs could only be issued by a limited number of 

senior FBI Headquarters officials. 

The Patriot Act significantly broadened the FBI’s authority to use NSLs by both 

lowering the threshold standard for issuing them and by expanding the number of 

FBI officials who could sign the letters. First, the Patriot Act eliminated the requirement that the information sought must pertain to a foreign power or an agent of 

a foreign power. Instead, it substituted the lower threshold standard that the information requested must be relevant to or sought for an investigation to protect 

against international terrorism or espionage. Consequently, the Patriot Act authorized the FBI to issue national security letters to request information about persons 

other than the subjects of FBI national security investigations, so long as the requested information is relevant to an authorized national security investigation. 

In addition, the Patriot Act permitted Special Agents in Charge of the FBI’s 56 

field offices to sign national security letters, which significantly expanded approval 

authority beyond a limited number of FBI Headquarters officials. Finally, the Patriot Act added a new authority allowing NSLs to be used to obtain consumer full 

credit reports in international terrorism investigations. 

B. The OIG Review 

As directed by the Patriot Reauthorization Act, the OIG’s report examined the 

FBI’s use of national security letters during the time period from 2003 through 

2005. As required by the Reauthorization Act, the OIG will conduct another review 

11

examining the use of NSLs in 2006, which we are required to issue by the end of 

this year. 

During our review, a team of OIG staff conducted interviews of over 100 FBI and 

Department of Justice employees, including personnel at FBI Headquarters, the FBI 

Office of the General Counsel (OGC), FBI Counterterrorism and Counterintelligence 

Divisions, FBI personnel in four field divisions, and officials in the Department’s 

Criminal Division. 

In addition, the OIG reviewed a sample of FBI case files that contained national 

security letters at four FBI field divisions: Chicago, New York, Philadelphia, and 

San Francisco. These field divisions were selected from among the eight FBI field 

divisions that issued the most NSL requests during the review period. During our 

field work at the four field divisions, we examined a sample of 77 investigative case 

files that contained 293 national security letters. An investigative case file can contain a large number of documents, and some of the case files we reviewed consisted 

of the equivalent of 20 or 30 boxes of documents. We used a judgmental sample in 

selecting which files to review and included in our sample both counterterrorism 

and counterintelligence cases, cases in which the NSLs were issued during preliminary investigations and full investigations, and opened and closed FBI cases. 

The OIG also analyzed the FBI OGC’s national security letter tracking database, 

which the FBI uses for collecting information to compile the Department’s required 

reports to Congress on NSL usage. Finally, we distributed an e-mail questionnaire 

to the counterintelligence and counterterrorism squads in the FBI’s 56 field divisions in an effort to determine the types of analytical products the FBI developed 

based on NSLs, the manner in which NSL-derived information was disseminated, 

and the occasions when such information was provided to law enforcement authorities for use in criminal proceedings. 

C. Findings of the OIG Review 

Our review found widespread and serious misuse of the FBI’s national security 

letter authorities. In many instances, the FBI’s misuse of national security letters 

violated NSL statutes, Attorney General Guidelines, or the FBI’s own internal policies. We also found that the FBI did not provide adequate guidance, adequate controls, or adequate training on the use of these sensitive authorities. In many respects, the FBI’s oversight of the use of NSL authorities expanded by the Patriot 

Act was inconsistent and insufficient. 

1. Background to OIG Findings 

However, before detailing the main findings of our report, I believe it is important 

to provide context for these findings and also to note what our review did not find. 

First, in evaluating the FBI’s misuse of national security letters, it is important 

to recognize the significant challenges the FBI was facing during the period covered 

by our review. After the September 11 terrorist attacks, the FBI implemented major 

organizational changes to prevent additional terrorist attacks in the United States. 

These changes included overhauling and expanding its counterterrorism operations, 

expanding its intelligence capabilities, attempting to upgrade its information technology systems, and seeking to improve coordination with state and local law enforcement agencies. These changes occurred while the FBI and its Counterterrorism 

Division had to respond to continuing terrorist threats and conduct many 

counterterrorism investigations, both internationally and domestically. 

Second, it is important to recognize that in most—but not all—of the cases we examined in this review, the FBI was seeking information that it could have obtained 

properly through national security letters if it had followed applicable statutes, 

guidelines, and internal policies. 

Third, national security letters are important tools that can provide critical evidence in counterterrorism and counterintelligence investigations. Many Headquarters and field personnel—from agents to senior officials—believe these tools are 

indispensable to the FBI’s mission to detect and deter terrorism and espionage. 

Fourth, we did not find that that FBI agents sought to intentionally misuse the 

national security letters or sought information that they knew they were not entitled to obtain through the letters. Instead, we believe the misuses and the problems 

we found were the product of mistakes, carelessness, confusion, sloppiness, lack of 

training, lack of adequate guidance, and lack of adequate oversight. 

Yet, I do not believe that any of these observations excuse the FBI’s widespread 

and serious misuse of its national security letter authorities. When the Patriot Act 

enabled the FBI to obtain sensitive information through NSLs on a much larger 

scale, the FBI should have established sufficient controls and oversight to ensure 

the proper use of these authorities. The FBI did not do so. The FBI’s failures, in 

my view, were serious and unacceptable. 

12

I would now like to highlight our review’s main findings, which are detailed in 

the OIG’s 126-page report. 

2. OIG Findings 

Our review found that, after enactment of the Patriot Act, the FBI’s use of national security letters increased dramatically. In 2000, the last full year prior to passage of the Patriot Act, the FBI issued approximately 8,500 NSL requests. It is important to note that one national security letter may request information about multiple telephone numbers or e-mail addresses. Because the FBI’s semiannual classified reports to Congress provide the number of requests rather than the number of 

letters, we also focused on the total number of requests. 

After the Patriot Act, the number of NSL requests issued by the FBI increased 

to approximately 39,000 in 2003, approximately 56,000 in 2004, and approximately 

47,000 in 2005. In total, during the 3-year period covered by our review, the FBI 

issued more than 143,000 NSL requests. 

However, we believe that these numbers, which are based on information from the 

FBI’s database, understate the total number of NSL requests issued by the FBI. 

During our review, we found that the FBI database used to track these requests 

is inaccurate and does not include all NSL requests. 

First, when we compared information from the database to the documents contained in investigative case files in the 4 FBI field offices that we visited, we found 

approximately 17 percent more NSL letters and 22 percent more NSL requests in 

the case files than we could find in the FBI database. In addition, we determined 

that many NSL requests were not included in the Department’s reports to Congress 

because of the FBI’s delays in entering NSL information into its database. We also 

found problems and incorrect data entries in the database that caused NSLs to be 

excluded from the Department’s reports to Congress. 

Therefore, based on shortcomings in the FBI’s NSL database and its reporting 

processes, we concluded that the Department’s semiannual classified reports to Congress on NSL usage were inaccurate and significantly understated the total number 

of NSL requests during the review period. 

Our report also provides breakdowns on the types of NSLs used by the FBI. We 

determined that, overall, approximately 73 percent of the total number of NSL requests were used in counterterrorism investigations and 26 percent in counterintelligence cases. 

In addition, our review found that the percentage of NSL requests that related 

to investigations of U.S. persons increased from about 39 percent of all NSL requests in 2003 to about 53 percent in 2005. 

As directed by the Patriot Reauthorization Act, our review attempted to assess 

the effectiveness of national security letters. NSLs have various uses, including to 

develop evidence to support applications for orders issued under the Foreign Intelligence Surveillance Act (FISA), develop links between subjects of FBI investigations 

and other individuals, provide leads and evidence to allow FBI agents to initiate or 

close investigations, and corroborate information obtained by other investigative 

methods. FBI personnel told the OIG that NSLs are indispensable investigative 

tools in many counterterrorism and counterintelligence investigations, and they provided us with examples and evidence of their importance to these investigations. 

We determined that information obtained from NSLs is also used in FBI analytical intelligence products that are shared within the FBI and with DOJ components, 

Joint Terrorism Task Forces, other federal agencies, and other members of the intelligence community. 

In addition, information obtained from NSLs is stored in FBI databases such as 

its Automated Case Support system and its Investigative Data Warehouse. However, because information is not tagged or identified in FBI files or databases as derived from NSLs, we could not determine the number of times that NSLs were used 

in such analytical products, shared with other agencies, or used in criminal cases. 

As also directed by the Patriot Reauthorization Act, the OIG review examined 

whether there were any ‘‘improper or illegal uses’’ of NSL authorities. We found that 

from 2003 through 2005, the FBI identified 26 possible intelligence violations involving its use of NSLs, 19 of which the FBI reported to the President’s Intelligence 

Oversight Board (IOB). Of the 26 possible violations, 22 were the result of FBI errors, while 4 were caused by mistakes made by recipients of the NSLs. 

These possible violations included the issuance of NSLs without proper authorization, improper requests under the statutes cited in the NSLs, and unauthorized collection of telephone or Internet e-mail transactional records. For example, in three 

of these matters the FBI obtained the information without issuing national security 

letters. One of these three matters involved receipt of information when there was 

no open national security investigation. In another matter, the FBI issued national 

13

security letters seeking consumer full credit reports in a counterintelligence investigation, which the NSL statutes do not permit. In other matters, the NSL recipient 

provided more information than was requested in the NSL, or provided information 

on the wrong person, either due to FBI typographical errors or errors by the recipients of NSLs. 

In addition to the possible violations reported by the FBI, we reviewed FBI case 

files in four field offices to determine if there were unreported violations of NSL authorities, Attorney General Guidelines, or internal FBI policies governing the approval and use of NSLs. Our review of 293 national security letters in 77 files found 

22 possible violations that had not been identified or reported by the FBI. 

The violations we found fell into three categories: improper authorization for the 

NSL, improper requests under the pertinent national security letter statutes, and 

unauthorized collections. Examples of the violations we identified include issuing 

NSLs for consumer full credit reports in a counterintelligence case, which is not 

statutorily permitted; issuing an NSL for a consumer full credit report when the 

FBI Special Agent in Charge had approved an NSL for more limited credit information under a different NSL authority; issuing an NSL when the investigation had 

lapsed; and obtaining telephone toll billing records for periods in excess of the time 

period requested in the NSL due to third-party errors. 

Thus, it is significant that in the limited file review we conducted of 77 investigative files in 4 FBI field offices, we identified nearly as many NSL-related violations 

(22) as the total number of possible violations that the FBI had identified (26) in 

reports from all FBI Headquarters and field divisions over the entire 3-year period. 

Moreover, 17 of the 77 files we reviewed, or 22 percent, had 1 or more violations. 

We have no reason to believe that the number of violations we identified in the 

four field offices we visited was skewed or disproportionate to the number of possible violations in other files. This suggests that a large number of NSL-related violations throughout the FBI have not been identified or reported by FBI personnel. 

Our examination of the violations we identified did not reveal deliberate or intentional violations of the NSL statutes, the Attorney General Guidelines, or FBI policy. We believe that some of these violations demonstrated FBI agents’ confusion 

and unfamiliarity with the constraints on national security letter authorities. We 

also believe that many of the violations occurred because FBI personnel do not consistently cross check the NSL approval documentation with the proposed NSLs, or 

verify upon receipt that the information supplied by the recipient matches the request. Other violations demonstrated inadequate supervision over use of these authorities. 

We examined the FBI investigative files in the four field offices to determine 

whether FBI case agents and supervisors had adhered to FBI policies designed to 

ensure appropriate supervisory review of the use of NSL authorities. We found that 

60 percent of the investigative files we examined contained one or more violations 

of FBI internal policies relating to national security letters. These included failures 

to document supervisory review of NSL approval memoranda and failures to include 

in NSL approval memoranda required information, such as the authorizing statute, 

the status of the investigative subject, or the number or types of records requested. 

In another finding, our review determined that the FBI Headquarters 

Counterterrorism Division generated over 300 NSLs exclusively from ‘‘control files’’ 

rather than from ‘‘investigative files,’’ in violation of FBI policy. When NSLs are 

issued from control files, the NSL documentation does not indicate whether the 

NSLs are issued in authorized investigations or whether the information sought in 

the NSLs is relevant to those investigations. This documentation is necessary to establish compliance with NSL statutes, Attorney General Guidelines, and FBI policies. 

In addition, we found that the FBI had no policy requiring the retention of signed 

copies of national security letters. As a result, we were unable to conduct a comprehensive audit of the FBI’s compliance with its internal control policies and the 

statutory certifications required for NSLs. 

In one of the most troubling findings, we determined that from 2003 through 2005 

the FBI improperly obtained telephone toll billing records and subscriber information from 3 telephone companies pursuant to over 700 so-called ‘‘exigent letters.’’ 

These letters generally were signed by personnel in the Communications Analysis 

Unit (CAU), a unit of the Counterterrorism Division in FBI Headquarters, and were 

based on a form letter used by the FBI’s New York Field Division in the criminal 

investigations related to the September 11 attacks. The exigent letters signed by the 

CAU typically stated:

Due to exigent circumstances, it is requested that records for the attached list 

of telephone numbers be provided. Subpoenas requesting this information have 

14

been submitted to the U.S. Attorney’s Office who will process and serve them 

formally to [information redacted] as expeditiously as possible.

These letters were signed by CAU Unit Chiefs, CAU special agents, and subordinate 

personnel, none of whom were delegated authority to sign NSLs. 

Our review found that that the FBI sometimes used these exigent letters in nonemergency circumstances. In addition, the FBI failed to ensure that there were duly 

authorized investigations to which the requests could be tied. The exigent letters 

also inaccurately represented that the FBI had already requested subpoenas for the 

information when, in fact, it had not. The FBI also failed to ensure that NSLs were 

issued promptly to the telephone companies after the exigent letters were sent. 

Rather, in many instances, after obtaining records from the telephone companies 

the FBI issued national security letters many months after the fact to ‘‘cover’’ the 

information obtained. 

As our report describes, we were not convinced by the legal justifications offered 

by the FBI during our review for the FBI’s acquisition of telephone toll billing 

records and subscriber information in response to the exigent letters without first 

issuing NSLs. The first justification offered was the need to reconcile the strict requirements of the NSL statute with the FBI’s mission to prevent terrorist attacks. 

While the FBI’s counterterrorism mission may require streamlined procedures to ensure the timely receipt of information in genuine emergencies, the FBI needs to address the problem by expediting the issuance of national security letters or by seeking legislative modification to the voluntary emergency disclosure provision in the 

Electronic Communications Privacy Act (ECPA), not through these exigent letters. 

Moreover, the FBI’s justification for the exigent letters was undercut because they 

were used in non-emergency circumstances, not followed in many instances within 

a reasonable time by the issuance of NSLs, and not catalogued in a fashion that 

would enable FBI managers or anyone else to review the practice or the predication 

required by the NSL statute. 

In sum, we concluded that the FBI’s use of these letters inappropriately circumvented the requirements of the NSL statute, and violated Attorney General 

Guidelines and FBI policies. 

As directed by the Patriot Reauthorization Act, our report also describes several 

other ‘‘noteworthy facts or circumstances’’ we identified in the review. For example, 

we found that the FBI did not provide clear guidance describing how FBI case 

agents and supervisors should apply the Attorney General Guidelines’ requirement 

to use the ‘‘least intrusive collection techniques feasible’’ during national security investigations to the use and sequencing of national security letters. In addition, we 

saw indications that some FBI lawyers in field offices were reluctant to provide an 

independent review of NSL requests because these lawyers report to senior field office managers who already had approved the underlying investigations. 

D. Recommendations 

To help the FBI address these significant findings, the OIG made a series of recommendations, including that the FBI improve its database to ensure that it captures timely, complete, and accurate data on NSLs; that the FBI take steps to ensure that it uses NSLs in full accord with the requirements of national security letter authorities; and that the FBI issue additional guidance to field offices that will 

assist in identifying possible violations arising from use of NSLs. The FBI concurred 

with all of the recommendations and agreed to implement corrective action. 

We believe that the Department and the FBI are taking the findings of the report 

seriously. In addition to concurring with all our recommendations, the FBI and the 

Department have informed us that they are taking additional steps to address the 

problems detailed in the report. For example, the FBI’s Inspection Division has initiated audits of a sample of NSLs issued by each of its 56 field offices. It is also conducting a special inspection of the exigent letters sent by the Counterterrorism Division to three telephone companies to determine how and why that occurred. 

The FBI’s Office of the General Counsel is also consolidating its guidance on 

NSLs, providing additional guidance and training to its field-based Chief Division 

Counsel on their role in approving NSLs, and working to develop a new web-based 

NSL tracking database. 

In addition to the FBI’s efforts, we have been told that the Department’s National 

Security Division will be actively engaged in oversight of the FBI’s use of NSL authorities. 

As required by the Patriot Reauthorization Act, the OIG will continue to review 

the FBI’s use of national security letters. We are required by the Act to issue another report by the end of this year on the FBI’s use of NSLs in 2006. In addition, 

we intend to monitor the actions that the FBI and the Department have taken and 

are taking to address the problems we found in our first review. 

15

II. THE OIG’S SECTION 215 REPORT

In the last section of my statement, I want to summarize briefly the OIG’s second 

report, which examined the FBI’s use of Section 215 orders to obtain business 

records. Section 215 of the Patriot Act allows the FBI to seek an order from the 

FISA Court to obtain ‘‘any tangible thing,’’ including books, records, and other 

items, from any business, organization, or entity provided the item or items are for 

an authorized investigation to protect against international terrorism or clandestine 

intelligence activities. 

Section 215 of the Patriot Act did not create new investigative authority, but instead significantly expanded existing authority found in FISA by broadening the 

types of records that could be obtained and by lowering the evidentiary threshold 

to obtain a Section 215 order for business records. Public concerns about the scope 

of this expanded Section 215 authority centered on the ability of the FBI to obtain 

library records, and many public commentators began to refer to Section 215 as the 

‘‘library provision.’’

Our review found that the FBI and the Department’s Office of Intelligence Policy 

and Review (OIPR) submitted to the FISA Court two different kinds of applications 

for Section 215 orders: ‘‘pure’’ Section 215 applications and ‘‘combination’’ Section 

215 applications. A ‘‘pure’’ Section 215 application is a term used to refer to a Section 215 application for any tangible item which is not associated with an application for any other FISA authority. A ‘‘combination’’ Section 215 application is a term 

used to refer to a Section 215 request that was added to a FISA application for pen 

register/trap and trace orders, which identify incoming and outgoing telephone numbers called on a particular line. In a combination order, the Section 215 request was 

added to the pen register/trap and trace application in order to obtain subscriber 

information related to the telephone numbers. 

We found that from 2002 through 2005 the Department, on behalf of the FBI, submitted to the FISA Court a total of 21 pure Section 215 applications and 141 combination Section 215 applications. 

We found that the first pure Section 215 order was approved by the FISA Court 

in spring 2004, more than 2 years after enactment of the Patriot Act. The FISA 

Court approved six more pure Section 215 applications that year, for a total of seven 

in 2004. The FISA Court approved 14 pure Section 215 applications in 2005. 

Examples of the types of business records that were obtained through pure Section 215 orders include driver’s license records, public accommodations records, 

apartment records, and credit card records. 

We also determined that the FBI did not obtain Section 215 orders for any library 

records from 2002 through 2005 (the time period covered by our review). The few 

applications for Section 215 orders for library records that were initiated in the FBI 

during this period were withdrawn while undergoing the review process within the 

FBI and the Department. None were submitted to the FISA Court. 

With respect to how information from Section 215 orders was used, we found no 

instance where the information obtained from a Section 215 order resulted in a 

major case development such as disruption of a terrorist plot. We also found that 

very little of the information obtained in response to Section 215 orders has been 

disseminated to intelligence agencies outside the DOJ. 

However, FBI personnel told us they believe that the kind of intelligence gathered 

from Section 215 orders is essential to national security investigations. They also 

stated that the importance of the information is sometimes not known until much 

later in an investigation, when the information is linked to some other piece of intelligence. FBI officials and Department attorneys also stated that they believe Section 

215 authority is useful because it is the only compulsory process for certain kinds 

of records that cannot be obtained through alternative means. 

We did not identify any instances involving ‘‘improper or illegal use’’ of a pure 

Section 215 order. We did find problems with two combination Section 215 orders. 

In one instance, the FBI inadvertently collected information from a telephone number that no longer belonged to the target of the investigation. In another instance, 

the FBI received information from a telephone that was no longer connected to the 

subject because of a mistake by the telephone company. 

We also found that the FBI has not used Section 215 orders as effectively as it 

could have because of legal, bureaucratic, or other impediments to obtaining these 

orders. For example, after passage of the Patriot Act in October 2001, neither the 

Department nor the FBI issued implementing procedures or guidance with respect 

to the expansion of Section 215 authority for a long period of time. In addition, we 

found significant delays within the FBI and the Department in processing requests 

for Section 215 orders. We also determined through our interviews that FBI field 

offices do not fully understand Section 215 orders or the process for obtaining them. 

16

III. CONCLUSION

In sum, our review of national security letters revealed that, in various ways, the 

FBI violated the national security letter statutes, Attorney General Guidelines, or 

FBI internal policies governing their use. While we did not find that the violations 

were deliberate, we believe the misuses were widespread and serious. 

Finally, I also want to note that the FBI and the Department cooperated fully 

with our review. In addition, the FBI and the Department agreed to declassify important aspects of the report to permit a full and fair airing of the issues we describe in the report. They have also acknowledged the problems we found and have 

not attempted to cover up the deficiencies. The FBI and the Department also appear 

to be taking the findings of the report seriously, and appear committed to correcting 

the problems we identified. 

We believe that these serious and ongoing efforts are necessary to ensure that the 

FBI’s use of national security letter authorities to obtain sensitive information is 

conducted in full accord with the NSL statutes, Attorney General Guidelines, and 

FBI policies. 

That concludes my testimony, and I would be pleased to answer any questions.

17

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Mr. CONYERS. Thank you, Attorney General. 

Will the person in the back row, standing up, please sit down or 

leave this Committee room? 

I am now pleased to welcome the General Counsel for the Federal Bureau of Investigation, Ms. Valerie Caproni. 

Welcome to our Committee. 

TESTIMONY OF VALERIE CAPRONI, GENERAL COUNSEL, 

FEDERAL BUREAU OF INVESTIGATION 

Ms. CAPRONI. Thank you. Good morning. 

Mr. Chairman, Ranking Member Smith and Members of the 

Committee, it is my pleasure to appear before you today to discuss 

the recent report by the Department of Justice Office of Inspector 

General regarding the FBI’s use of National Security Letters. I 

have submitted a detailed written statement, and in the interest of 

time, I will stress only a few points. 

The IG’s report is a fair report that acknowledges the importance 

of National Security Letters to the ability of the FBI to keep the 

country safe and the difficult environment in which our employees 

have been working since 9/11. The IG found no deliberate or intentional misuse of the National Security Letter authorities, AG guidelines or FBI policy. Nevertheless, the IG review identified several 

areas of inadequate auditing and oversight of these vital investigative tools as well as processes that were simply inappropriate. 

The FBI fully supports each of the IG’s recommendations and 

have implemented other remedial steps not proposed by the IG. 

Collectively, these reforms will ensure full compliance with both 

the letter and the spirit of the law. 

NSLs generally permit us to obtain the basic building blocks of 

an investigation from third party businesses. Unlike grand jury 

subpoenas used in criminal cases, however, National Security Letter authority comes from several distinct statutes, and they have 

very specific rules that accompany them. 

The NSL authority used most frequently by the FBI is that provided by the Electronic Communications Privacy Act, or ECPA. 

Through an ECPA NSL, the FBI can obtain subscriber information 

for telephone and electronic communications and can obtain toll 

billing information and electronic communication transaction 

records. Significantly, the FBI cannot obtain the content of communications through an ECPA NSL. That requires a court order. 

ECPA NSLs are, by far, the most common NSL that we use. 

Pursuant to the Right to Financial Privacy Act and the Fair 

Credit Reporting Act, we also have the authority to issue different 

types of National Security Letters. The authority to issue an NSL 

lies at a senior level within the FBI. It can only be issued by an 

official who ranks not lower than Special Agent in Charge or Deputy Assistant Director. All such officials are career Government 

employees, and before an NSL can be issued such employees must 

certify that the information sought is relevant to an authorized national security investigation. 

As directed by Congress in connection with the IG’s report, we 

endeavor to declassify as much information as possible in order to 

maximize the transparency of our use of this important national security tool. To that end, for the first time the public has a real 

216

sense of the frequency with which the FBI uses National Security 

Letters. In the period covered by the report, the number of NSL requests—that is, not letters. Remember that one letter can have 

multiple requests—has ranged from approximately 40,000 to 

60,000 per year, and we have requested information on fewer than 

20,000 persons per year. For a variety of reasons that will be discussed below, those numbers are not exact. Nevertheless, for the 

first time, the public can get a sense of the order of magnitude of 

these requests. 

There are three findings by the IG that were particularly disturbing to me, and it is those three findings that I wish to address 

at some length this morning: First, inaccurate reporting to Congress, second, the use of so-called Exigent Letters and, third, violations of law and policy with respect to the usage of NSLs. 

I am particularly distressed by the fact that the IG found significant inaccuracies in the numbers that we report to Congress. The 

responsibility to gather the data for congressional reporting lies 

with my division, and we did not do an acceptable job. The processes we put in place for tabulating NSLs were inadequate, and we 

had no auditing process in place to catch errors. Although we realized we had a problem prior to the IG’s report and were working 

on a technological solution, that realization came later than it 

should have, and for that I bear responsibility. 

At some point several years before I arrived at the FBI, our process for congressional reporting shifted from a totally manual process to a stand-alone database. While the OGC database was a giant 

technological step forward from 3x5 index cards, it quickly became 

an unacceptable system given the increase in our use of National 

Security Letters since 9/11. The OGC database is not electronically 

connected to ACS, the system from which we derive the data. Instead, there is a manual interface between ACS and the database. 

An OGC employee is responsible for taking every NSL lead that is 

sent to OGC and manually entering the information into our database. Nearly a dozen fields must be manually entered, including 

the file number of the case in which the NSL was issued, which 

is typically at least 15 digits and letters. Needless to say, human 

error creeps in. 

Approximately a year ago when we were unable to tick and tie 

numbers in the database to previously reported numbers, we recognized that our technology was woefully inadequate. We began at 

that point to develop an automated system to improve our ability 

to collect this data. That system, in addition to improving data collection, will automatically prevent many of the errors in NSLs that 

we will discuss today by automating much of the work associated 

with preparing NSLs. The system will also allow us to automatically ensure that required reporting data is accurately collected. 

The NSL system is being designed so that the FBI employee requesting an NSL will enter data only once. 

For example, an agent or an analyst who wishes to get telephone 

toll billing records will only have to tell the system that he is seeking an ECPA NSL for toll records and type the telephone number 

once. The system will then automatically populate the appropriate 

fields in the NSL in the authorizing electronic communication. The 

system will ensure that the two documents match exactly, and it 

217

will minimize the opportunity for transcription errors that gave 

rise to unauthorized collections. 

Agents and analysts will still be required to provide the narrative necessary to explain why the NSL is being sought, the factual basis for making the determination that the information is relevant to an appropriately predicated national security investigation 

and the factual basis for any determination that the NSL should 

include a nondisclosure provision. 

We are optimistic that we will be able to pilot the system this 

summer and roll it out to all of the field offices by the end of the 

year. At that point, I will be much more confident that in the future the data we provide to Congress is as accurate as humanly 

possible. In the meantime, we are taking several steps to correct 

the numbers we have previously reported. We have discussed our 

methodology with the IG, and we will offer him the opportunity to 

review our work. We are striving to have the corrected reports to 

Congress as soon as possible. 

The next significant finding of the IG I would like to discuss this 

morning involves the use within one unit at headquarters of socalled Exigent Letters. These letters, which numbered in excess of 

700, were provided to telephone companies with requests for toll 

billing information. All of the letters stated that there were exigent 

circumstances, and many stated the Federal grand jury subpoenas 

had been requested for the records even though in fact no such requests for grand jury subpoenas had been made. 

From an audit and an internal control perspective, the FBI did 

not document the nature of the emergency circumstances, did not 

keep copies of all of the Exigent Letters it provided to the telephone companies and did not keep records to track whether it had 

subsequently provided further legal process. Moreover, some employees told the IG that there was not always an emergency relating to the documents that were sought. 

OGC has been working with the affected unit to attempt to reconcile the documentation and to ensure that any telephone record 

that we have in an FBI database was obtained because it was relevant to an authorized investigation and that the appropriate legal 

process has now been provided. If we are unable to determine the 

investigation to which a number relates, it will be removed from 

our database, and the records will be destroyed. 

The IG rightfully objected to the FBI’s obtaining telephone 

records with a letter that stated that a Federal grand jury subpoena had been requested when that was untrue. It is unclear why 

that happened. The Director has ordered a special inspection in 

order to better understand the full scope of internal control failures 

and to make sure that, in fact, every record obtained pursuant to 

a so-called Exigent Letter has been appropriately connected to a 

national security investigation. That review will also determine 

whether the practice discussed by the IG existed anywhere other 

than in the headquarters unit identified in the report. 

In response to the obvious internal control lapses this situation 

highlights, changes have already been made to ensure that this situation does not recur. Any agent who needs to obtain ECPA-protected records on an emergency basis must do so pursuant to 18 

USC, section 2702. Section 2702 permits a carrier to provide inforVerDate 0ct 09 2002 15:28 Aug 01, 2007 Jkt 000000 PO 00000 Frm 00221 Fmt 6633 Sfmt 6601 H:\WORK\FULL\032007\34175.000 HJUD1 PsN: 34175
218

mation regarding its customers to the Government if the provider 

believes in good faith that there is a life or death type emergency 

that requires disclosure of the records. By FBI policy, a request for 

disclosure pursuant to that provision generally must be in writing 

and must clearly state that the disclosure without legal process is 

at the provider’s option. The emergency must also be documented 

to our files so that the use of the letter can be audited. The policy 

allows for oral requests, but any oral requests have to be approved 

and documented to the file. 

The IG also examined the misuse of NSLs that had been reported and some that had not as part of the IOB process. As this 

Committee knows, pursuant to executive order, the President has 

an Intelligence Oversight Board that receives from the intelligence 

community the reports of intelligence activities that the agency believes may have been unlawful or contrary to executive order or 

presidential directive. 

The IG found that from 2003 to 2005 the FBI had self-reported 

26 potential violations involving NSL authorities. The IG also 

found, however, a number of potential IOBs in the files it examined 

that had not been reported to OGC for adjudication. Although press 

accounts of this report have implied that the IG found massive 

abuses of the NSL authorities, a careful read of the report does not 

bear out the headlines. The IG examined 293 NSLs, a reasonably 

small, non-random sample. We do not suggest that the sample was 

not a fair sample but only point out that it is questionable from a 

statistical standpoint to attempt to extrapolate from a very small 

sample to an entire population. 

Of the 293 NSLs the IG examined, 22 were judged to have a potential unreported violation associated with them. Of that 7 percent, 10, or almost 50 percent of that group, were third party errors. That is, the NSL recipient provided the FBI with information 

that we did not seek. Only 12 of the NSLs examined, or 4 percent 

of the total group, had mistakes that the IG rightfully attributes 

to the FBI. 

Examining the 12 potential errors that were attributable to the 

FBI reveals a continuum of seriousness relative to the potential impact of individual rights. Four of them, or just over 1 percent of the 

sample, were unquestionably serious violations. Specifically, two of 

the violations involved obtaining full credit reports and counterintelligence investigations, which is not statutorily authorized. One 

involved issuing a National Security Letter when the authorization 

for the investigation to which it related had lapsed, and one involved issuing an NSL for information that was arguably content 

and, therefore, not available pursuant to NSL. The remaining eight 

potential errors involved lack of attention to detail and did not involve the FBI’s seeking or obtaining any information to which it 

was not entitled. 

We do not excuse lack of attention to detail, and I have admonished the lawyers in the field who review NSLs that they must be 

careful so that they can avoid this sort of error, but we do believe 

that such mistakes pose different challenges and risks than seeking 

information to which you are not entitled. 

In short, approximately 1 percent of the NSLs examined by the 

IG had significant errors that were attributable to FBI actions and 

219

that had not been but should have been reported as potential IOB 

violations. A 1-percent error rate is not acceptable, and we have 

taken steps to reduce it. Those steps are discussed at length in my 

written testimony, and I will not repeat them here. 

But among the steps I do want to mention is that the Director 

has ordered a special inspection of all field offices’ use of National 

Security Letters, an inspection that began on Friday. We offer to 

fully brief the Committee on the results of that inspection when it 

is complete. Several of the actions we are taking involve changes 

to FBI rules and policy. Rules will, of course, only eliminate errors 

if they are followed. The IG’s report has painfully demonstrated for 

us that, while we are good at establishing policy and setting rules, 

we are not as good as we must be at establishing internal controls 

and auditing functions to make sure that the rules are followed. 

The full parameters of an FBI compliance program have not been 

set, and the inspection that is currently underway will clearly influence the parameters of the program. In short order, however, the 

FBI will establish a vigorous, multidisciplinary compliance program that assures as well as any compliance program can that our 

employees faithfully adhere to all of our rules and policies, particularly those that are designed to protect privacy and civil liberties. 

The FBI is acutely aware that the only way we can achieve our 

mission of keeping the country safe is if we are trusted by all segments of the American public. With events like the London terror 

attack of 2 years ago, we are all worried about the risk of a catastrophic attack from homegrown terrorists. Our single best defense 

against such an attack is the eyes and ears of all Americans, but 

particularly in those segments of the population in which the risk 

of radicalization is at its highest. We need people in those communities to call us when they hear or see something that looks amiss. 

We know that we reduce the probability of that call immeasurably 

if we lose the confidence of any part of the American public. 

Mr. CONYERS. Counsel, can you wind down at this point? 

Ms. CAPRONI. Yes, sir. 

We will put into place a compliance program to maximize the 

probability that we do not lose the confidence of the American public by dint of the sort of errors highlighted in this report. 

I appreciate the opportunity to appear before the Committee and 

look forward to answering your questions. 

Thank you. 

[The prepared statement of Ms. Caproni follows:]

PREPARED STATEMENT OF VALERIE CAPRONI

Good morning Mr. Chairman, Ranking Member Smith, and Members of the Committee. It is my pleasure to appear before you today to discuss the recent report by 

Department of Justice’s Office of the Inspector General (OIG) regarding the FBI’s 

use of national security letters (NSLs). The OIG’s report is a fair report that acknowledges the importance of NSLs to the ability of the FBI to conduct the national 

security investigations that are essential to keeping the country safe. Importantly, 

the OIG found no deliberate or intentional misuse of the national security letter authorities, Attorney General Guidelines or FBI policy. Nevertheless, the OIG review 

identified several areas of inadequate auditing and oversight of these vital investigative tools, as well as processes that were inappropriate. Although not intentionally, we fell short in our obligations to report to Congress on the frequency with 

which we use this tool and in the internal controls we put into place to make sure 

that it was used only in accord with the letter of the law. Director Mueller concluded from the OIG’s findings that we must redouble our efforts to ensure that 

220

there is no repetition of the mistakes of the past in the use of these authorities and 

I share his commitment. I would also like to acknowledge the role of Congress and 

the effectiveness of congressional oversight in surfacing the deficiencies raised in 

this audit, which was called for in the USA PATRIOT Improvement and Reauthorization Act. The report made ten recommendations in response to the findings, designed to provide both the necessary controls over the issuance of NSLs and the creation and maintenance of accurate records. The FBI fully supports each recommendation and concurs with the Inspector General that, when implemented, 

these reforms will ensure full compliance with both the letter and the spirit of the 

authorities entrusted to the Bureau. 

NATIONAL SECURITY LETTERS

National Security Letters generally permit us to obtain the same sort of documents from third party businesses that prosecutors and agents obtain in criminal 

investigations with grand jury subpoenas. Unlike grand jury subpoenas, however, 

NSL authority comes through several distinct statutes and they have specific rules 

that accompany them. NSLs have been instrumental in breaking up cells like the 

‘‘Portland Seven,’’ the ‘‘Lackawanna Six,’’ and the ‘‘Northern Virginia Jihad.’’ 

Through the use of NSLs, the FBI has traced sources of terrorist funding, established telephone linkages that resulted in further investigation and arrests, and arrested suspicious associates with deadly weapons and explosives. NSLs allow the 

FBI to link terrorists together financially, and pinpoint cells and operatives by following the money. 

The NSL authority used most frequently by the FBI is that provided by the Electronic Communications Privacy Act (ECPA). Through an ECPA NSL, the FBI can 

obtain subscriber information for telephones and electronic communications and can 

obtain toll billing information and electronic communication transaction records. 

Significantly, the FBI cannot obtain the content of communications through an 

ECPA NSL. Although the exact numbers of ECPA NSLs remains classified, it is the 

most common NSL authority used. 

Pursuant to the Right to Financial Privacy Act (RFPA), the FBI also has the authority to issue NSLs for financial records from a financial institution. RFPA NSLs 

are used commonly in connection with investigations of potential terror financing. 

Pursuant to the Fair Credit Reporting Act, the FBI has the authority to issue 

three different, but related, types of NSLs to credit reporting agencies: an NSL pursuant to 15 U.S.C. 1681u(a) for the names of financial institutions with which the 

subject has or has had an account; an NSL pursuant to 15 U.S.C. 1681u(b) for consumer identifying information (name, address, former addresses, employment and 

former employment); an NSL pursuant to 15 U.S.C. 1681v for a full credit report. 

Of all the FBI’s NSL authorities, only the last of the FCRA authorities is restricted 

to use only in international terrorism cases. 

Finally, the FBI has the authority to issue NSLs pursuant to the National Security Act in the course of investigations of improper disclosure of classified information by government employees. 

For the first 3 types of NSLs (ECPA, RFPA, FCRA) the NSL must include a certification by an authorized FBI employee that the material is being sought for an 

authorized national security investigation. That certification is slightly different in 

the case of a FCRA NSL for a full credit report, where the certification required is 

that the information is relevant to an international terrorism investigation. 

The authority to issue an NSL lies at a senior level within the FBI. An NSL can 

be issued only by an official who ranks not lower than Special Agent in Charge or 

Deputy Assistant Director. All such officials are career government employees who 

are members of the Senior Executive Service. Procedurally, an agent or analyst 

seeking an NSL must prepare a document (an electronic communication or EC) in 

which the employee lays out the factual predicate for the request. The factual recitation must be sufficiently detailed so that the approving official can determine that 

the material sought is relevant to an investigation. Additionally, it needs to provide 

sufficient information concerning the underlying investigation so that reviewing officials can confirm that the investigation is adequately predicated and not based solely on the exercise of First Amendment rights. Finally, the EC includes a ‘‘lead’’ to 

the Office of the General Counsel (OGC) for purposes of Congressional reporting. 

OIG REPORT

As directed by Congress, we endeavored to declassify as much information as possible concerning our use of NSLs in order to allow the maximum amount of public 

awareness of the extent of our use of the NSL tool consistent with national security 

concerns. To that end, for the first time the public has a sense of the frequency with 

221

which the FBI makes requests for data with national security letters. In the period 

covered by the report, the number of NSL requests has ranged from approximately 

40,000 to 60,000 per year and we have requested information on less than 20,000 

persons per year. For a variety of reasons that will be discussed below, those numbers are not exact. Nevertheless, they, for the first time, allow the public to get 

some sense of the order of magnitude of these requests; there are a substantial 

number of requests, but we are not collecting information on hundreds of thousands 

of Americans. 

There are three findings by the OIG that are particularly disturbing, and it is 

those three findings that I wish to address this morning: (1) inaccurate reporting 

to Congress of various data points we are obligated to report relative to NSLs; (2) 

the use of so-called exigent letters that circumvented the procedures required by 

ECPA; and (3) known violations (both previously self-reported by FBI and not previously reported) of law and policy with regard to usage of NSLs. 

CONGRESSIONAL REPORTING

A finding of the report that particularly distresses me is the section that addresses the inaccuracies of the numbers we report to Congress. That responsibility lies 

with my division, and we did not do an acceptable job. The process for tabulating 

NSLs simply did not keep up with the volume. Although we came to that realization 

prior to the OIG report and are working on a technological solution, that realization 

came later than it should have. 

At some point several years before my tenure at the FBI began, our process for 

tracking NSLs for Congressional reporting purposes shifted from a totally manual 

process, where NSL data was written on index cards, to a standalone Access database. This database is referred to in the OIG report as the OGC database. While 

the OGC database was a giant technological step forward from 3 x 5 index cards, 

it is not an acceptable system given the significant increase in use of NSLs since 

9/11. First and foremost, the OGC database is not electronically connected to ACS, 

the system from which we derive the data. Instead, there is a manual interface between ACS and the OGC database. An OGC employee is responsible for taking 

every NSL lead that is sent to OGC and manually entering the pertinent information into the OGC database. Nearly a dozen fields must be manually entered, including the file number of the case in which the NSL was issued (typically 15 digits 

and alphanumeric identifiers). 

Approximately a year ago we recognized that our technology was inadequate and 

began developing an automated system to improve our ability to collect this data. 

The system, in addition to improving data collection, will automatically prevent 

many of the errors in NSLs that we will discuss today. We are building an NSL 

system to function as a workflow tool that will automate much of the work that is 

associated with preparing NSLs and the associated paperwork. The NSL system is 

designed to require the user to enter certain data before the workflow can proceed 

and requires specific reviews and approvals before the request for the NSL can proceed. Through this process, the FBI can automatically ensure that certain legal and 

administrative requirements are met and that required reporting data is accurately 

collected. For example, by requiring the user to identify the investigative file from 

which the NSL is to be issued, the system will be able to verify the status of that 

file to ensure that it is still open and current (e.g. request date is within six months 

of the opening or an extension has been filed for the investigation) and ensure that 

NSLs are not being requested out of control or administrative files. The system will 

require the user to separately identify the target of the investigative file and the 

person whose records are being obtained through the requested NSL, if different. 

This will allow the FBI to accurately count the number of different persons about 

whom we gather data through NSLs. The system will also require that specific data 

elements be entered before the process can continue, such as requiring that the target’s status as a United States Person or non-United States Person be entered. The 

system will not permit requests containing logically inconsistent answers to proceed. 

The NSL system is being designed so that the FBI employee requesting an NSL 

will enter data only once. For example, an agent or analyst who wishes to get telephone toll billing records will only have to prompt the system that he is seeking 

an ECPA NSL for toll records and type the telephone number once. The system will 

then automatically populate the appropriate fields in the NSL and the authorizing 

EC. The system will then generate both the NSL and the authorizing EC for signature, thereby ensuring that the two documents match exactly and minimizing the 

opportunity for transcription errors that give rise to unauthorized collections that 

must be reported to the Intelligence Oversight Board (IOB). Agents and analysts 

will still be required to provide the narrative necessary to explain why the NSL is 

222

being sought, the factual basis for making a determination that the information is 

relevant to an appropriately predicated national security investigation, and the factual basis for a determination whether the NSL should include a non-disclosure provision. In addition, this system will have a comprehensive reporting capability. 

We began working with developers on the NSL system in February 2006 and we 

are optimistic that we will be able to pilot it this summer and roll it out to all field 

offices by the end of the year. At that point, I will be confident the data we provide 

to Congress in future reports is as accurate as humanly possible. 

In the meantime, we are taking several steps to correct the numbers we have previously reported. First, we are making data corrections in our database. Through 

a computer program, we have identified all entries that must be erroneous because 

there is an apparent error in the entry (e.g., there are more NSLs reported than 

requests; the date shows a year that is impossible (203)). We are manually reviewing those entries and making corrections. We have also started a random sampling 

of ten percent of the total entries in the OGC database which contains approximately 64,000 entries. Those entries will be manually checked against ACS. We will 

determine whether there is a significant difference between the entries in our database and the actual information in ACS. To the extent there is a difference, that 

will be the factor that will be used to correct our prior reporting. While not yielding 

an exact count, we believe that to be a statistically appropriate way of correcting 

prior reporting. We have discussed this methodology with the OIG and will offer it 

the opportunity to review our work. We are striving to have corrected reports to 

Congress as soon as possible. 

As with the other shortcomings identified by the OIG, there was no finding of an 

intent to deceive Congress concerning our use of NSLs. In fact, as noted, we identified deficiencies in our system for generating data prior to the initiation of the OIG’s 

review and flagged the issue for Congress almost one year ago. While we do not 

know the extent of the inaccuracies in past reporting, we are confident that the 

numbers will not change by an order of magnitude. 

EXIGENT LETTERS

The next significant finding of the OIG involved the use within one unit at Headquarters of so-called ‘‘exigent letters.’’ These letters, which numbered in excess of 

700, were provided to telephone companies with requests for toll billing information 

regarding telephone numbers. All of the letters stated that there were exigent circumstances. Many of the letters stated that federal grand jury subpoenas had been 

requested for the records even though in fact no such request for grand jury subpoenas had been made, while others promised future national security letters. From 

an audit and internal control perspective, the FBI did not document the nature of 

the emergency circumstances that led it to ask for toll records in advance of proper 

legal process, did not keep copies of all of the exigent letters it provided to the telephone companies, and did not keep records showing that it had subsequently provided either the legal process promised or any other legal process. Further, based 

on interviews the OIG conducted, some employees indicated that there was not always any emergency relating to the documents that were sought. 

OGC has been working with the affected unit to attempt to reconcile the documentation and to ensure that any telephone record we have in an FBI database was 

obtained because it was relevant to an authorized investigation and that appropriate legal process has now been provided. As of late last week, there were still 

a small handful of telephone numbers that had not been satisfactorily tied to an authorized investigation. If we are unable to determine the investigation to which 

those telephone numbers relate, they will be removed from our database and destroyed. 

The OIG rightfully objected to the FBI obtaining telephone records by providing 

a telephone carrier with a letter that states that a federal grand jury subpoena had 

been requested when that was untrue. It is unclear at this point why that happened. The Director has ordered a special inspection in order to better understand 

the full scope of internal control lapses. 

We also concur with the OIG that it is inappropriate to obtain records on the 

basis of a purported emergency if, in fact, there is no emergency. We continue to 

believe, however, that providers had the right to rely on our representation that 

there was an emergency and that the ‘‘exigent letters’’—had they been issued only 

when there was an exigent circumstance and had they correctly identified the legal 

process that would follow—would have been an appropriate tool to use. 

In response to the obvious internal control lapses this situation highlights, 

changes have already been made to ensure that this situation does not recur. Any 

agent who needs to obtain ECPA-protected records on an emergency basis must now 

223

do so pursuant to 18 U.S.C. 2702. Section 2702(c)(4) permits a carrier to provide 

information regarding its customers to the government 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. A request for disclosure pursuant to that statute generally must be in writing 

and must clearly state that the disclosure without legal process is at the provider’s 

option. The letter request must also set out the basic facts of the emergency so that 

the provider can make some assessment whether it concurs that there is an emergency. 

INTELLIGENCE OVERSIGHT BOARD PROCESS

The OIG also examined misuse of NSLs that had been reported (and some that 

had not been reported) as part of the IOB process. As this committee knows, pursuant to Executive Order 12863 the President has an Intelligence Oversight Board 

that receives from the agencies in the intelligence community reports of intelligence 

activities that the agency believes may have been unlawful or contrary to Executive 

Order or Presidential Directive. This language is interpreted by the FBI and DOJ 

to mandate the reporting of any violation of a provision of the Attorney General’s 

Guidelines for FBI National Security Investigations and Foreign Intelligence Collection if such provision is designed to ensure the protection of individual rights. 

The FBI requires its employees to report any violations of law or policy about 

which they are aware. We encourage employees to err on the side of reporting so 

that we can be sure that all violations are appropriately reported. In terms of process, all potential violations (called PIOBs—or potential intelligence oversight board 

violations) are reported to OGC. Lawyers within OGC are responsible for ‘‘adjudicating’’ the violation—that is, determining whether the PIOB is an actual Intelligence Oversight Board violation. If it is, a report is made to the IOB, a copy is 

provided to DOJ and a copy is provided to the FBI’s Inspection Division. If the violation involved intentional misconduct, the Inspection Division will determine whether 

the matter should be referred to the Office of Professional Responsibility for discipline. 

The OIG found that from 2003 through 2005, the FBI had self-reported 26 potential violations involving NSL authorities. Of the 26, OGC adjudicated 19 to be violations and reported them. The OIG agreed with each of those determinations. Of the 

7 PIOBs that OGC determined were not violations, the OIG agreed with all but one. 

As to the one determination about which we disagreed, upon re-review, the FBI concurred with the OIG that it was a violation that should have been reported and it 

has since been reported to the IOB. These 20 violations included: third party errors 

(4), NSLs issued when the authority for the investigation had lapsed (3), obtaining 

ECPA-protected records without any legal process (3) and obtaining a full credit report in a counterintelligence case (1). 

The OIG also found, however, a number of potential IOBs in the files it examined 

that had not been reported to OGC for adjudication. Although press accounts of the 

reports have implied that the OIG found massive abuses of the NSL authorities by 

the FBI, a careful read of the report reflects a different set of facts. The OIG examined 293 NSLs—a reasonably small sample. The sample was a judgmental sample 

and the size was chosen because the audit was extremely labor intensive. We do 

not suggest that the sample was not a fair sample (although it was not random), 

but only that it is questionable from a statistical standpoint to attempt to extrapolate from a very small sample to an entire population. Moreover, there was wide 

variation in the number of purported unreported violations from different field offices. The OIG found 8 potential violations that were unreported in files in both the 

Philadelphia and Chicago field offices, but only 2 unreported potential violations 

from files in New York and 4 from San Francisco. We are doing additional followup work, but the wide variance between field offices may be a function of the very 

small sample, or it may indicate that the percentages of potential errors detected 

are not constant across all field offices. 

Setting aside questions about whether the sample is representative, I urge you 

to look closely at the numbers before arriving at the conclusion that there is a systemic problem concerning the use of NSLs. Of the 293 NSLs the OIG examined, 22 

(7%) were judged to have potential unreported IOB violations associated with them. 

Moreover, of that 7%, 10—or almost 50%—were third party errors—that is, the NSL 

recipient provided the FBI information we did not seek. Only 12 of the NSLs examined—4%—had mistakes that the OIG rightfully attributes to the FBI. 

Examining the 12 potential errors that were rightfully attributed to the FBI reveals a continuum of seriousness relative to the potential impact on individual 

rights. Four (or just over 1% of the sample) were serious violations. Specifically, two 

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of the violations involved obtaining full credit reports in counterintelligence investigations (which is not statutorily authorized), one involved issuing an NSL when 

authorization for the investigation to which it related had lapsed, and one involved 

issuing an NSL for information that was arguably content, and therefore not available pursuant to an NSL. (In the latter case, the ISP on which the NSL was served 

declined to produce the requested material so there was, in fact, no collection of information to which we were not entitled.) The balance of the 12 potential violations 

identified by the OIG do not, in our view, rise to the same level of seriousness as 

those 4. The remaining 8 involve errors that are best characterized as arising from 

a lack of attention to detail, and did not result in the FBI seeking or obtaining any 

information to which it was not entitled. Those 8 potential violations involved errors 

such as using the wrong certification language in an NSL (although the appropriate 

certification is not materially different) and having the NSL and the EC seeking the 

NSL not entirely consistent. We do not excuse such lack of attention to detail, but 

we do not believe that such mistakes result in or cause a risk to civil liberties. 

In short, approximately 1% of the NSLs examined by the OIG had significant errors that were attributable to FBI actions and that had not been, but should have 

been, reported as PIOBs. 

While a 1% error rate is not huge, it is unacceptable, and we have taken steps 

to reduce that error rate. First, we are very concerned that of all the potential IOBs 

involving mistakes in NSLs attributable to the FBI (whether previously reported or 

not), 3 involved the same mistake: namely, issuing an NSL for a full credit report 

in a counterintelligence investigation. In order to ensure that this particular error 

is fully rectified, the FBI ordered all field offices to examine all counterintelligence 

files in which Fair Credit Report NSLs have been issued since January 1, 2002 in 

order to ascertain whether the file contains a full credit report. If it does, the credit 

report must be removed from the file, sequestered with the field office’s attorney, 

and a PIOB must be reported to OGC. The results from that search are due to headquarters by April 16, 2007. 

Several other steps we have taken will, we believe reduce the likelihood that the 

FBI will commit the other mistakes in the future. First, as indicated previously, the 

FBI is developing an automated system to prepare NSLs and their authorizing ECs. 

That system will reduce to zero mistakes such as having the wrong certification language or inconsistency between the NSL and the EC. It will also ensure that the 

investigative file out of which the NSL is being issued is open. Finally, it will ensure 

that an NSL for a full credit report cannot be issued out of a counterintelligence 

file. 

Other changes to FBI policy have been made that we believe will facilitate better 

handling of IOBs and also reduce errors that lead to IOBs. First, last fall we provided comprehensive advice to the field regarding its responsibility towards information obtained as a result of third party errors. That guidance requires all such information to be sequestered and reported to OGC as a PIOB. If the ‘‘over collected’’ 

information is irrelevant to the investigation (e.g., the telephone company transposed a number and provided us records on the wrong telephone account), then it 

will be destroyed or returned. No such information should be entered into FBI databases. If the information is relevant to the investigation but simply not within the 

four corners of the NSL, then the information must be sequestered until a new NSL 

has been issued for the extra data. After the new NSL has been issued, the information can be entered into FBI databases. 

Secondly, we have collected all the rules and policies on NSLs into one document 

which will be disseminated to the field. Those rules now mandate that, until the 

deployment of the automated NSL system, all NSLs and ECs be prepared from the 

exemplars that are provided on OGC’s website. That should eliminate many of the 

mistakes identified by the OIG. 

All of these rules will, of course, only reduce or eliminate errors if they are followed. The OIG’s report has highlighted for us that there must be some sort of auditing function—above and beyond the IOB process—to systematically ensure that 

these rules, as well as others that govern our activities in national security investigations are followed. The FBI has historically been very good at establishing policy 

and setting rules, but we have not been as proactive as we should have been in establishing internal controls and auditing functions. 

The full parameters of the compliance program have not been set, although these 

aspects have been: the Inspection Division with participation of DOJ’s National Security Division and Privacy and Civil Liberties Office is in the process of a special 

inspection of NSL usage in all 56 field offices and headquarters. That inspection 

should uncover any other significant problems with our use of this tool but should 

also tell us whether there are variances between offices in terms of the numbers 

and types of errors. The results of the inspection will then inform the program that 

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the Attorney General announced of having teams of DOJ lawyers, FBI lawyers and 

the Inspection Division periodically audit field offices’ use of NSLs. That process will 

begin in April and should result in at least 15 offices being audited this year. We 

are also considering other proactive compliance programs in order to develop a program that ensures, to the maximum extent possible, that the rules and policies designed to protect privacy and civil liberties are faithfully adhered to by all of our 

employees, that we promptly identify and correct any violations of law or policy, and 

that any information collected erroneously is removed from FBI databases and destroyed. In addition, a working group co-chaired by the Office of the Director of National Intelligence and the CPCLO has been convened to examine how NSL-derived 

information is used and retained by the FBI. The FBI and DOJ’s National Security 

Division will have a representative on this working group. We welcome the Committee’s input as we move forward on these initiatives. 

The FBI is acutely aware that the only way that we can achieve our mission of 

keeping the country safe is if we are trusted by all segments of the American public. 

With events like the London terror attacks of 2 years ago and the Canadian plot 

to use fertilizer bombs to destroy buildings in Canada in 2006, we have all become 

worried about the risk of a catastrophic attack from home grown terrorists. Our single best defense against such an attack is the eyes and ears of all Americans—but 

particularly of those segments of the population in which the risk of radicalization 

is at its highest. We need people in those communities to call us when they hear 

or see something that looks amiss. We know that we reduce the probability of that 

call immeasurably if we lose the confidence of those segments of the population. 

That is one of the reasons that we are looking for ways to assure all Americans that 

we are respectful of individual rights, including privacy rights, and that we use the 

tools that have been provided to us consistent with the rules set out by Congress. 

I appreciate the opportunity to appear before the Committee and look forward to 

answering your questions.

Mr. CONYERS. Well, General Counsel Caproni, I want to thank 

you for your candor and forthcomingness in coming before us today, 

and we will include the rest of your testimony, of course. 

Now let me begin the questioning, and I thank both the witnesses. 

Inspector General Fine, I am curious as to how you have come 

to the conclusion that these errors that have been reported and 

that bring us to this chamber were sloppy—the results of sloppy 

bookkeeping, recordkeeping or compliance with the law, but none 

of it was intentional. 

How could that be if they have known about these excesses since 

the year 2004, and their Communications Analysis Unit warned 

them about it in early 2005, and we have something like at least 

over 700 Exigent Letters and somewhere in the neighborhood of 

40,000 to 50,000 NSL letters for 3 years? 

Mr. FINE. Let me separate some of those issues. 

I do not believe that they intended to go out and to obtain information that they knew they could not obtain and said, ‘‘We are 

going to do it anyway.’’

I think what they did was complete carelessness; they did not follow the rules, did not follow appropriate procedures, and obtained 

information that they could have obtained properly but by taking 

shortcuts. Now, we did not do a review to ask everybody what was 

in their minds and what exactly they did, but we saw instances 

where people just simply did not follow the rules and did not take 

appropriate action. 

Mr. CONYERS. But they were being warned. This did not just 

come up recently. This goes back to 2004. 

Mr. FINE. In 2004, it is correct that attorneys in the Office of 

General Counsel had concerns about the Exigent Letters and were 

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not saying ‘‘stop it,’’ but were saying ‘‘we need to take different 

measures to issue these letters.’’

Mr. CONYERS. Do you think that the law was so complicated that 

people in good faith just could not figure out what it was we were 

requiring? 

Mr. FINE. I think what they did was inappropriately take a 

model from another context and apply it to this context, which was 

wrong—it clearly was—and that they did not think carefully, and 

they did not take appropriate actions. Now, I know that the FBI 

is conducting a special inspection to look at exactly what everybody 

knew and when they knew it and why they took the actions that 

they did. We did not do that kind of review. We did not ask everybody up and down the line, and it is possible that people had motivations that were not appropriate. 

Mr. CONYERS. But there is no way we can tell. There is no way 

I can tell, but there is no way you can tell either. 

Mr. FINE. It is true that we did not do a performance review of 

every individual, so I think that is an appropriate point, Mr. Chairman—I really do—and I do think it is incumbent upon the FBI to 

go back and look and see exactly what people were doing, at what 

stages, and why they did, what they did and take appropriate action to hold people accountable. 

Mr. CONYERS. Now, do you make a distinction between the National Security Letters and the Exigent Letters in terms of the severity of the offense that brings us here today? 

Mr. FINE. I think I do. I think the Exigent Letters were the most 

troubling aspect of this. 

Mr. CONYERS. And why is that? 

Mr. FINE. Because there is a process in the law to allow voluntary disclosures from these telephone companies if there is a 

true emergency, and we believe the FBI should have followed that 

voluntary process. Instead, they went with these Exigent Letters, 

which they used in a different context, and applied it to this context which, in our view, was inappropriate. 

With regard to the National Security Letters, there were many 

of them, and many of them did comply with the requirements of 

the law. We saw, and we tried to do a review to see how many did 

not. We found a significant number did not, but with regard to the 

Exigent Letters as a whole, that whole practice was very troubling 

to us in and of itself. 

Mr. CONYERS. Now, are you satisfied with the steps that have 

been described here today by the General Counsel in terms of how 

we clean this mess up? 

Mr. FINE. Well, we have been briefed by the Department and the 

FBI about the steps they are taking. I think they are taking this 

seriously, but I am not in a position right now to say, ‘‘I am completely satisfied. I trust all this.’’ We need to see what happens 

with these steps, see whether there are concerted efforts over time, 

to see whether they really are adequately implemented. So I cannot 

say right now that they have done all they can, but I think they 

are taking important steps and taking this very seriously. 

Mr. CONYERS. I thank you so much. 

I recognize Lamar Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

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Mr. Chairman, I am hoping my first question will not count 

against my time. 

Mr. Fine, I noticed, in reading your bio that when you were a 

senior in college and co-captain of the basketball team you were recruited by the San Antonio Spurs. They happen to be my hometown team. My question is this: Don’t you regret not playing for the 

Spurs rather than becoming a Rhodes scholar and graduating from 

Harvard Law School? 

Mr. CONYERS. The gentleman’s time has expired. 

Mr. FINE. Congressman, I was drafted in the 10th round by the 

San Antonio Spurs, and if I were maybe a little taller than 5′9′′, I might have had a chance to play. So I do not really regret that 

my future was in the law rather than in professional basketball. 

But I tell people who do not believe I actually played basketball 

when they see me at 5′9′′ that before I started this job as the IG 

I was 6′9′′. Mr. SMITH. A very good answer. 

Mr. Fine and Ms. Caproni, let me address a more serious question to both of you, and it is this. We have unearthed these problems that are recognized and that are being dealt with, and some 

of the reasons for those problems have already been seen, and the 

practice has been discontinued, but my question is this: 

Do you all feel that the problem is with how the law was enforced rather than with the law itself? In other words, if the law 

were carried out as intended, doesn’t that solve our problem? Mr. 

Fine first. 

Mr. FINE. Congressman, I am really not in a position to say what 

the law should be or if there should be modifications to the law. 

What my job is is to look at the law and to look at the application of the law and to see the problems that occurred. I do believe 

that if the FBI had assiduously and carefully applied the law, we 

would not have seen as many problems as we have, and it really 

was unacceptable and inexcusable what happened here. 

Mr. SMITH. Ms. Caproni. 

Ms. CAPRONI. From our perspective, the problem is not with the 

law, although I would note that unlike other areas that our agents, 

where they get these sorts of records, there are very specific rules, 

and they have to win through those rules. That, in my sense, is our 

responsibility as the lawyers to make sure that the agents understand what they can do and what they cannot do. 

Again, there is no doubt that the problem with the National Security Letters was a colossal failure on our part to have adequate 

internal controls and compliance programs in place. The laws, 

themselves, provide us with a needed tool, and it is a tool that we 

should use responsibly. 

Mr. SMITH. Okay. Thank you. 

Mr. Fine and Ms. Caproni, why are National Security Letters important in our investigation of terrorism? 

Ms. CAPRONI. They are critical. National Security Letters provide 

us the basic building blocks that we need to build an investigation. 

For those of you who had prior criminal AUSA experience—and I 

know a number of you did—you are used to issuing grand jury subpoenas to obtain telephone records and banking records. Frequently in terrorism investigations, we do not have an open crimiVerDate 0ct 09 2002 15:28 Aug 01, 2007 Jkt 000000 PO 00000 Frm 00231 Fmt 6633 Sfmt 6601 H:\WORK\FULL\032007\34175.000 HJUD1 PsN: 34175
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nal investigation. In fact, that was one of the things that the 9/11 

Commission really encouraged us to do and that this Committee 

encouraged us to do and the intelligence Committees, to move 

more—when we are thinking about a terrorism case, to move from 

simply a criminal mindset to thinking in an intelligence mindset. 

So a National Security Letter is the tool that we use in order to 

get the basic building blocks of those investigations, again, like 

phone records for almost every terrorism case, financial records 

when we are building terrorism financing cases. So, without National Security Letters, our national security investigations would 

really be stopped before they even got started. 

Mr. SMITH. Okay. Thank you. 

Mr. Fine. 

Mr. FINE. I do think that they are important investigative tools. 

They can connect terrorist individuals with terrorist groups. They 

can find out where terrorist financing can occur. They are indispensable in counterintelligence investigations. And the FBI did tell us, 

from folks in the field to headquarters, how important they were 

to the investigations and showed us examples of that. I have said 

that I think they are important. There also needs to be important 

checks on these tools because they are intrusive, and there is information that is obtained and retained for significant periods of time, 

and so while they are important investigative tools, there also 

needs to be appropriate checks on them as well. 

Mr. SMITH. Mr. Fine, in your conclusions—it is the second one—

you say, ‘‘In most but not all of the cases we examined in this review, the FBI was seeking information that it could have obtained 

properly through National Security Letters.’’

What percentage would you guess is that? In other words, what 

percentage of the problems could have been resolved if they had obtained National Security Letters? 

Mr. FINE. We found instances, a few instances, where they obtained information inappropriately and could not have used a——

Mr. SMITH. How many of the 739 would you guess that is? 

Mr. FINE. Well, the 739 is hard to tell because they could not tie 

them to appropriate investigations all the time, and there were 

many times where they could not tell us it was an emergency, so 

I do not know how many in the 739. That is the most troubling aspect of it. 

With regard to the others, the National Security Letters in the 

files we reviewed, I would say we found about seven where there 

were illegal uses of them, where the FBI was attempting to obtain 

information through confusion, through error, of information that 

they were not entitled to obtain through a National Security Letter, either an educational record or obtaining information on a full 

credit report in a counterintelligence case, which they are not allowed to obtain, or not using it in NSL——

Mr. SMITH. You said seven times? 

Mr. FINE. Seven of the reviews that we found and we found in 

our—seven of the individual ones, and as you will recall, we did not 

do a review of every NSL that was issued. We did a small sample 

of them. 

Mr. SMITH. Okay. Thank you, Mr. Fine. 

Thank you, Mr. Chairman. 

229

Mr. CONYERS. Thank you very much. 

The gentleman from New York, Jerry Nadler. 

Mr. NADLER. Thank you. 

Well, Mr. Fine, I suppose. You state in your report that there 

were no intentional violations of NSL policy procedure, that these 

were basically carelessness but that there were no intentional violations, no crimes. 

Mr. FINE. Correct. 

Mr. NADLER. Okay, but we also read in the report that agents 

intentionally went around the statute to provide phony information 

requests to telephone companies based on false statements. 

For example, the FBI’s Communications Analysis Unit went 

around the NSL statute because it felt that the statute was insufficient and contracted with the telephone companies to access information directly. These contracts were approved by the Office of 

General Counsel and were exploited by issuing Exigent, or emergency, Letters. Well, let me ask the General Counsel. 

What is the statutory basis for an Exigent Letter? As far as I can 

tell, there is no basis for it. 

Ms. CAPRONI. Well, under 2702, we have the authority to get 

records from a phone company in an emergency circumstance without a National Security Letter. The Exigent Letters were undoubtedly inappropriate shortcuts to the process, though. 

Mr. NADLER. Well, under 2702, if you were going to get information in an emergency, what do you have to do? 

Ms. CAPRONI. You simply have to tell the carrier that there is an 

emergency. We recommend that you explain to the carrier what the 

emergency is, and it is then up to the carrier to decide whether or 

not to provide us records. So it is not a compulsive system. 

Mr. NADLER. Not compulsive, but of course, the carrier has no 

particular interest in protecting—if you are looking at my records 

or if you want my records, for example, the phone company has no 

particular interest in protecting my privacy rights, and I will never 

find out about it, so I cannot go to court to protect them, correct? 

Ms. CAPRONI. I do not represent the carriers, but I would disagree with the theory that they have no particular interest in protecting your records. In fact——

Mr. NADLER. What is their interest? 

Ms. CAPRONI. In fact, the carriers were diligent in making sure 

that any record they gave to us they subsequently obtained a National Security Letter for. 

Mr. NADLER. Well, wait a minute. Mr. Fine’s report says, in 

many, many instances, hundreds of instances, that that never happened. 

Ms. CAPRONI. As of right now, there are still some numbers that 

have not received National Security Letters to back up the requests. 

Mr. NADLER. But back up years later after the report, but that 

is backfilling, in other words, and that is certainly not evidence 

that the phone companies were diligent in seeking these things. 

That is saying that, after this report was done, someone said, 

‘‘Wow, we have got a problem on our hands. We had better go get 

these letters 4 years later or 3 years later.’’ That is not evidence 

of what we are talking about. 

230

Ms. CAPRONI. Respectfully, even though I am not defending the 

practice, it is not the case that it was only after Mr. Fine’s report 

came out that they were attempting to make sure that the paperwork documentation was appropriate for every record they obtained. 

Mr. NADLER. You think the paperwork documentation should be 

done as appropriate. 

Ms. CAPRONI. If it is not, the records will come out of our database and be destroyed. 

Mr. NADLER. In this morning’s Washington Post, it says: Under 

past procedures agents sent exigent circumstances letters to phone 

companies seeking toll records by asserting there was an emergency. Then they were expected to issue a grand jury subpoena or 

national security letter which legally authorizes collection after the 

fact. Agents often did not follow up with that paperwork, the Inspector General’s investigation found. 

The new instructions which, according to the Washington Post, 

were issued to the FBI tell agents there is no need to follow up 

with National Security Letters and subpoenas. The agents are also 

told that the new letter template is the preferred method in emergencies but that they may make requests orally with no paperwork 

sent to phone companies. 

In other words, it appears from this morning’s Washington Post 

that instructions are now being given to the FBI not to bother with 

any backup documentation after an oral request to the phone company for records invading people’s privacy. 

Ms. CAPRONI. Quite the contrary. The instructions are that if 

they get information based on an oral request—and just to give an 

example of when that might be appropriate, if a child has been kidnapped and the ransom call comes in——

Mr. NADLER. Obviously, in those—I am not questioning the need 

in an emergency like that for getting records right away. 

Ms. CAPRONI [continuing]. And to get them on an oral request. 

Mr. NADLER. I don’t doubt it. What I am questioning is that, according to today’s Washington Post, the opposite of what the two 

of you are saying is the case and that now they seem to be saying 

we will take care of this lack of follow-up of documentation by simply declaring it unnecessary. 

Ms. CAPRONI. No, Congressman, that is not the policy. The policy 

now is that if a request is going to be made on an emergency basis 

for records, that has to be documented. It has to be documented in 

the first instance in the request. But if there is not time to do that 

so that you need an oral request, then that has to be documented 

to the file together with the approval for it. So it is, again, an internal control to avoid the problem that was existing, which was 

emergency had become a flexible——

Mr. NADLER. Okay. One final question. That is to Mr. Fine. Just 

a quick clarification on accessibility of PIN numbers and Social Security numbers of individuals through this process. 

On page 73 of your report, there is a discussion of a potential Intelligence Review Board violation because an agent accessed a bank 

balance by getting a person’s bank account and PIN number from 

the result of a FISA order. The agent was faulted for not using an 

231

NSL but was not faulted for the fact that the PIN number was 

readily available. 

The reason I flagged this is because this reference makes clear 

that through an NSO 215 order the Government can secretly obtain the PIN number for someone’s debit or credit account——

Mr. CONYERS. The gentleman’s time has expired. Finish. 

Mr. NADLER. What limits are there on this and what protections 

on this power to get PIN numbers and credit account numbers? 

Mr. FINE. The FBI can get bank records and records like that. 

There has to be predication for it and they have to show the need 

for that. That is one of the tools that the FBI has used and can 

use, as we pointed out. That is one of the reasons there needs to 

be controls on this. 

Mr. CONYERS. The gentleman’s time has expired. 

The Chair turns to the former Chairman, Jim Sensenbrenner 

from Wisconsin, whose letter to the Department of Justice first 

triggered the inquiries that have flown from this. I congratulate 

him and recognize him at this time. 

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman. 

Just by way of background, we did some oversight when I was 

the Chair of the Committee and received a letter in late 2005 that 

indicated that there were problems with National Security Letters. 

The audit that the Inspector General conducted was as a result of 

a provision that I put in the PATRIOT Act reauthorization that required this audit to be made as well as a subsequent audit that Mr. 

Fine is doing that I am sure we are going to talk about extensively 

later when the report is issued. 

I would also like to point out that National Security Letters were 

not authorized by the initial PATRIOT Act in 2001 but have been 

around since 1986 in legislation that was authored by Senator Patrick Leahy of Vermont, who is the Chairman of the Judiciary Committee on the other side of the Capitol. 

The PATRIOT Act reauthorization put in a number of civil liberty protections relative to National Security Letters because we 

knew that there were problems afoot and decided that, even though 

NSLs were not a part of the PATRIOT Act, that they needed to 

have civil liberties protections. 

I am proud of that work that this Committee did and eventually 

found its way into the PATRIOT Act Reauthorization Act, which 

was signed by the President in March of last year. 

One of the things, Ms. Caproni, that I am really concerned about 

is that the Justice Department and the FBI in particular have 

come to the Congress repeatedly over the last dozen years asking 

for administrative subpoena authority, meaning that subpoenas 

could be issued without judicial supervision. This Congress has repeatedly rejected each and every one of those requests. 

Now a National Security Letter is kind of like an administrative 

subpoena, although it is limited to the type of information that can 

be obtained. I would like to know from both of the witnesses 

whether the FBI simply turned around and used NSLs to get huge 

amounts of information after Congress said ‘‘no’’ again to administrative subpoena authority. 

Ms. CAPRONI. No, we didn’t. National Security Letters are always 

focused on a particular case. There is no bulk collection via NaVerDate 0ct 09 2002 15:28 Aug 01, 2007 Jkt 000000 PO 00000 Frm 00235 Fmt 6633 Sfmt 6601 H:\WORK\FULL\032007\34175.000 HJUD1 PsN: 34175
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tional Security Letters. And while our congressional reporting 

numbers are off, as Mr. Fine correctly found, they are not off by 

an order of magnitude. That is, we reported that we collected data 

on less than 20,000 people a year. While that number may go up, 

it is not going to go up to above 200,000. 

Mr. SENSENBRENNER. How can you account for the fact that the 

number of NSLs that were issued before 9/11 was about 8,000 plus 

per year and then it went up to 150,000? Do we have that many 

potential terrorists running around the country? If so, I am really 

worried. 

Ms. CAPRONI. I think it is a function of two things. First off, I 

think it is a function of the fact that post-9/11 a number of agents 

were moved into the counterterrorism area and the Director directed that no lead in a counterterrorism case would go unpursued. 

So there is a directive to agents that they must cover all 

counterterrorism leads. That is point one. 

I think point two was, because we were focusing much more on 

an intelligence-driven reaction to counterterrorism threats, the 

toolbox that we were using was focusing mostly on National Security Letters, as opposed to the prior reaction, which would have 

used grand jury subpoenas. 

Mr. SENSENBRENNER. Mr. Fine. 

Mr. FINE. I agree with Ms. Caproni. Prior to the September 11th 

attacks, it was rarely used. There were delays in getting them, and 

they were not following the leads that they would have followed 

after the 9/11 attacks. 

After the 9/11 attacks, they are attempting to connect the dots, 

attempting to track down leads. When there are indications from 

a terrorist overseas that there might be connections to the United 

States, they try and follow that. 

Mr. SENSENBRENNER. My time is running out. I just make the 

observation that one of the things that gets people in this town in 

big trouble is overreaching. I think that, given your report, Mr. 

Fine, the FBI has had a gross overreach. What this does is it 

erodes support for the function that the FBI does to protect all of 

us from future terrorist attacks. 

I hope that this would be a lesson to the FBI that they can’t get 

away with this and expect to maintain public support for the tools 

that they need to combat terrorism. Given the way the FBI has 

acted, I have my doubts. But let this be a warning. 

And my time is up. 

Mr. CONYERS. The Chair recognizes the gentleman from Virginia, 

Bobby Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Fine, you suggested that there is some confusion in how to 

work these things, as I understand it, representations that there 

was an emergency, when in fact there was no emergency, and representations that grand jury subpoenas had been issued, when in 

fact they had not been issued. Is that right? 

Mr. FINE. That is correct. 

Mr. SCOTT. Has anyone been sanctioned? 

Mr. FINE. No. The FBI, as a result of this report, is going and 

looking at a special inspection to look at exactly what happened 

233

with this, how the problems occurred, and to determine accountability. I think that is appropriate. 

Mr. SCOTT. To your knowledge, no one has been sanctioned so 

far. 

Mr. FINE. Not yet, no. 

Mr. SCOTT. Okay. Ms. Caproni, you indicated that we need to 

change our mindset from criminal investigation to intelligence 

gathering. 

Ms. CAPRONI. I am saying that, post-9/11, that has been what the 

FBI has been charged with doing—really not thinking of our terrorism investigations as wholly criminal. 

Mr. SCOTT. Now when we use these letters, are we obtaining information regarding United States citizens? 

Ms. CAPRONI. Sometimes. 

Mr. SCOTT. That is a yes? Not always, but sometimes? 

Ms. CAPRONI. Correct. About half and half. 

Mr. SCOTT. You are using this mindset against United States 

citizens. When you get all this information like Social Security 

numbers and phone records, how long is this information retained? 

Ms. CAPRONI. The issue of retaining national security—data that 

is obtained via National Security Letters is subject to a working 

group that the DNI is chairing together with the Department of 

Justice and that we will participate on in terms of how long we 

should keep it. As of right now, it is subject to the normal archive 

rules, so we keep it for whatever the law under our archives requires, which is typically 20 years. 

Mr. SCOTT. Twenty years. Now how many criminal convictions 

have you gotten from NSL letters? How much information from 

NSL letters has resulted in criminal convictions for terrorism-related offenses? 

Ms. CAPRONI. That was one of the questions that the IG was 

charged with answering, and I think deriving is very difficult. Because, while National Security Letters are typically used at the beginning of an investigation, we don’t tag the data; and so tracing 

it through to know whether national security data started——

Mr. SCOTT. Mr. Fine. 

Mr. FINE. We try, too, but you cannot tell how many convictions 

as a result of that. It is not specifically segregated or tagged. When 

we tried to follow through the system, it was very hard to do that. 

So I can’t give you a number. 

Mr. SCOTT. If somebody said one, would that surprise you? Could 

you contest that number? 

Ms. CAPRONI. I would. 

Mr. FINE. I would think it would be higher, but I can’t tell you 

one way or the other. 

Mr. SCOTT. What information is obtained through NSL letters 

that could not have been gotten through going through the normal 

FISA process, even in emergencies when there is an after-the-fact 

process with the FISA courts? 

Ms. CAPRONI. Anything that we can obtain through a National 

Security Letter could be obtained from a FISA 215 order. 

I would tell this Committee that I think if you change the law 

in that way, you would be doing grave disservice. It would essentially sink the system. We issue, as you can tell from the report, 

234

thousands of National Security Letters to get information. We do 

not have an infrastructure in place to take every one of those to 

court any more than an AUSA in any district has the infrastructure in place to go to court to get every grand jury subpoena. It is 

simply—we don’t have the infrastructure to do that. 

Mr. SCOTT. So you are not getting information you couldn’t get 

through FISA, but just administratively you would have a judge 

looking at what you are doing and not having a process that lacks 

oversight. 

Ms. CAPRONI. Congressman, under FISA—under the FISA statute, section 215 of the PATRIOT Act gave us the authority to get 

an order for any type of record. 

Mr. SCOTT. That is what we are talking about. 

Mr. Fine, did I understand that in these cases there is an actual 

ongoing investigation prior to issuing these letters or there is not 

an identifiable investigation ongoing when they issued the letters? 

Mr. FINE. It has to be tied to some investigative file. They have 

to open an investigative file or a threat assessment or preliminary 

inquiry or full inquiry. It has to be tied to one of those, and can’t 

be issued out of a control file. 

Mr. SCOTT. That is what they are supposed to be doing. Are they 

doing that? 

Mr. FINE. We found there were instances of they were issued out 

of a controlled file. 

Mr. SCOTT. If there is no ongoing investigation, what is the 

standard for deciding when to issue one and when not to issue one? 

Ms. CAPRONI. The standard is that it has to be relevant to an authorized investigation. What Mr. Fine was talking about with the 

control files is, while it is a difficult situation to understand, those 

NSLs were in fact—they related to an authorized investigation. 

There was a bureaucratic problem, which nobody likes to hear. 

There is a bureaucratic problem, but there was a huge bureaucratic 

problem that we believe we have worked out. None of the NSLs 

that were issued out of control files did not relate to an authorized 

investigation. They all were tied to investigations that were appropriately open. 

Mr. CONYERS. The distinguished gentleman from North Carolina, 

Howard Coble. 

Mr. COBLE. I thank the Chairman. 

Good to have you all with us. 

Mr. Fine, your report recommends a number of changes on the 

FBI’s use and tracking of National Security Letters. The Attorney 

General issued a press release on March 9th responding to those 

recommendations; and I presume each of you is familiar with that 

report, are you not, the March 9th report? 

Let me put this question to each of you: Will those recommendations submitted by the AG restore the FBI’s accountability for its 

use of NSLs? 

Mr. Fine, start with you. 

Mr. FINE. I believe that the response to the recommendations 

and what the FBI and the Department is doing is appropriate. Is 

it sufficient? Is it all that needs to be done? I am not sure. We will 

have to see what the results of those steps are. 

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We try to provide recommendations to ensure that these very important but sensitive tools are used in full accord with National Security Letter authorities, AG guidelines, and internal control policies. They hadn’t been in the past. 

Mr. COBLE. Ms. Caproni. 

Ms. CAPRONI. I think we are going to have to work to get the 

trust of this Committee back, and we know that is what we have 

to do, and we will do it. 

Mr. COBLE. Can the FBI implement the Attorney General’s directions within the 4 months when the AG has requested Mr. Fine to 

report on your progress? 

Ms. CAPRONI. I hope so. There are some that are going to require 

some interagency work, but certainly if not all will be implemented 

in 4 months, we will have made substantial progress. 

Mr. COBLE. You may have addressed this earlier, Ms. Caproni, 

but let me put it to you in case you did not. Does the FBI have 

any discrepancy or challenge with the report that Mr. Fine has 

issued? 

Ms. CAPRONI. No, we accept the report. To the extent we had factual quarrels, we worked those out. 

Mr. COBLE. You may not be able to respond to this. What do you 

think, Ms. Caproni, are the greatest obstacles that your office faces 

in implementing the AG’s directions? 

Ms. CAPRONI. I think that any obstacles there are the Director 

is going to make sure are removed. I think it is time—it is energy 

and effort; and we are going to do it. 

Mr. COBLE. I thank you both for being here. 

Mr. Chairman, if I may, I would like to submit for the record the 

March 9th press release submitted by the Attorney General. 

Mr. CONYERS. Without objection, so ordered. 

[The information referred to is available in the Appendix.] 

Mr. COBLE. I thank the Chairman. I yield back my time. 

Mr. CONYERS. I ask the lady—don’t sit down now. I ask you to 

please excuse yourself from this hearing. No visitors can interrupt 

a hearing in the Congress. Just a moment. Would the officers escort this lady out, please. 

The Chair recognizes the other distinguished Member from 

North Carolina, Mr. Mel Watt. 

Mr. WATT. Thank you, Mr. Chairman. I thank the Chairman for 

convening the hearing. 

Mr. Fine, I am looking on page 7 of your testimony in which you 

indicate that you reviewed 293 National Security Letters in 77 files 

and found 22 possible violations that had not been identified or reported by the FBI, and I am trying to extrapolate that, although 

Ms. Caproni seemed to take some issue with whether that was a 

reliable sample. 

I am trying to assume for the moment that it is, without trying 

to figure out how many there would be of the total National Security Letters that were possible violations. 

My formula is I am starting with 143,000 National Security Letter requests on page 5. Would that be an appropriate place to 

start? Have you done the extrapolation for me? 

Mr. FINE. I haven’t done it, but there are 143,000 requests, and, 

as you know, a request—there can be multiple requests in a letter, 

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so there are approximately 45,000 letters during the time period, 

with 143,000 requests. I think the starting point would be about 

44,000 letters during the time period. 

Mr. WATT. And if you extrapolated the possible violation out, 

what would that come to, according to your math? 

Mr. FINE. If you are talking about 7 percent, approximately 7 

percent of the 293 had a violation, so 7 percent of 44,000 would approximately be about 3,000. 

Mr. WATT. So you are telling me——

Mr. FINE. That is quick math. I hope it is correct. I think it is. 

Mr. WATT [continuing]. That it is possible my FBI and my people 

who are supposed to be protecting my interest violated the law how 

many times? 

Mr. FINE. Well, I think there are possible violations of either the 

law, the Attorney General guidelines or the FBI’s policies several 

thousand times, if you statistically extrapolate. It was a small sample. We didn’t think it was skewed or biased. But if it held up 

through the entire population of files, several thousand, some more 

serious than others. But that is a lot. 

Mr. WATT. Ms. Caproni, why ought not our public be concerned 

about that kind of disregard of the law and internal process? 

Ms. CAPRONI. Well, I think the public should be concerned. We 

are concerned, and we are going to fix it. 

I would say, as Mr. Fine said, the sort of errors range sort of on 

a long continuum of seriousness. The most serious errors that Mr. 

Fine identified were obtaining full credit reports in counterintelligence cases. We had a——

Mr. WATT. That is 7 of the 22 files where you say they were real 

serious violations. Extrapolate that out for me, Mr. Fine. 

Mr. FINE. Well, I think in Ms. Caproni’s testimony she talked 

about the level of seriousness and which were FBI errors and 

which were company errors and came up with the figure that a little bit over 1 percent of them were serious violations involving FBI 

errors. If you extrapolate that to the entire population, that would 

be about 600 cases of serious FBI misconduct. 

Mr. WATT. Ms. Caproni, is there some reason that this Committee and the American public shouldn’t be concerned about law 

enforcement violating the law 600 times? 

Ms. CAPRONI. We are quite concerned about this, Congressman; 

and we are making every effort to figure out where those errors 

are, to sequester the material, to pull it out of our files and to destroy it. We will——

Mr. WATT. How many files have you all destroyed based on this 

investigation up to this point? 

Ms. CAPRONI. When we identify data that——

Mr. WATT. Isn’t that a number rather than an explanation? 

Ms. CAPRONI. Congressman, I don’t know the number. 

Mr. WATT. Has the FBI destroyed any files up to this point based 

on this investigation? 

Ms. CAPRONI. We destroy data all the time when we discover it 

was improperly collected. So both outside of Mr. Fine’s investigation and——

Mr. WATT. Have you destroyed any files based on this investigation? 

237

Ms. CAPRONI. Again——

Mr. WATT. Have you destroyed any file? 

Ms. CAPRONI. Not a file. 

Mr. WATT. Have you destroyed any information based on this investigation? 

Ms. CAPRONI. Yes. 

Mr. WATT. What have you destroyed? 

Ms. CAPRONI. The full credit reports that were obtained improperly, and I think there was also some telephone data. 

Mr. WATT. How many is that? 

Ms. CAPRONI. It is not much. 

Mr. WATT. In these 600 cases that you have identified as possible 

real serious areas, several hundred, do you intend to prosecute anybody for violating the law? 

Ms. CAPRONI. We will have to look at what the facts are. I am 

not going to pre-judge. 

Mr. WATT. How long is it going to take you to look at that? 

Mr. CONYERS. The gentleman’s time has expired. 

Ms. CAPRONI. The inspectors are in the field now, and I think 

they will have completed their inspection, which is a sampling 

process, but they will have completed it within a week or so. 

Mr. WATT. You have got a more reliable sampling process than 

Mr. Fine. 

Ms. CAPRONI. It is bigger, and it is across all field offices. 

Mr. CONYERS. The gentleman from California, once an attorney 

general for his State, Dan Lungren. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

Ms. Caproni, I was one of the ones who have defended the FBI 

and the Justice Department in the use of these as we went through 

legislation the last 2 years, and to say that I am disappointed 

doesn’t give justice to what I feel about this. 

Mr. Fine has said that this is the result of mistakes, carelessness, confusion, sloppiness, lack of training, lack of adequate guidance and lack of adequate oversight. That sounds like a report 

about a first or second grade class. We are talking about agents of 

the FBI, who are lawyers in many cases, who have college degrees, 

who have other kinds of education. We are talking about people 

who have gone through the FBI Academy. We are talking about 

people who presumably have been trained to go into this. 

We are how many years past 9/11? 

In response to the question I believe it was of Mr.—I am not sure 

who asked you this, but whether you could get this done in 4 

months, you said you hoped so. I hope you will deliver a message 

that we expect it will be done. Because I don’t think if you can’t 

get it done in 4 months you are going to have to worry about improving your procedures for NSLs because you probably won’t have 

NSL authority. 

I just want to convey to you how upset many of us are who have 

defended this program and have believed it is necessary to the protection of our country and you in the FBI have an obligation to try 

to find out who the potential terrorists are but also to make good 

on the promise we have made to the people of America that the terrorists are not going to succeed by indirection what they can’t do 

by direction. That is, to destroy the constitution. 

238

I just—I will tell you this. I talked with Mr. Mueller yesterday. 

Because I have known him for 30 years. He’s Mr. Fix-it. He goes 

in and fixes messes. He has done it all over this Government. I 

have seen his work in San Francisco. I have seen his work here at 

the Department of Justice. If I didn’t know him, if I didn’t know 

his record, if I didn’t know he is the man we have put in many 

places to fix things, I would have no confidence in the FBI right 

now. 

So I hope you will deliver a message to all your people that it 

is not good enough to tell us you hope it is going to be done in 4 

months. I hope you are going to deliver a message that it better 

be done in 4 months or you are not going to have NSLs to worry 

about. I have to say that as someone who supports them and will 

fight on the floor to have that authority given to you if there is 

proper oversight. But I probably won’t get a majority of votes on 

the House floor if you don’t fix it. So can you tell me you are going 

to do better than you hope to fix it in 4 months? 

Ms. CAPRONI. Congressman, you are absolutely right. Yes, it will 

be done. 

Mr. LUNGREN. I appreciate that. 

Now, Mr. Fine, you are the Inspector General for the FBI. I want 

to congratulate you on what you have done. We say we take some 

satisfaction in your carrying out the authority we gave you, but 

sometimes that doesn’t happen, and we appreciate the job you have 

done here. 

Maybe you won’t want to answer this question. Maybe you can 

help me. How do you explain carelessness, confusion, sloppiness, 

lack of training, lack of adequate oversight with the FBI? I just 

turned on television last night and watched one or two or three of 

these shows that always shows the FBI as being far better than 

local government. A little burr under my saddle, because I am a 

former AG of California. I appreciate the FBI, but how do you explain this? I am not sure what would be worse, frankly. 

At first, I was relieved that you said this and that it wasn’t intentional action by the FBI. At least, we haven’t found that. I 

would at first have been worried about that. 

Now, as I think about this, should I be more worried about the 

fact that the FBI now, in something as important as NSLs, has 

marks of carelessness, confusion, sloppiness, lack of training, lack 

of adequate guidelines and lack of adequate oversight? Is this exceptional in your experience in your oversight of the FBI? 

Mr. FINE. I think the FBI worked hard to get these authorities 

but didn’t take it seriously enough putting in controls over these 

authorities. I think there is often a problem sort of between the receipt of the authority and the execution of that authority. That is 

clearly what happened here. We were very troubled by it. 

We have seen problems in the FBI in terms of information technology and trying to upgrade their information technology. We 

have seen problems, but they are—these are difficult tasks, and 

they are trying to do this as they are changing their mission, and, 

quite honestly, there really is no excuse for it. 

Mr. LUNGREN. Do you have any questions that the NSLs are of 

some value? 

Mr. FINE. Yes, I believe they are of value. 

239

Mr. LUNGREN. If we lost them, that would be a loss. 

Mr. FINE. I believe they are a valuable investigative tool to 

counterterrorism and counterintelligence investigations, and that is 

why it is so troubling. 

Mr. LUNGREN. We better fix it so we don’t lose a tool that is truly 

effective. 

Mr. FINE. I think they need to fix it. 

Mr. LUNGREN. Thank you, Mr. Chairman. 

Mr. CONYERS. The gentlelady from Texas, Sheila Jackson Lee. 

Ms. JACKSON LEE. Mr. Chairman, again, my appreciation for 

your continuing effort of establishing transparency in Government. 

I welcome both of the witnesses here today and recount just limited history that troubles me as we find ourselves here today. I 

know the good intentions of the witnesses, but certainly I need not 

remind you of the era of McCarthyism and certainly that role law 

enforcement played in that misdirected era of the United States of 

America. 

As a young lawyer, I participated in the investigations into the 

assassination of Dr. Martin Luther King and John F. Kennedy 

right here in this Congress; and what was exposed was the extensiveness of the COINTELPRO of Dr. Martin Luther King—

wrongheadedness, as far as I am concerned—as relates to the utilization of protecting this country. A civil rights leader who happened to be outspoken against the heinous governmental acts of 

segregation, and all of a sudden he became a major target of the 

Federal Bureau of Investigation, with any number of officers, 

agents, if you will, probing and looking over paperwork that he 

might have generated. 

That smacks, as far as I am concerned, of where we are today, 

even though, Mr. Inspector General, you have indicated that it has 

been without malice, without intentions. And we all know that 

there is a phrase that says, a journey to a certain place is paved 

on that road with good intentions. 

So I am not very happy as to where we are today, because I argued vigorously about the extensive powers that we were giving to 

the President of the United States out of fear. One thing that the 

Constitution reminds us and certainly the Founding Fathers, who 

left a tyrannical society to be free, is that tyranny can get the best 

of us. Lack of control can get the best of us. 

So I ask to the General Counsel of the FBI, did you determine 

what percentages of those letters that were sent without National 

Security Letters generated into terrorist responses or terrorist 

incidences or terrorist prosecutions? I would be interested in that 

number. Why don’t you just answer that yes or no. Do you have 

the percentage? 

Ms. CAPRONI. I do not. 

Ms. JACKSON LEE. I would like to get the percentage, frankly. 

Ms. CAPRONI. The Director has ordered a special investigation of 

the whole exigent letter instance. We will brief this Committee 

when we have the results of that. 

Ms. JACKSON LEE. I will join my colleague on the other side of 

the aisle. How quickly can you get that information? This is about 

protecting the Constitution and securing the homeland, two very 

important jurisdictional responsibilities; and I happen to serve on 

240

both Committees, Homeland Security and this. So my question is, 

how soon can you get those numbers? It makes a real difference to 

know whether you generated potential terrorist threats that would 

secure the homeland or whether or not the FBI was on a fishing 

expedition. 

Ms. CAPRONI. Congresswoman, let me assure you that the group 

was not on a fishing expedition. Having said that, I understand my 

assurance to this Committee at this point isn’t worth a lot. The Inspection Division is conducting the inquiry. They know that they 

have to proceed quickly, but I regret I can’t tell you when they are 

going to be done. I will make sure that the Director understands 

that you want it done as quickly as possible. 

Ms. JACKSON LEE. Certainly we wish the Director well. We would 

have wanted to have him appear before this Committee, but we do 

wish him a speedy recovery. 

Ms. CAPRONI. Thank you. I will let him know that. 

Ms. JACKSON LEE. Mr. Inspector General, I assume you will say 

to me that you don’t speculate, but let me quickly ask you a question and will you be thinking, the General Counsel, on this question. 

The President signed on the PATRIOT Act a signing statement 

which indicated that he was going to interpret or have the Act interpreted in a manner consistent with the President’s constitutional authority to supervise a unitary executive branch to withhold information. Just be thinking about that. I wanted to know, 

did that give you free ride. That is why I have legislation that indicates that agencies should not be running, I must say, amok because of signing statements. 

Mr. Inspector General, what you looked at and you said it has 

not been intentional—help me out—however, don’t you believe 

there should be restraints put in place and might the PATRIOT 

Act be entirely too broad to even be a valuable tool that would restrain people in balancing both security and as well balancing civil 

liberties? 

Mr. FINE. I do believe that there need to be controls. I do believe 

that there needs to be a balance, a balance of effective tools to prevent terrorism, and at the same time effective controls on the use 

of those tools. 

What was most troubling to us was that those controls were not 

implemented and not followed. I share the concerns expressed by 

the Members of this Committee, and that is why we did the report. 

We were not restricted or limited in what we did, and I know 

there was a Presidential signing statement, but the Department 

did cooperate with us. We did provide the information that we had. 

We provided it in the most unclassified way we could, and the Department actually did unclassify a fair amount of this information 

so it could be fully aired. We also provided a classified report to 

this Committee and other Committees describing the additional information. So we did what we could to identify the problems in this 

program. 

Mr. CONYERS. The gentleman from Florida. 

Ms. JACKSON LEE. Mr. Chairman, can she answer yes or no on 

the signing statement? Would you indulge me? 

241

Ms. CAPRONI. The signing statement had absolutely no impact on 

how we secure letter authority. 

Mr. CONYERS. The gentleman from Florida, Mr. Ric Keller. 

Mr. KELLER. Thank you, Mr. Chairman. 

Ms. Caproni, let me begin with you. If the FBI didn’t have National Security Letters as an investigative tool, you could get the 

same information via prosecutor through a grand jury subpoena or 

by going before a FISA court and getting a court order, isn’t that 

correct? 

Ms. CAPRONI. Yes. 

Mr. KELLER. The concern that you have with those two options 

is you essentially don’t have the manpower. I think you said it 

would sort of sink the system. 

Ms. CAPRONI. I was responding to a suggestion that all of these 

should be obtained via court order. If that were the law, that would 

create substantial obstacles to our national security program. 

Mr. KELLER. That is why you aren’t using in all cases the grand 

jury subpoena or the FISA court orders, because you don’t have the 

manpower power to do that and still do your investigations? 

Ms. CAPRONI. I would say it is perhaps slightly more nuanced 

than that. On grand jury subpoenas, there are cases where we 

don’t have a criminal case open, so a grand jury subpoena is not 

an option. Further, the whole philosophy of making sure that we 

are thinking from an intelligence perspective rather than immediately cutting to the chase of a criminal investigation encourages 

agents to use national security tools versus criminal tools. 

Mr. KELLER. Let me follow up, because the challenge we have is 

getting this in the strike zone. We want you to have this information that you need as an investigative tool, but we want there to 

be some sort of check on your authority. To use the grand jury subpoena, for example, to get my phone records, I have the ability to 

move to quash that subpoena and have a judge hear it. 

Ms. CAPRONI. Only if someone tells you the subpoena has been 

served, which is not the typical route of a grand jury subpoena. 

Mr. KELLER. Before you went before a FISA court you would 

have a set of eyes through the FISA court judge looking at it, correct? 

Ms. CAPRONI. That is correct. 

Mr. KELLER. In terms of using the National Security Letter, let’s 

say you served it on my phone company. The phone company is not 

necessarily looking out for my personal privacy interests, and so 

there is not a set of eyes looking at it, at least from an individual 

perspective. 

Ms. CAPRONI. Again, that is the same as with a grand jury subpoena, correct. 

Mr. KELLER. So all we have is our Inspector General as a check 

on the controls to make sure that you are applying it in an appropriate way. 

Ms. CAPRONI. I think this report has told us we internally have 

to do a far better job at making sure that we are maintaining internal controls over the use of this tool. I fully expect Mr. Fine to 

come back to visit us in future years and will dutifully take us to 

task if we have not accomplished that. 

242

Mr. KELLER. Mr. Fine, imagine a housewife in Orlando, Florida. 

She does absolutely nothing relevant to terrorism or espionage, 

never met or spoken to a terrorist or spy. Based on your investigation, does she have any reason to worry about National Security 

Letters violating her privacy by looking at her phone records, bank 

records or Internet search records? 

Mr. FINE. I think that there are times when the FBI looks for 

telephone records of potential terrorists and looks to see who they 

have contacted or been in contact with. Could be advertent, could 

be intentional contact, could be inadvertent contact. As a result of 

that contact, there can be efforts to look and see what telephone 

numbers have been called. 

Now, if they had no contact whatsoever with the subject of a potential terrorist investigation, it is less likely that the records 

would be obtained here. 

Mr. KELLER. In framing my question, I said, no contact, either 

written or spoken. So let me ask you, based on your investigation, 

were there any situations where you saw National Security Letters 

being used when there was no relevance whatsoever to international terrorism or espionage? 

Mr. FINE. We couldn’t in our review look at all the investigative 

case files and say there was an adequate predicate. There wasn’t. 

We looked at how they were used and whether on their face they 

were improper. So it is impossible for us to say that the relevancy 

standard was met. 

One thing we did find and I would note, this is that, in many 

cases, the counsel of the FBI field offices, either the Chief Division 

Counsel or Assistant Counsel, did not aggressively and independently look for that. And they are the ones who should be checking 

on that, they are the ones who need to ensure there is adequate 

predicate for this investigation. And we saw in many cases that 

that didn’t happen that they acceded to the wishes or the arguments of the case agents or special agents in charge without independently and aggressively looking at that. 

Mr. KELLER. One final question. Can you give us an example to 

help make your case, if you have one, as to what is a scenario 

where a National Security Letter is your best investigative tool because, for whatever reason, a grand jury subpoena or a FISA court 

order is insufficient? 

Ms. CAPRONI. Any time I would say that they were at the very 

beginning of an investigation; say, for example, after the London 

bombing when the British authorities provided us with telephone 

numbers of the British bombers. So we were looking to see if we 

have anyone in the United States that had telephone contact with 

the London bombers. In my view, the appropriate way to pursue 

that investigation is via National Security Letter. 

Mr. KELLER. Because you wouldn’t have time under the other options? 

Ms. CAPRONI. We wanted to know that very quickly; and, again, 

I think the American people would want us to know very quickly 

after the London bombings took place whether we had any cells or 

groups of people tightly related to the London bombers. So we 

needed to move very quickly; and, in fact, the investigators did 

move very quickly on that to figure how out who here was conVerDate 0ct 09 2002 15:28 Aug 01, 2007 Jkt 000000 PO 00000 Frm 00246 Fmt 6633 Sfmt 6601 H:\WORK\FULL\032007\34175.000 HJUD1 PsN: 34175
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nected to there and was it an innocuous connection or a dangerous 

connection. 

Mr. KELLER. My time has expired. 

Mr. CONYERS. The distinguished gentlelady from Los Angeles, 

California, Maxine Waters. 

Ms. WATERS. Thank you very much, Mr. Chairman. 

May I ask, were these witnesses sworn? 

Mr. CONYERS. They were not. 

Ms. WATERS. May I respectfully request that they be sworn in? 

Mr. CONYERS. Too late. 

Ms. WATERS. Then, Mr. Chairman, I suppose we are going to 

have to rely upon them, particularly the General Counsel, continuing to tell us that they are acting within the law. 

I shall proceed with my questions. 

Mr. CONYERS. If the gentlelady will yield, false testimony before 

this Committee can constitute a violation in and of itself, a 

misstatement, any deliberate misstatements. 

Ms. WATERS. Well, I would have preferred that they be under 

oath, but—however, the Chair has made that decision; and I shall 

proceed. 

Let me just ask about the use of these exigent letters. As I understand it, these letters are used basically to get around having 

to get the NSL letters; is that right, Mr. Fine? 

Mr. FINE. These letters were used in advance of or in lieu of National Security Letters, that is right. 

Ms. WATERS. There was information collected as a result of these 

letters, particularly the operation I believe that was set up with the 

contract with the three telephone companies or telecommunications 

companies; is that correct? 

Mr. FINE. Well, there were contracts with the telephone companies so that they would provide information to the FBI on an expedited basis. 

Ms. WATERS. Ms. Caproni, do you still have contracts with those 

telephone companies, any other telephone companies, or any other 

private businesses to supply you information in the manner that 

those companies did? 

Ms. CAPRONI. We continue to have contracts with the telephone 

carriers that obligate us to provide them with appropriate process 

to get records. 

I can’t answer the balance of your question. I don’t know if we 

have other contracts with other private parties. The telephone companies it made sense, because of the volume of our request. 

Ms. WATERS. How much are the taxpayers paying the telephone 

companies, that they pay to provide them services to spy on us? 

Ms. CAPRONI. I don’t know what the dollar value of the contracts 

are. 

Ms. WATERS. You have no idea? 

Ms. CAPRONI. I actually don’t. 

Ms. WATERS. You have never heard any discussion about it? 

Ms. CAPRONI. I am sorry, I don’t. I just don’t know the amount. 

Ms. WATERS. Information was collected on millions of Americans 

using this as a tool. Now that you know that they are were innocent, they probably should not have been under investigation. Has 

all of this information been purged and gotten rid of? 

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Ms. CAPRONI. We did not collect records on millions of Americans? 

Ms. WATERS. How did it work then? 

Ms. CAPRONI. The exigent letters were provided to the carriers, 

which promised future process. That future process, unfortunately, 

was not always promptly provided. 

Ms. WATERS. What did they do? 

Ms. CAPRONI. Who do? 

Ms. WATERS. The companies. How did they mine the information 

and did they mine information of innocent people? 

Ms. CAPRONI. The carriers provided us with toll billing information, which was then placed into our databases. There is no connection between their databases and our databases. The information 

comes out electronically and moves into ours. 

Again, we are talking about—I believe the number of numbers 

at issue, according to the Inspector General, is somewhere in the 

neighborhood of 3,000. It is my belief, though—again, we will have 

to wait and see what the special inspection finds—that all of those 

numbers were tied to authorized investigations. To the extent any 

were not, the records will be removed from our databases and destroyed. 

Ms. WATERS. When will they be removed? How long will it take? 

Ms. CAPRONI. Again, I am anticipating that that special inspection will take a couple of weeks at least, but probably—I just actually don’t want to speculate. 

Ms. WATERS. Didn’t you have a court order relative to your contracts with these telephone companies? 

Ms. CAPRONI. No, ma’am. 

Ms. WATERS. Was there a court decision relative to the manner 

in which information was obtained? 

Ms. CAPRONI. The information was obtained from the carriers 

pursuant to—it was supposed to be obtained pursuant to the laws 

of ACBA. 

Ms. WATERS. But they were not. 

Ms. CAPRONI. Again, as Mr. Fine has indicated, there were these 

exigent letters that were used. What we are trying very hard to do 

is to unravel and to make sure that we do not have the records of 

anyone as to which there was not—it wasn’t relevant to an authorized investigation. 

Ms. WATERS. How long have you been trying to do this? 

Ms. CAPRONI. We began the process with them last fall and we 

are—we within OGC are to the point that if they cannot demonstrate to our satisfaction very quickly, then any of those records 

have to be removed from the database and destroyed. 

Ms. WATERS. Certificate letters, are you still issuing certificate 

letters? 

Ms. CAPRONI. No. 

Ms. WATERS. When did you stop? 

Ms. CAPRONI. Shortly after OGC learned about them, that process was stopped. We entered into discussions with the Fed over 

whether—Federal Reserve Bank in terms of whether or not it required a National Security Letter. There was some back and forth 

between lawyers, that the decision was made that they would prefer a National Security Letter, so——

245

Ms. WATERS. So you collected information using these certificate 

letters. Has that information been destroyed? 

Ms. CAPRONI. No. 

Ms. WATERS. When are you going to do it? 

Ms. CAPRONI. I don’t believe we are going to do it. 

Ms. WATERS. Why are you going to keep information that was 

improperly collected on financial records of innocent people? Why 

would you keep it? 

Ms. CAPRONI. One, they are not innocent people; and two, it 

wasn’t improperly collected. The Federal Reserve Bank is not directly covered by the right to financial privacy. They can ask for 

a National Security Letter, which they now have done, and because——

Ms. WATERS. Why did you stop using certificate letters if they 

were legal and proper? 

Ms. CAPRONI. Because we thought the better process was a National Security Letter, and the Fed asked us to provide National 

Security Letters. 

Ms. WATERS. How have you determined whether or not the information you collected was on individuals who were suspicious, 

guilty, had committed a crime? How do you determine whether or 

not these people are innocent and the information should be destroyed? 

Mr. CONYERS. The gentlelady’s time has expired. Please answer 

the question. 

Ms. CAPRONI. Certainly. The issue is whether the information is 

relevant to an investigation. There are times when we gather information that is relevant to an investigation but it turns out that the 

person was not engaged, for example, in terrorist financing. We 

don’t then destroy the information, though the investigation is 

closed. So it is much like any other information that is gathered 

during the course of an investigation. 

The issue of whether that policy will continue is a matter that 

is under discussion by a group that is being chaired by the DNI in 

terms of whether we should or we should not continue to retain information that is gathered via National Security Letters after the 

investigation is closed. 

Mr. CONYERS. The gentleman from Virginia, Mr. J. Randy 

Forbes. 

Mr. FORBES. Thank you, Mr. Chairman. 

Mr. Chairman, I hope I can emulate your very calm manner of 

handling this Committee; and I just want to tell the witnesses 

what I said at the beginning—I want to thank you both for being 

here. We know you have a tough job, and we appreciate you coming 

in here and answering our questions today. 

I have listened to the Committee as we have gone through this 

process, and we have had testimony from the Washington Post, we 

have had testimony from members of the audience, testimony from 

Members of this Committee. You are the only witnesses we have 

here. 

I think that you get the message, both of you, you had it when 

you came in here, that no one on this Committee condones any of 

these lapses or feels that it is not urgent that they be corrected and 

corrected as quickly as possible. We are also grateful that this 

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Committee requested this audit. Because, Mr. Fine, through your 

good work, we were able to find out what these problems were so 

that we can correct them. 

The other thing, Ms. Caproni, you have been asked to take a lot 

of messages back to the FBI, all of which are good and valid messages. But another one I want to ask you to take back today is 

that, although the FBI messed up in handling the NSLs, I want 

you to take a message back to those agents in the field, who I know 

are working around the clock; they are away from their families a 

lot of the time, and thank them for not messing up on what Mr. 

Fine said was one of their key missions and that was to detect and 

deter terrorism and espionage in this country. Because if you had 

messed up on that one, we would have a lot more people in this 

room and a much harsher hearing than we are having today. 

The other question I would like to ask either of you to respond 

to: Do either of you have any evidence today that anyone in a supervisory position gave instructions, either expressly or impliedly, 

to any person under his or her supervision to misuse the NSLs? 

Ms. CAPRONI. Not to my knowledge. 

Mr. FORBES. Mr. Fine. 

Mr. FINE. We did not find that evidence. We did not find that 

there was an intent by people who knew they were misusing it to 

misuse it. So, no. 

On the other hand, we did not do a thorough review of what people up and down the line knew and did, so we reported what we 

found. 

Mr. FORBES. That is being conducted, as I understand it, now, is 

that correct? 

Ms. CAPRONI. Correct. 

Mr. FORBES. And if you find that information you will present 

that back to the Committee, correct? 

Ms. CAPRONI. Absolutely. 

Mr. FORBES. The second question for either of you: Is there any 

evidence that any member of the FBI or the Justice Department 

provided any information either orally or in writing to this Committee or to Congress which they knew to be inaccurate or false? 

Ms. CAPRONI. Not to my knowledge. 

Mr. FORBES. Mr. Fine, you don’t have any? 

Mr. FINE. I don’t have that information, no. 

Mr. FORBES. Just the balance that we have talked about, we 

know the harm that comes from violation of privacy interests of our 

citizens, that is huge. But I wish you would go back—and, again, 

just take a minute—and talk about what Mr. Fine has put in here 

about—says: These tools are indispensable to the FBI’s mission to 

detect and deter terrorism and espionage. 

We know there has been a lot on your plate since 9/11 and you 

have had to do that. Can you tell us, with as much specificity as 

you can, exactly how these NSL letters have helped to do and accomplish that mission? 

Ms. CAPRONI. Again, National Security Letters provide the basic 

building blocks of an investigation. Starting with phone records, 

phone records are critical to the counterterrorism agents to figuring 

out who was connected to whom; and that permits us to trace foreign terror acts that have occurred, obviously, since 9/11 and trace 

247

them in to individuals who are in the United States and to determine whether those individuals are up to no good or, in fact, it is 

just an innocent connection. But for National Security Letters, I 

don’t know how we would do that. 

They have also been absolutely indispensable in the area of terrorist financing. We have done a tremendous amount of work getting bank records on individuals we believe are funneling money to 

foreign terrorist organizations overseas. Again, without National 

Security Letters, could we go through a FISA order? We probably 

could, but we certainly couldn’t do that very efficiently. So a National Security Letter is an efficient way for us to get the basic 

building blocks of an investigation. 

Mr. FORBES. Have they stopped any terrorist attacks that you 

know of that could have possibly happened in the United States? 

You may not have that information. 

Ms. CAPRONI. I am sorry, I don’t. 

Mr. FORBES. Thank you both. 

Mr. Chairman, I yield back the balance of my time. 

Mr. CONYERS. I thank the gentleman. 

The Chair recognizes Stephen Cohen, the gentleman from Memphis, Tennessee. 

Mr. COHEN. Thank you, Mr. Chairman. Stephen, yes. You can 

call me Stephen. 

Mr. CONYERS. Stephen. 

Mr. COHEN. Thank you, sir. 

Mr. Fine, did you do any study of the people whose records were 

looked at illegally for any similarity in demographics? 

Mr. FINE. No. We looked at whether they were U.S. persons or 

non-U.S. persons, but within those persons we did not look at the 

demographics of those individuals. 

Mr. COHEN. Ms. Caproni said they were all with investigations 

that were ongoing. Did you find that to be true, also? 

Mr. FINE. We could not verify that they were all connected to an 

ongoing investigation. I know the FBI is trying to do that now. But 

as part of our audit we could not do that, all that. 

Mr. COHEN. Do you think it might be a good idea to look at those 

people to see if there are any demographic consistencies, if there 

is a group of the American public that might be looked at in a closer manner than others and that might——

Mr. FINE. It is possible. That would be quite an undertaking, and 

one has to realize a lot are not on individuals but are on telephone 

numbers. There are certainly consumer credit reports and other 

things that do relate to individuals. So that kind of review is possible but incredibly intensive and requires additional resources 

while we are trying to comply with this Committee’s and the 

Congress’s directive to do a review of the use of them in 2006 according to the guidelines that were set out here. 

Mr. COHEN. Thank you. 

Ms. Caproni, you said that these were all tied to investigations, 

is that correct? 

Ms. CAPRONI. I said I believe that they are all tied to investigations, and that is what we are trying to work through with that 

unit now. 

248

Mr. COHEN. If you find that they are not tied to investigations, 

could you make a report to this Committee of who those individuals 

were and why they were—their records were sought when they 

weren’t tied to investigations? 

Ms. CAPRONI. Yes, we will provide this Committee with what we 

find through the course of that special inspection. 

If I could just say, though, so there is no misunderstanding, the 

unit at issue typically gets simply a telephone number. So they 

don’t know—that is part of with what they are charged of finding 

out, is who belongs to this telephone number, what are the toll billings, records for this number. So the name of the person associated with the phone number is typically not part of what CAU 

does. 

And for the exigent letters, to my knowledge—again, the special 

inspection will reveal much more in terms of the ins and outs of 

what they were doing—they were working off of telephone numbers 

and not off of names. 

Mr. COHEN. In the report, it says that some of these violations 

demonstrated FBI agents’ confusion and unfamiliarity with the 

constraints on National Security Letter authorities. Other violations demonstrated inadequate supervision over the usage of these 

authorities. 

This is from Mr. Fine’s statement. 

Ms. Caproni, do you think that these are maybe indices of a systemic problem with the FBI, where the agents have confusion and 

unfamiliarity with other policies and other laws? And, if so, are you 

doing something about it? 

Ms. CAPRONI. Congressman, that is exactly what I am concerned 

about. 

In the discussions that we have had—and I can tell you that we 

have had a lot of soul searching at the FBI since then. We got an 

F report card, and we are just not used to that. So we have had 

a lot of discussions about this. 

One concern is, are we—most of the agents grew up—the agents 

my age at the FBI all grew up as criminal agents in a system 

which is transparent, which if they mess up during the course of 

an investigation they are going to be cross-examined, have a Federal district judge yelling at them. The national security side occurs 

largely without that level of transparency. 

Our concern is and what this report has shown us is that we 

have simply got to do a better job making sure that, although the 

actions that are taken in national security investigations are typically taken in secret and they don’t have the transparency of the 

criminal justice system, that that imposes upon us a far higher obligation to make sure that we have a vigorous compliance system, 

that we have in place the training that is necessary, that we restrain agents, that when agents are working in this area we make 

sure they know. 

Mr. COHEN. I think that is what we need. I appreciate your candor. 

There is some signage in the Capitol and one is a statement by 

Brandeis, something to the effect that the greatest threats to liberty come from insidious men of zeal, well-meaning but without 

knowledge or understanding. 

249

I think that you will find that if our agents, our FBI agents, even 

though well-meaning and zealous, don’t know what they are doing, 

that it is a threat to people having faith in the whole system. I 

hope you will correct that. I feel confident you will. 

Ms. CAPRONI. You are absolutely correct. We will. 

Mr. COHEN. Thank you. 

Mr. CONYERS. I thank the gentleman, Steve Cohen. 

The Chair recognizes now the gentleman from Virginia, Bob 

Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman, and thank you for 

holding this hearing. 

Ms. Caproni and Mr. Fine, thank you for your testimony today. 

These are very serious concerns, and we appreciate your helping us 

understand how they occurred, why they occurred, and what is 

being done to correct them. 

I have several questions I would like to ask, starting with you, 

Ms. Caproni. 

In Mr. Fine’s report on page 8, paragraph 3, he notes, ‘‘In addition, we found that the FBI had no policy requiring the retention 

of signed copies of National Security Letters. As a result, they were 

unable to conduct a comprehensive audit.’’

Can you explain why something as important and serious as a 

National Security Letter would not have a signed copy retained in 

the records of the Bureau? 

Ms. CAPRONI. I can say that there were different processes in different field offices; but, no, I cannot. I mean, there is just no reason 

why there was not a policy that said you have to keep a copy of 

the signed copy. 

What we keep, which is typical of how our records are, is the carbon copy, in essence, which is typically initialed. 

But, no, in the world of Xerox machines, there is no reason why 

we had not told people to hang on to a signed copy. 

Mr. GOODLATTE. Mr. Fine, did you draw any further conclusions 

from that? Do you know why they were not retained? 

Mr. FINE. They were not retained because there was not a clear 

policy that was enforced. 

Mr. GOODLATTE. No ulterior motive that you know of? 

Mr. FINE. I do not believe there was an ulterior motive, but this 

was an example of an incredibly sloppy practice that was unacceptable. 

Mr. GOODLATTE. I agree. 

Let me ask you, when did you first learn of the problem with the 

FBI’s improper use of the exigent letters? 

Mr. FINE. Well, we began our audit, as required by the PATRIOT 

Reauthorization Act, around the beginning of 2006. As you can see 

from this report, there are a lot of issues, and we did interviews 

and document requests and field files. 

I think sort of the first indications where we learn about it were 

in the spring or summer of last year, where we had to work 

through those issues. 

Mr. GOODLATTE. And who did you learn that from? 

Mr. FINE. We learned it from, I believe, people in the Office of 

General Counsel, the National Security Law Branch of the FBI, 

about these issues. I think they are the first people we learned it 

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from, as well as from the review of documents and e-mails and 

things like that. 

Mr. GOODLATTE. And what steps have you taken to ensure that 

the practice was stopped? 

Mr. FINE. The steps we have taken are to inform the FBI about 

the unacceptability of this practice, to note it, to report it, to let the 

people who are in charge of the FBI and the General Counsel’s Office know about it, and to make a recommendation that it does 

stop. 

Mr. GOODLATTE. When did you make that recommendation? 

Mr. FINE. I think we made the recommendation when our report 

was issued to the FBI in draft; and I think that was in either December or January of this year. It was December of last year or 

January of this year. 

Mr. GOODLATTE. Ms. Caproni, has that practice been stopped? 

Ms. CAPRONI. Yes. 

Mr. GOODLATTE. What steps have you taken to ensure that it 

does not persist in any of the offices of the FBI? 

Ms. CAPRONI. Well, first, we are trying to find out whether it did 

happen in any office other than the unit at headquarters, and we 

should know that answer probably by the end of this week or sometime next week. 

The second thing is that the practice of providing a letter with 

a promise of future legal process has been banned. And, again, we 

are also developing a vigorous compliance program to make sure 

that we do not simply make the rule, but we actually have in place 

some kind of process to make sure that the rules are being followed. 

Mr. GOODLATTE. Current law authorizes a full credit report request for only counterterrorism investigations. The Inspector General discovered two instances in the same field office of a full credit 

report request under counterintelligence investigations. 

How is this being corrected? 

Ms. CAPRONI. This is being corrected by—the deputy director ordered a full audit of every counterintelligence file that has been 

opened since January 1, 2002. This authority went into effect in 

the PATRIOT Act. So, realistically, we think the earliest one that 

could have been issued would have been in 2002. 

So they have to review every file since then in which a Fair 

Credit Reporting Act NSL was issued and find out if they have any 

full credit reports. If they do, they need to remove them from their 

files and report it as a potential IOB violation. Those will, in turn, 

be reported on to the IOB. 

Mr. GOODLATTE. One last question. 

In at least one instance, a National Security Letter issued under 

the Electronic Communications Privacy Act was determined by the 

Inspector General to be seeking content. 

How was this remedied, and what steps do your field agents take 

to delineate between content and transaction information? 

Ms. CAPRONI. In that case, there was no need to remedy it because the Internet service provider refused to provide us with any 

records, so we actually did not have an overcollection. 

Mr. GOODLATTE. Have you remedied the request? I mean, they 

should not be asking for that. 

251

This was a big issue when we wrote the PATRIOT Act, and it 

was the subject of a great deal of discussion with the Administration about making sure that we had a clear line between what 

could be requested and what could not be requested. 

Ms. CAPRONI. The statute defining electronic communications 

transaction records actually does not define the term, and there 

had traditionally been the debate that says that we will leave up 

to the ISP what is content and what is not. 

We think that is a trap for the unwary. It is bad for our agents 

in that we do better with bright lines. And so OGC will establish—

we are in the process of making sure that we have a list that 

makes sense of what is content and what is not. 

In the abstract, that seems like a very clear line; in practice, it 

is not. There are some difficult issues because some of the answers 

revolve around how the ISP keeps their records. 

So we are working on it. My anticipation is that, within the next 

week or two, we will have out to the field these records you can 

seek, these records you cannot seek, and it will be a very bright 

line. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. CONYERS. The gentleman from Georgia, Mr. Hank Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

In these reports that I have read, it indicates that there were 

three phone companies that the FBI, particularly the FBI Communications Analysis Unit, the CAU, contracted with three telephone 

companies between May of 2003 and March of 2004. Who were 

those telephone companies? 

Ms. CAPRONI. The telephone companies were AT&T, Verizon and 

MCI, which has now been acquired by Verizon. 

Mr. JOHNSON. Now, are those contracts still in force at this time? 

Ms. CAPRONI. Yes, they are. 

Mr. JOHNSON. And are there any other phone companies that are 

contracted with the FBI through the Communications Analysis 

Unit or any other unit of the FBI? 

Ms. CAPRONI. Not through the Communications Analysis Unit; 

broader than that, I do not know. We may have contract—not for 

this sort of information. We may have other contracts with phone 

companies, but not like this. 

Mr. JOHNSON. And nobody put a gun to these telephone companies’ heads and made them sign the contracts, did they? 

Ms. CAPRONI. No. 

Mr. JOHNSON. They were just simply agreements with the FBI 

and with the phone company? 

Ms. CAPRONI. Correct. From our perspective, because these originated—given the volume of our requests, that this permitted us to 

get our records very quickly. 

Mr. JOHNSON. Well, I understand. 

Then the phone companies received compensation for engaging in 

this contract with the FBI; is that correct? 

Ms. CAPRONI. That is correct. 

Mr. JOHNSON. And this compensation, was it merely for expenses 

or was there profit involved, or you have no way of knowing? 

Ms. CAPRONI. I do not know. 

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Mr. JOHNSON. Really, you do not really care as long as you get 

the information, correct? 

Ms. CAPRONI. Again, from our perspective, the goal was to get 

the information in a form that is readily usable for us so that we 

do not have—some phone companies give us paper records. That 

requires a lot of data. 

Mr. JOHNSON. Okay. All right. I understand. 

Earlier in your testimony, ma’am, you stated that the phone companies were responsible for a lot of the errors that are cited in the 

compliance with the National Security Letters. 

Ms. CAPRONI. We do see third-party errors, correct. 

Mr. JOHNSON. You saw a substantial number, and so you are 

placing upon the phone company the obligation to properly document whether or not there has been a follow-up with an exigent 

letter? 

Ms. CAPRONI. Oh, no, sir. They are two separate things. I do not 

excuse our lack of recordkeeping in connection with the exigent letters. They did keep the records, which was fortunate. 

Mr. JOHNSON. And it is important to note, Mr. Fine, that your 

analysis of the FBI’s compliance with the PATRIOT Act found that 

there were woefully inadequate mechanisms for the collection of 

data on these National Security Letters. In other words, the recordkeeping by the FBI was woefully inadequate as far as the issuance 

and follow-up on these National Security Letters and also the exigent letters; isn’t that correct? 

Mr. FINE. We did find serious and widespread misuse and inadequate recordkeeping, absolutely. 

Mr. JOHNSON. Do you have any idea, Mr. Fine, how much the 

telecommunications companies were paid for their so-called ‘‘contract’’ with the Government? 

Mr. FINE. I do not know, no. 

Mr. JOHNSON. All right. 

Can you, Ms. Caproni, provide my office with that information, 

along with copies of the contracts between the CAU and the phone 

companies? 

Ms. CAPRONI. I have great confidence that we are going to get 

a number of questions for the record after this, and I am assuming 

that will be one of them, and we will respond appropriately. 

Mr. JOHNSON. Will it take a subpoena for us to get that information? 

Ms. CAPRONI. I do not believe so. I do not know what is in the 

contract, so I do not know if there are any sensitive issues. 

Mr. JOHNSON. Will you provide it to my office? 

Ms. CAPRONI. Again, we will respond to questions for the record 

as they come in. 

Mr. JOHNSON. All right. 

Why, if the NSLs are the FBI’s bread-and-butter investigative 

technique, could the Inspector General only identify one terrorism 

prosecution out of the 143,074 people whose investigatory information was obtained? 

Ms. CAPRONI. Again, Mr. Fine can explain his methodology, but 

I think the issue and the difficulty of that question is that because 

there was no congressional—because we were not legally obligated 

to tag the data, tracing it through is difficult. 

253

Mr. JOHNSON. So 1 out of 143,000. 

How does that equate to being the bread-and-butter investigative 

technique for uncovering terrorism by the FBI? 

Ms. CAPRONI. Again, we disagree that in only one case did NSL 

data contribute to a criminal prosecution. 

Mr. JOHNSON. But would you say more than 10 or less than 10? 

Ms. CAPRONI. I do not know. It is my belief that virtually every 

counterterrorism case that began in its normal course of affairs is 

likely to have a National Security Letter used sometime during it. 

Mr. JOHNSON. And it is also——

Mr. CONYERS. Your time has expired. 

Mr. JOHNSON. Thank you. 

Mr. CONYERS. Mr. Johnson, any records that you request will 

come to the Committee, and then you will be advised. 

The Chair is pleased now to recognize the gentleman from Florida, Mr. Tom Feeney. 

Mr. FEENEY. Thank you very much, Mr. Chairman. 

Earlier, Mr. Smith alluded to your illustrious basketball career. 

I went to the same high school as Mr. Fine. He graduated a few 

years before me, and I wish I had had a jump shot like Mr. Fine 

did, but not nearly so much as I wish I would have been able to 

hit a fast ball like Mr. Reggie Jackson, who graduated a few years 

before Mr. Fine did. 

But we thank you for your work. By the way, none of us is the 

most famous graduate because Benjamin Netanyahu, the former 

Prime Minister of Israel, is. I had to get that plug in. 

We are very grateful for your work here, because a lot of us are 

supporters of the PATRIOT Act, but only with some serious restrictions. And I guess the first question I want to ask you—and I want 

to remind people that it was the reauthorization of the PATRIOT 

Act that actually required the report that you have just completed; 

is that right? 

Mr. FINE. Yes. 

Mr. FEENEY. And I hope that not just your report but the tenor 

of the questions from supporters of the PATRIOT Act, as well as 

the critics, is being listened to very carefully in the Justice Department and in the FBI. 

We have got to get this balance correct; and nothing could be 

more critical because some of the most unthoughtful critics of the 

PATRIOT Act candidly will be the first ones—when there is another 9/11 and when we do not get the information accurately 

ahead of time to stop, maybe not 3,000 or 4,000 people, but 300,000 

or 400,000 people, they will be the first ones jumping on the Administration, the Justice Department and the FBI for not doing its 

job. 

But those of us trying to strike a thoughtful balance between 

civil liberties and the need to protect America from this new threat 

are very, very concerned about what we have heard, and if the FBI 

does not take this to heart, we will correct the problem. 

I do not think anybody could have said it better than Jim Sensenbrenner, who, again, is a supporter of the PATRIOT Act, who 

said that the overreaching that is apparent here within the FBI is 

going to erode support, if it has not already, for very important national security initiatives. And I would hope that everybody down 

254

at Justice is listening because these are the supporters, people like 

Lungren, Feeney and Sensenbrenner, who are telling you this is 

not right, that it cannot continue. 

Mr. Fine, do you have an opinion as to whether or not the serious problems that you have discovered in initial compliance with 

the PATRIOT Act are largely because of ambiguities or poorly 

structured legislation? Is it statutory language that is the problem, 

largely, here; or is it abuses within the FBI and compliance? 

Mr. FINE. I do not think it was the statutory language that was 

ambiguous. I think it was the execution of the policy by the FBI 

that was woefully inadequate. 

Mr. FEENEY. Just to follow up, can you identify or do your report 

and investigation lead you to conclude that there are any important statutory improvements we can make? 

I realize it is not your typical arena to give us advice, but are 

there any specific pieces of advice that you would give the Congress 

in terms of oversight or statutory reforms here? 

Mr. FINE. Well, you are correct, it is not my arena to do that. 

What I try to do is present the facts to this Committee and to Congress and let the facts lead this Committee and Congress to do 

what they believe is appropriate. 

There is one section of the report that does talk about an ambiguity in the meaning of toll billing records. I think there ought to 

be something done about that, because that was a concern of what 

that meant, and it should be clarified. 

I do think——

Mr. FEENEY. Could the AG do that, by opinion? 

Mr. FINE. I do not think so. It has to be done by Congress. 

I do think that the Committee does need to strike a balance and 

to sort of balance the need for protections and controls over civil 

liberties with the need for tools to prevent and detect and deter terrorism. And that is the difficulty in this task, and that is the real 

concern that we have about how the FBI implemented this. 

Mr. FEENEY. You said you sampled 77 case files, the report indicates. How many case files are there all together, roughly? 

Mr. FINE. That I could not tell you. 

Mr. FEENEY. Do you believe that the 8,850 failed reportings are 

systemic and that, if you would extrapolate, we would probably see 

that elsewhere? 

Mr. FINE. I do believe that the files we looked at were a fair sample and that there is no reason to believe that it was skewed or 

disproportionate. We did not cherry-pick them. 

Mr. FEENEY. Do you have any reason to believe that there were 

more abuses in the 8,850 requests that were not properly reported? 

Is it any more likely for there to be abuses of civil liberties or of 

the law or of the AG’s rules than the requests that were properly 

recorded? 

Mr. FINE. Well, we do not know how many requests were not recorded in the FBI’s database. There were problems with the database structurally so that things were not in there. There were 

delays in entering in the database, so Congress did not get the information, and when we looked at the files, there were NSLs that 

were in the files that did not go into the database. 

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Approximately—I think it was 17 percent of the ones we found 

were not in the database. Now, that is a significant number; and 

now—I know the FBI is trying to find them in the database as we 

speak, but we have no confidence in the accuracy of that database. 

Mr. FEENEY. Finally, if I could, Mr. Chairman. 

Ms. Caproni, you alluded to the culture of the FBI, which traditionally, I find, is a crime-fighting institution. Some people have 

called for an N15 type of intelligence agency with a different culture, and it might be interesting that you take back the interest 

that some of us in Congress have, that if the FBI cannot change 

its culture or have a separate culture for intelligence than it has 

had traditionally, we very much need a different type of institution 

to get intelligence right, to protect this country on a day-to-day 

basis. 

Ms. CAPRONI. Again, I believe that we can do this. We are going 

to do this. We can get this right. We are going to get it right. 

Mr. FEENEY. Mr. Chairman, I yield back the balance of my time. 

Mr. CONYERS. Thank you. There was not any left. 

Mr. FEENEY. That is why I did it. 

Mr. CONYERS. I see. 

Okay, we are now going to recognize the gentleman from California, Mr. Adam Schiff. 

Mr. SCHIFF. Thank you, Mr. Chairman. 

Inspector General Fine, you have said that you did not find that 

any of the violations were deliberate or intentional, and yet, you 

also report the issuance of blanket NSLs, which, to me, appear to 

be an effort to cover up what was recognized to be a flawed 

issuance of these exigent letters. 

Given that NSL letters are supposed to be case-specific, the 

NSLs were a blanket violation of the law, weren’t they? How can 

they be described as unintentional or anything but deliberate? 

Mr. FINE. I think what you are referring to, Congressman Schiff, 

is the issuance of what we have heard about of blanket NSLs in 

2006. We have not reviewed 2006 yet. We reviewed 2003 to 2005. 

We have heard about this. It is past the review period, and we are 

concerned about it, and we will look at that. 

Mr. SCHIFF. Well, Ms. Caproni, in your briefing on the Hill last 

week, you acknowledged that when agents realized that they had 

been issuing these letters, these exigent letters, saying that subpoenas were forthcoming when they were never forthcoming, that 

blanket NSLs were issued as a way of basically trying to clear up 

or cover up or, in other words, make up for the failure to use correct processes in the past. 

Assuming those are the facts, Inspector, doesn’t that show a level 

of deliberateness and intention that far exceeds what you have described in your report? 

Mr. FINE. It certainly shows us concern of what were they thinking. They clearly were not following the procedures. They clearly 

were not providing NSLs in advance or even, quite reasonably, 

soon thereafter; and it did give us concern. 

And there were a lot of people who did this. It was done as a sort 

of routine practice which is, in our view, completely unacceptable. 

But I think it is important for the FBI to look at this and to interVerDate 0ct 09 2002 15:28 Aug 01, 2007 Jkt 000000 PO 00000 Frm 00259 Fmt 6633 Sfmt 6601 H:\WORK\FULL\032007\34175.000 HJUD1 PsN: 34175
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view these people and find out what happened up and down the 

line. And we will be looking at it, as well, in 2006. 

Mr. SCHIFF. Well, even as to the false statements themselves, in 

these exigent letters that said that subpoenas were forthcoming 

when they were not, let me ask you, Ms. Caproni, if a local cop in 

the city of Burbank in my district wrote letters to the phone company, or went out and served letters on the phone company, saying 

that Federal grand jury subpoenas would be forthcoming, because 

that local cop wanted to get information that maybe he could not 

get another way, or could not get as quickly another way, and you 

learned about this practice, that cop would be under Federal investigation, wouldn’t he? 

Ms. CAPRONI. Congressman, I really do not know that. I do not 

think you have given me enough facts to say whether that would 

or would not be the case. 

Mr. SCHIFF. Well, a local police officer acting under the color of 

Federal law, demanding records, claiming a Federal process that is 

nonexistent, that would not be an issue for a Federal investigation? 

Ms. CAPRONI. It would certainly be troubling, much as the practices that were taking place in the CAU unit are troubling. 

Mr. SCHIFF. Well, you know, having worked in the Corruption 

Section of the U.S. Attorney’s Office in L.A., I can tell you it would 

be more than troubling. You would have FBI agents assigned to investigate that local cop. 

It does not seem to me to be any different to have FBI agents 

giving telecommunications providers letters saying that subpoenas 

are forthcoming when they are not. 

When did your office discover that these old New York form letters were being used to get information? 

Ms. CAPRONI. Sometime in 2006. 

Mr. SCHIFF. You know, there is a report in The Washington Post 

that indicates the head of the Communications Analysis Unit, the 

same unit that drafted most of these letters, warned superiors 

about the problems in early 2005. 

Do you know anything about that? 

Ms. CAPRONI. I know what I have read in the paper, and I know 

that the Inspection Division is going to do a full inspection of this 

to see what exactly the unit chief said. 

Mr. SCHIFF. Well, I am asking you to go beyond what you have 

read in the paper, and we all know what the IG is going to do. 

When did you first learn about the fact that the head of the unit 

that was drafting these letters had warned superiors—do you know 

who those superiors are? 

Ms. CAPRONI. I do not know who he says he warned. 

Mr. SCHIFF. Were you warned by him? 

Ms. CAPRONI. No. 

Mr. SCHIFF. Do you know if anybody in your office was warned 

by him? 

Ms. CAPRONI. I am not sure that I even necessarily agree that 

there was a warning. I know that there were—and I knew generally that there were what I understood to be bureaucratic issues 

within that unit. That did not include——

Mr. SCHIFF. You keep on describing these bureaucratic issues. I 

find an interesting kind of mix of an acceptance of responsibility 

257

in your statement and a denial of responsibility. You seem to accept responsibility for mistakes others have made, but acknowledge 

very little responsibility on behalf of the office you run. 

It is primarily your office that is intended to advise the agents 

about how to comply with the law, particularly in an area where 

the courts are not scrutinizing it, as you pointed out, in a process 

that lacks transparency. 

Isn’t that fundamentally the job of your office? 

Ms. CAPRONI. That is fundamentally the job of my office. 

Mr. CONYERS. The time of the gentleman has expired. 

The Chair recognizes Louie Gohmert of Texas. 

Mr. GOHMERT. Thank you, Mr. Chairman. I appreciate that. 

I am very pleased that when we renewed the PATRIOT Act, we 

did insert the provision that would require this Inspector General 

report so that we could find out this information that is so very important. 

In your report, your indications, Mr. Fine, were that the FBI did 

not provide adequate guidance, adequate controls, or adequate 

training on the use of these sensitive authorities; and that oversight was inconsistent and insufficient. 

Ms. Caproni, as I understood Director Mueller to say last week, 

he took responsibility for the lack of training and experience, and 

that troubled me a great deal. You had indicated earlier that people of, I guess, our generation and especially those in the FBI had 

grown up with accountability, knowing they could be cross-examined. And yet, it seems that the overzealousness that Mr. Cohen 

spoke of often is found in maybe new agents who do not have the 

time on the ground, the experience. 

Wouldn’t you agree that is sometimes found in newer agents who 

lack the training and experience? 

Ms. CAPRONI. I do not know in this case if this is an issue of 

young agents versus old agents. I just do not know the answer to 

that. 

Mr. GOHMERT. Well, are you familiar with the new personnel policy that this Director instituted in the FBI that is affectionately, 

or unaffectionately, called the ‘‘up or out policy’’? 

Ms. CAPRONI. Yes, sir, I am. 

Mr. GOHMERT. You know, I appreciate the Director last week 

saying that we welcome more oversight; I appreciate your openness 

in that regard. But just in my couple years of being in Congress, 

it seems to me that the FBI, at the very top at least, was not interested in oversight and was set on intimidating anybody who really 

wanted to pursue that. 

I know we have one Member of Congress, a former FBI agent, 

who had indicated to me that—because many of us who are very 

familiar with many FBI agents, we have been hearing that this 

policy was causing the FBI to lose some of their best supervisors. 

The policy is basically—as I understand it, once you have been 

a supervisor for 5 years, then you either have to move up to Washington or move out, that you cannot be a supervisor; and that we 

have lost many of our best supervisors, and we just put new, inexperienced people in supervisory capacities. And this was something 

that Mike Rogers, a former FBI agent and a Member of Congress, 

wanted to talk to someone about; and when he finally was able to 

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get somebody to agree, in a supervisory position, he goes back to 

his office and his whole office staff is out in the hall because the 

FBI has come over and done a sweep of his office that was really 

unnecessary, and it seemed to be more about intimidation. 

One of the most outspoken critics of the FBI in the last couple 

of years has been Curt Weldon, and we know that, back in September-October, the FBI announced, well, gee, he is under investigation just at a perfect time to get him defeated. And so it seems, 

when we find out that there are all of these 143,000 letters that 

were inappropriately requested and that, gee, somebody asked 

tough questions of the FBI personnel and they may very well be 

the 143,000 and first letter in the next batch inquiring about their 

own records, that there has not been this desire for oversight, but 

there has been quite some intimidation. 

So I am curious, has there been any revisiting of this up-or-out 

policy to get rid of the best trained and experienced supervisors 

since this lack of training and experience and inadequate guidance 

and controls have come to light? 

Ms. CAPRONI. Congressman, the period of time covered by Mr. 

Fine was at a period of time when those supervisors would have 

still been in place. What we have seen, actually, is that the 5-year 

up-or-out has encouraged people to bid for and seek promotion to 

higher positions, which has been a net positive. 

Now, I know that you have an interest in this, and I know that 

there were agents who were not happy about the policy. The Director feels very strongly that it is an appropriate policy, that it does 

move good supervisors up in management so that they have a 

greater span of control, so that we can further benefit from the 

skill sets that they have from their tenure at the Bureau. 

Mr. GOHMERT. So the answer is, no, you are not revisiting the 

policy? Is that your answer? 

Ms. CAPRONI. That is correct. 

Mr. GOHMERT. Okay. I just wanted to weed through and get to 

the answer. Thank you. 

Now, with regard to these letters, it is deeply troubling because 

we have been hearing about how important they were in order to 

get this information. But you know—I mean, we had assurances 

from everybody from the AG on down that there was adequate 

oversight, that there was adequate training. 

What suggestions—since you are not changing any personnel 

policies, what actual structural policies within the FBI are going to 

change to make sure that there would be adequate oversight just 

in case the NSLs were allowed in the future? 

Ms. CAPRONI. Again, we are going to do substantially more training. Agents are now being placed into career paths, and they are 

going to be required, after their time at Quantico, to return to 

Quantico for sort of a postgraduate period. That will have extensive 

training for those agents who are on the national security career 

track. 

We are also implementing an auditing practice that will include 

Department of Justice lawyers, inspectors from the FBI, and FBI 

lawyers to go out and methodically audit the use of the National 

Security Letters. 

259

More generally, we are going to create a compliance program 

within the Bureau that will be interdisciplinary, and it will make 

sure that—not just with National Security Letters. I mean, this is 

one tool, and it is a tool that, as indicated in this report, we need 

better controls on. Our concern is that there may be other things 

that we need to make sure that we have gotten better controls on, 

that we think we have given perfectly clear guidance on, but in 

terms of execution in the field, we have got some problems. 

So, again, I cannot say enough that we take this report extremely seriously. We know we have got issues. We know we have 

got problems. The Director and upper management are absolutely 

committed that we are going to fix this. 

Mr. CONYERS. Your time has expired. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

Mr. CONYERS. Mr. Artur Davis from Alabama is recognized. 

Mr. DAVIS. Thank you, Mr. Chairman. 

Ms. Caproni, give me your best legal assessment. Would the exclusionary rule apply to any evidence obtained from the improper 

issuance of these letters? 

Ms. CAPRONI. Probably not, but I have not, quite frankly, given 

that a great deal of thought. It is not a fourth amendment violation. The exclusionary rule clicks in when you have got a fourth 

amendment violation. These records are being held by third-party 

businesses, so it is not a fourth amendment problem. 

Mr. DAVIS. Well, would there not be fourth amendment implications if information were obtained as a result of the improper use 

of Federal statutory authority? 

Ms. CAPRONI. There would be other problems, but I do not think 

there is a fourth amendment problem. 

Mr. DAVIS. Well, do you think that there would be a practical 

problem? 

A classic hypothetical: If a National Security Letter were improperly issued, and it turned out later on there was perhaps a valid 

basis for the issuance of a warrant, wouldn’t that possibly be compromised or wouldn’t the emergence of a valid basis later on be 

compromised by the misuse of an NSL? 

Ms. CAPRONI. Again, I am always leery of responding to 

hypotheticals. All I can say is, there is no—we are not minimizing 

this. We do not want any improper use——

Mr. DAVIS. So you are not sure. Let me follow up on Mr. Schiff’s 

questions. 

Are you familiar with the name Bassem Youssef? 

Ms. CAPRONI. Yes, sir, I am. 

Mr. DAVIS. Mr. Youssef, as I understand it, was in charge of the 

Communications Analysis Unit at the Bureau; isn’t that right? 

Ms. CAPRONI. He was, beginning in the spring of 2005. 

Mr. Davis. Is it accurate that Mr. Youssef raised concerns about 

the misuse of the NSLs to his superiors? 

Ms. CAPRONI. That will have to be determined through the inspection. I do not know the answer to that question. 

Mr. DAVIS. Well, you know that that has been reported, and I assume, Mr. Fine, neither you nor Ms. Caproni has any basis to dispute what Mr. Youssef’s lawyers are saying about his making that 

report. 

260

Ms. CAPRONI. I would note that Mr. Youssef is in litigation with 

the FBI. 

Mr. DAVIS. That is not what I asked you. I asked you if you had 

any basis to dispute this report. 

Ms. CAPRONI. I do not know one way or the other. 

Mr. DAVIS. Mr. Fine, do you have a basis to dispute that there 

were complaints raised by the former head of the Communications 

Analysis Unit? 

Mr. FINE. We did not review what he did, what he——

Mr. DAVIS. Mr. Fine, how is it possible that you did not review 

the fact that the former head of the unit raised questions about the 

misuse of the NSLs? How is it remotely possible that was not reviewed? 

Mr. FINE. We reviewed what happened in that unit and what 

was issued; and we did review the discussions that occurred between the Office of General Counsel, and that included——

Mr. DAVIS. Mr. Fine, the head of the unit—not a secretary, not 

an intern, not a line officer—but the head of the unit raised concerns. How is it possible that you did not conduct an interview of 

Mr. Youssef? 

Mr. FINE. We did interview Mr. Youssef, and we did not hear 

that concern from him. And, in fact, from the interview of Mr. 

Youssef and also from the review of the records, we saw that he 

had signed a letter. And many letters were signed——

Mr. DAVIS. Are you disputing that Mr. Youssef complained about 

the improper issuance of NSLs? 

Mr. FINE. To his superiors? 

Mr. DAVIS. Yes. 

Mr. FINE. I do not know that. I do know——

Mr. DAVIS. Did you ask him? 

Mr. FINE. I do not believe we—I am not sure whether we asked 

that question, but——

Mr. DAVIS. Mr. Fine, how do you possibly not ask the head of the 

unit if he had any concerns about whether or not the statute was 

followed? How does that possibly not come up as a question? 

Mr. FINE. We did ask him, and we questioned him extensively, 

our attorneys did, about the communications between the Office of 

General Counsel, which was that——

Mr. DAVIS. Well, did he say that he raised questions? 

Mr. FINE. Not that I am told, no. 

Mr. DAVIS. Not that you remember or not that you were told? 

Which one? 

Mr. FINE. Well, I actually did not do the interview, but let me 

just check. 

[Brief pause.] 

Mr. DAVIS. While you are working on the answer to that, Mr. 

Fine, the rather obvious observation is that I hope that your time 

to get the answer is not taken out of my time. 

If you have the head of the Communications Analysis Unit raising questions about how that unit does its work, it is a little bit 

amazing to me that you are having to search your memory as to 

what happened during the interview. 

But let me move on. 

Mr. FINE. Well——

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Mr. DAVIS. Is it true—well, my time is limited, Mr. Fine. 

Is it true that Mr. Youssef won the Director of Central Intelligence Award in 1995 for his work infiltrating the group that tried 

to blow up the Trade Center in 1993? 

Mr. FINE. I have heard that. 

Mr. DAVIS. Do you have any reason to dispute it? 

Mr. FINE. No. 

Mr. DAVIS. Is it true that Mr. Youssef was the legal attache to 

Saudi Arabia during the time that the Khobar Towers bombing 

was being investigated? 

Mr. FINE. I have no reason to dispute that. 

Mr. DAVIS. Is it true that Mr. Youssef received outstanding personnel evaluations during that time? 

Mr. FINE. I have no reason to dispute that. 

Mr. DAVIS. So you have someone who was the head of a unit, 

who had won awards for his intelligence work, who apparently received superior evaluations, raising concerns about how his unit 

was being conducted; is that accurate? 

Mr. FINE. I am not sure it is accurate. I am not——

Mr. DAVIS. What is inaccurate about it? 

Mr. FINE. What is inaccurate is that it is not clear what concerns 

he raised and what he did to stop this. And we did look——

Mr. DAVIS. Again, Mr. Fine—I know my time is up. If the Chairman would indulge me for one question. 

I guess I am searching for what is opaque about this. This gentleman was in a very important position; he was in charge of the 

unit. You admit that you interviewed him, but your memory seems 

foggy as to what you asked him, and your memory seems foggy as 

to whether or not he raised concerns to his superiors and what the 

concerns were. 

I cannot imagine a more important interview that you could have 

conducted. 

Mr. FINE. We did conduct that interview, and we went over extensively what the concerns were between him and the General 

Counsel’s Office and the attempts to put the exigent letters——

Mr. DAVIS. Who did he raise these concerns with? 

Mr. CONYERS. The gentleman’s time has just about expired. 

What I would like to do is to give the Inspector General an opportunity to fully finish his answer. 

Mr. FINE. We did interview Mr. Youssef, Congressman, and we 

did not find that, as a result of his actions, the problems were corrected. We did find, through review of the NSLs, that he signed 

one, that under his leadership these exigent letters continued; and 

we saw the efforts between the Office of General Counsel and the 

CAU to correct this, which did not occur, and we did not see that 

he put a stop to this. 

However, we did not do——

Mr. DAVIS. Was he of the power to put a stop to it? 

Mr. FINE. He was the head of the unit. 

Mr. CONYERS. Just a moment. If my colleague will suspend, I 

want him to be able to complete his answer before we go on to the 

next Member. 

262

Mr. FINE. We did not see that this practice was stopped during 

his time. There was an attempt to sort of provide NSLs reasonably 

soon after the exigent letters, but the exigent letters continued. 

And it is important to determine who did what, when and how; 

and the FBI is going to do that, and we are going to look at that 

very carefully, as well. But our review was not to look at 

everybody’s actions up and down the line, including his or others’ 

to determine what steps each one of them took. 

What we tried to do is present the problem and the issue and 

make sure that it stopped as a result of it. 

Mr. CONYERS. The gentleman’s time has expired. 

The Chair recognizes Darrell Issa, the gentleman from California. 

Mr. ISSA. Thank you, Mr. Chairman. 

I guess I will start off slowly and just follow up on Mr. Gohmert 

for a second. It does seem amazing that an organization of excellence, as the FBI has historically been, would adopt a ‘‘We have got 

to get you to the Peter Principle achievement level with this upor-out policy,’’ and I would strongly second Mr. Gohmert, what I 

think he was saying, which is, if you have people who can be very 

good at what they do at the beat levels, so to speak, of the FBI in 

various positions—if they can, in fact, be superb leaders at a level 

that they are comfortable and, quite frankly, in a community that 

they are comfortable living and working in and building more capability, rapport and analysis capability and you adopt an up-or-out 

program—what you do is, you force them either to leave because 

they do not want to leave communities they are attached to or, 

quite frankly, you force them to a management level they may not 

be comfortable with. 

It is bad enough that the Army will not allow a great company 

commander to continue being a company commander and must 

force them to a staff position somewhere where they endlessly see 

papers in the hopes that they someday will get a battalion command, but there is a certain amount of history there. 

I strongly suggest that the FBI should not have a history that 

people doing a good job at a given level be forced on. Having said 

that, that is a management decision that the next Administration 

hopefully will straighten out. 

Speaking of management decisions, General Fine, I am a little 

shocked that under this Attorney General, this Administration 

seems to look at violations of constitutional rights for limited capabilities that we have granted from this body, as the general counsel 

said, ‘‘troubling.’’

If what the FBI did was done by a private sector individual, 

wouldn’t the FBI be arresting them? Wouldn’t the U.S. attorneys 

be prosecuting people who played fast and loose with these rules? 

Mr. FINE. It depends on the intent involved and what happened. 

Mr. ISSA. Okay. Let me back up. 

If there were a pattern over time, as there is, of abuses piling 

up to where it was clear that people knew it was happening—even 

some people clearly made comments that it should not be happening, that it was inconsistent with the law, but it continued—

isn’t that a poster child for the FBI and for the U.S. Attorney’s Office to criminally prosecute people who do these things? 

263

Mr. FINE. Again, if there were an intent to do that as opposed 

to a pattern of negligence, and also a knowledge of this, and we 

went in and looked at it after the fact and found all sorts of problems and compiled a 126-page report which lays it out in black and 

white, and it is, you know, a serious, serious abuse. 

But at the time, were they aware of it? Did they know about that 

and what their intent was? That is much harder to say. We did not 

find evidence of criminal misconduct, but we certainly found evidence——

Mr. ISSA. Wait a second. Wait a second. 

Piling up evidence that crosses the guidance we allow to pile up 

that evidence, and you are saying that it is not criminal? 

Mr. FINE. Well, you have to look at the individual allegations as 

well. We looked at the files. We found in several files, in many 

files, that there were no abuses. We found in others that there 

were problems with them. 

Mr. ISSA. But there are no prosecutions and no dismissals; is 

that correct? 

Mr. FINE. Well, there are no prosecutions. The FBI is looking at 

the evidence right now to see what people knew and what they did 

not, whether it was because of any intentional conduct that they 

knew they were doing wrong. 

We did not see that, but we did not do a review where we asked 

each individual, ‘‘What did you do and why?’’ we did a review of—

an audit of this to lay out the problems for the Congress. 

Mr. ISSA. Well, I would suspect that I join the Chairman and 

many Members on both sides of the aisle in saying, I have serious 

doubts about whether or not the Congress can continue to extend 

capabilities that are not 100 percent adhered to and there are no 

significant results when they are not adhered to, and then not feel 

that what we are doing is giving the FBI the ability to violate people’s constitutional rights. 

You know, I heard today, well, geez, we would not exclude this—

and Congressman Schiff brought it out—we will not exclude this 

information even though we played fast and loose; and we will not 

dismiss and we will not prosecute. 

Well, with all due respect, from the Attorney General on down, 

you should be ashamed of yourselves. We gave—we stretched what 

we could give in the PATRIOT Act. We stretched to try to give you 

the tools necessary to make America safe, and it is very, very clear 

that you have abused that trust, and when the reauthorization of 

the PATRIOT Act comes up or any bill coming down the pike, if 

you lose some of these tools, America may be less safe, but the 

Constitution will be more secure, and it will be because of your failure to deal with this in a serious fashion. 

I yield back. 

Mr. CONYERS. Thank you very much. 

The Chair recognizes Keith Ellison, the gentleman from Minnesota. 

Mr. ELLISON. Thank you, Mr. Chair. 

Mr. Fine, I want to talk to you about your report recommendations starting with the exigent letters. 

Wouldn’t it be better simply to adopt the FBI’s practice, current 

practice, of simply banning the use of exigent letters? I notice that 

264

in your recommendations, or in what I believe are your recommendations, your suggestion is to take steps that the FBI not 

improperly use the letters, but why not just say ‘‘no exigent letters’’? 

Mr. FINE. Well, there should not be an exigent letter of the sort 

that they use. There is a process under the statute to get emergency information under certain conditions, and that is the way 

they ought to do it. So that is a proper use of such a request. 

They surely should ban the way they did it in the past. 

Mr. ELLISON. And that would be a change by statute or a rule 

change? 

Mr. FINE. Well, it does not need to be a statute. There is a statute that allows voluntary disclosure if there is an imminent threat 

and danger to the safety of an individual or others, and if there is 

that exigent circumstance, they can get the information and use 

such a letter. But what they should not do is combine it with an 

NSL the way they did it in the past. They ought to completely separate that and follow the statute. 

Mr. ELLISON. Right. So what you are saying is that the practice 

in which the FBI was using the exigent letters combined with the 

NSL was—if the statute were properly followed, then there would 

not be the problem that we see today; is that right? 

Mr. FINE. That is correct. 

Mr. ELLISON. Now, what sort of sanctions do you think should be 

applied, given the way that the FBI did use the NSL and the exigent letters? 

Mr. FINE. I think the FBI ought to look at this and look at the 

individuals involved and find out if they inappropriately and knowingly misused the authorities. They ought to take appropriate action against individuals, either management individuals who allowed it to occur or individuals in the field; and if they had poor 

performance, that ought to be assessed as well. So I think that 

ought to be something that the FBI is looking at. 

But I do not think they ought to say that simply because there 

was a misuse of the statute inadvertently that that would necessarily require misconduct charges against them. 

Mr. ELLISON. Right. Well, you know, part of the problem here is 

that the very nature of the act that allows for the expanded use 

of the NSL is below the radar, and so it, by nature, lacks transparency, which is why people are so upset that the abuses took 

place. 

But I guess my next question is, another recommendation that 

you have made is that there be greater control files for the NSLs. 

How would you envision that working? 

Mr. FINE. No. There should be greater controls on the use of 

NSLs. They ought to make sure that the people know when they 

can be used and under what statute they can be used. There need 

to be signed copies of the NSLs so that there can be an audit trail. 

They have to be connected to an investigative file, not a control file. 

Mr. ELLISON. Excuse me. I am sorry, Mr. Fine. 

Do you see this as essentially a training problem? 

Mr. FINE. I think it is a training problem. I think it is a supervision problem. I think it is an oversight problem. And I think it 

265

is a lack of adequate internal controls and is an auditing problem 

as well. 

Mr. ELLISON. Now, that brings me to the few questions I had for 

Ms. Caproni. 

Ms. Caproni, do you have the staff to make all of the changes 

that are needed in order to have this program work properly? 

Ms. CAPRONI. I would always like more resources. 

Mr. ELLISON. No. I am asking you—that is not my point. 

My question is, in order to—we could just simply go back to status quo, anti—back to pre-PATRIOT Act where NSLs were authorized, but not the expanded use of them that we have now. That 

could be one way to simply solve this problem. 

But my question is, at this time, do you have the staff to provide 

the training, to provide the controls that are called for by the recommendations? 

Ms. CAPRONI. I do. We are going to get some more staff that we 

have already discussed. We are going to get some analytic help, because we think that some of this would have been detected if we 

had had good analytic help so that we could see trends. 

But I think that we have enough lawyers. I think we can do 

what needs to be done. We are going to have assistance from Department of Justice lawyers for some of this, but I think we have 

sufficient resources. 

Mr. ELLISON. Ms. Caproni, if you have the sufficient resources, 

why didn’t you use them before? I mean, I guess the question that 

comes up in my mind is that you either do not have the resources 

to effectuate the changes that have been recommended or you do. 

And if you do, why weren’t they applied? 

Ms. CAPRONI. This report told us a lot that we just did not know. 

I mean, I will fall on that sword again, which is that we learned 

a lot from this report, and we are going to make changes. 

I think I have got the personnel to do it. I think we have got the 

resources. We are going to make the resources available. 

This is important to us. It is important to us to regain the confidence of the American people and to regain the confidence of this 

Committee. You are one of our oversight Committees, and you are 

very important to us, and we are not—trust me, I am not happy 

that we have this report and that I am in the position of saying, 

you know, we failed. 

Mr. ELLISON. Ms. Caproni, if I could just go back to Mr. Fine. 

Mr. Fine, one of the changes that was made in the PATRIOT Act 

was to say that, I think, people other than headquarters officials 

could issue these letters. 

Should the authority for the issuance of the letters be retracted 

to what it was before the PATRIOT Act? 

Mr. FINE. I am not sure of that, and I do not want to necessarily 

give legislation that should occur. 

I do think it is important, if that authority is out there, that it 

has to be overseen; and bringing things back to headquarters may 

or may not be the answer. As you will recall in the September 11th 

attacks with the Moussaoui case, one of the concerns was headquarters was controlling the field too much, and so there are considerations on both sides of this issue. I do think that when it does 

266

go out there, it has to be used appropriately and overseen appropriately. 

Mr. ELLISON. But if you had a narrower route through which 

these letters were authorized, wouldn’t you have greater accountability? 

Mr. FINE. You could. You could have greater accountability. 

On the other hand, the effect of this could be diminished significantly, so I think that is the balance that has to be struck. 

Mr. CONYERS. The time of the gentleman has expired, but I 

would like to say to Mr. Ellison that he has raised a point that we 

need to try to figure out at this hearing: Are there in existence the 

resources that are required and needed to reveal all of these people 

who have been abused or who have been violated by this system? 

For this hearing to close down—the gentleman from California, 

Mr. Berman, will be recognized next—without our having figured 

out, for example, that we do not have anywhere near the resources, 

as I have been talking with the gentleman from California, Mr. 

Lungren, about, either in the Federal Bureau of Investigation or in 

the Office of the Inspector General. 

If resources do not exist here, we may end up very well correcting everything from this point on, but how many thousands of 

people will have been violated to whom we will all be saying, from 

now on, not to worry, that it is all over with? 

That is a troubling consideration, Mr. Lungren, that we have had 

under discussion, that I am still looking for the answer to. 

So I recognize the gentleman from California, Mr. Berman. 

Mr. BERMAN. Well, thank you very much, Mr. Chairman. 

Mr. Fine, section 126a of the PATRIOT Act requires that not 

later than 1 year after the date of enactment of this act the Attorney General shall submit to Congress a report on any initiative of 

the Department of Justice that uses or is intended to develop pattern-based data-mining technology. 

The 1-year deadline expired on March 9th of this year. To my 

knowledge, we have not received this report. Can you give us an 

update on the progress of this report? 

Mr. FINE. From the Attorney General, no, I cannot give you 

progress. That is not my office. But I certainly can bring back that 

question to the Department. 

Mr. BERMAN. But I thought——

Ms. CAPRONI. Congressman, I, unfortunately, can tell you. Yes, 

it was not submitted on time. I think we sent a letter indicating 

that it is still being worked on. I saw a draft going back across between us and the DOJ, so it is being worked on. 

Mr. BERMAN. Okay. Well, then, let me ask you. 

As I understand the audit that the Inspector General has undertaken, information from the National Security Letters is routinely 

added to the FBI’s internal automated case system, which has 

about 34,000 authorized users; and then it is periodically 

downloaded into the Investigative Data Warehouse, which has approximately 12,000 users. 

Is it possible that other agencies of the Federal Government, or 

anywhere, are using information in that Investigative Data Warehouse for data-mining purposes? 

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Ms. CAPRONI. For data-mining purposes, I do not know the answer to that. I mean, they could get access to it as appropriate for 

their agency. 

Mr. BERMAN. So it is possible? 

Ms. CAPRONI. I do not know the answer. I do not know. 

Mr. BERMAN. You do not know if it is possible, or you do not 

know if they are? 

Ms. CAPRONI. I do not know what they are doing with it, and I 

do not know what rules and restrictions govern them, so I just cannot answer that question. 

Mr. BERMAN. Well, let me get one thing clear. 

Is the report that we are awaiting an Inspector General’s report 

or an Attorney General’s report? 

Ms. CAPRONI. An Attorney General’s. 

Mr. BERMAN. An Attorney General’s report. All right. 

So will that report include the data-mining of information in the 

Investigative Data Warehouse by agencies not within the Justice 

Department? This report that you have seen circulating, will it include the data-mining of information by other agencies from the 

Justice Department’s Investigative Data Warehouse? 

Ms. CAPRONI. It does not, but I do not know whether that means 

that no such activities are occurring or because it is not within the 

scope of the request. 

Mr. BERMAN. Well, since I was involved in this language, we 

think that since the database is under the purview of the Department of Justice, the use of it by other agencies would be included 

in that report under section 126a. 

Ms. CAPRONI. I will make sure that the people at DOJ understand that that is your interpretation of it. 

Unfortunately, I have been in the world of NSL and this report, 

and I have not been in the world of the data-mining report, so I 

just have not read it, so that is why I cannot answer your question. 

Mr. BERMAN. So you have not been personally involved in determining whether other agencies are being cooperative on how they 

are using the data from the—I take it you do not. 

Ms. CAPRONI. I do not. I just have not been involved in it. 

Mr. BERMAN. If you, subsequent to this hearing, could get that 

information and pass it on to me, I would be very grateful. 

Ms. CAPRONI. Certainly, I can. 

Mr. BERMAN. The information about whether the report will talk 

about other agencies’ use of the Justice Department’s Investigative 

Data Warehouse for data-mining purposes. 

Ms. CAPRONI. Again, I will make sure that the Department understands your position. 

Mr. BERMAN. Thank you. 

Mr. LUNGREN. Would the gentleman yield to me——

Mr. BERMAN. I would be happy to. 

Mr. LUNGREN [continuing]. So I could ask a question? 

Ms. Caproni, one question just came to mind, and that is, part 

of this testimony today has talked about how agents in the field 

and special agents in charge in the field did not get the proper 

legal advice from, I presume, people who report to you, that they 

were not challenged as to the legal sufficiency of the NSLs or of 

the exigent letters; is that correct? 

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Ms. CAPRONI. I think that comment was relative to the lawyers 

in the field, who actually do not report to me. 

Mr. LUNGREN. Whom do they report to? 

Ms. CAPRONI. They report to the special agents in charge. They 

report to their field office head. That is one of the things that Mr. 

Fine has suggested that we look at, and that is actively under discussion at the Bureau right now, whether that reporting structure 

should change. 

Mr. LUNGREN. So they do not report to you at all? 

Ms. CAPRONI. No, sir, they do not. 

Mr. LUNGREN. So they were on their own in the advice they were 

giving of a legal nature to the agents and to the special agents in 

charge to whom they report? 

Ms. CAPRONI. On a reporting basis, they do not report to me. I 

do not supervise them. 

I am in charge of the legal program. So we provide the CDCs. 

That is their title. We provide them with substantial legal advice, 

and they frequently call us when they have questions, but I do not 

rate them, and they do not report to me. I do not hire them; I do 

not fire them. 

Mr. LUNGREN. I know, but what I am trying to figure out is, if 

these attorneys report to the SAC, does that make it more difficult 

for them to tell the SAC that he or she is wrong when they are 

asking for one of these letters? 

Ms. CAPRONI. That is the concern that Mr. Fine has raised. I 

mean, I——

Mr. LUNGREN. Well, do you share that concern? 

Ms. CAPRONI. I do share that concern. 

Mr. LUNGREN. Could that be one of the real problems we have 

got here? 

Ms. CAPRONI. I will say there are arguments both ways, Congressman. It is not—and the reason I say that is because I report 

to the Director of the FBI, and I do not have any problem telling 

the Director of the FBI my legal advice; and if he does not like it, 

it is still my legal advice. 

That is what the CDC should be doing, but whether they——

Mr. LUNGREN. My experience has been that the SACs are pretty 

important people in their various offices, and most people generally 

think they are the top dogs, and we have this problem where, apparently, good legal advice either was not given or was not accepted, and maybe that is something we ought to look at if you folks 

will not look at it. 

Ms. CAPRONI. Again, we are actively looking at that very question of whether the CDC reporting structure should change. 

Mr. LUNGREN. And I thank the gentleman from California for 

yielding, although he is not here to receive it back. 

Mr. CONYERS. I thank you all. 

The gentleman from Minnesota had one last question that I have 

agreed to entertain, if you will. 

Mr. ELLISON. Thank you, Mr. Chair. 

My question is, of all of the letters that have been issued and of 

all of the inaccurate and improper data that has been set forth, 

clearly some information came back; and in the cases where indiVerDate 0ct 09 2002 15:28 Aug 01, 2007 Jkt 000000 PO 00000 Frm 00272 Fmt 6633 Sfmt 6601 H:\WORK\FULL\032007\34175.000 HJUD1 PsN: 34175
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viduals’ information was obtained in violation of the rules and of 

the statutes, what has happened? 

Have these individuals been notified? What recourse do they 

have? What is the story on the people? 

Ms. CAPRONI. The people are not notified. Their records are removed from our databases, and the records are destroyed. 

Mr. FINE. That is correct. 

Mr. CONYERS. Thank you very much. 

Ladies and gentlemen, this has been an excellent hearing. We 

thank the witnesses for continuing in an extended period of examination. We will all be working together. There are 5 legislative 

days in which Members may submit additional questions to you 

and send them back as soon as you can. 

We also want to enter into the record Caroline Fredrickson’s 

statement on behalf of the American Civil Liberties Union, Congressman Coble’s Department of Justice facts sheet release. We 

also have The New York Times, which officially alerted the FBI to 

rules abuse 2 years ago, dated March 18th. And we also have a letter being hand-delivered to the general counsel, dated today, March 

20th, which asks her for additional information. 

The record will be open for 5 additional days, and without any 

further business before the Committee, the hearing is adjourned. 

We thank you for your attendance. 

[Whereupon, at 12:45 p.m., the Committee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, COMMITTEE ON THE JUDICIARY


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PREPARED STATEMENT OF THE HONORABLE LINDA T. SA ́ NCHEZ, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA, AND MEMBER, COMMITTEE ON THE JUDICIARY


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RESPONSE TO POST-HEARING QUESTIONS FROM GLENN A. FINE, INSPECTOR GENERAL, 

U.S. DEPARTMENT OF JUSTICE


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1 At the time of publication, responses to post-hearing questions posed to Valerie Caproni had 

not been received by the Committee on the Judiciary.

POST-HEARING QUESTIONS POSED TO VALERIE CAPRONI, GENERAL COUNSEL, FEDERAL

BUREAU OF INVESTIGATION, FROM CHAIRMAN JOHN CONYERS, JR.1


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LETTER FROM RICHARD C. POWERS, ASSISTANT DIRECTOR, OFFICE OF

CONGRESSIONAL AFFAIRS, FEDERAL BUREAU OF INVESTIGATION


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1 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept 

and Obstruct Terrorism Act of 2001, Pub. Law No 107–56, 115 Stat. 272 (2001)[Hereinafter Patriot Act]. 2 Id., section 505. 

3Telephone and e-mail information that can be obtained with NSLs includes historical information on calls made to and from a particular number, billing records, electronic communication 

transactional records and billing records (including method of payment), and subscriber information. 4 18 U.S.C. section 2709 (1988). 

5 12 U.S.C. section 3401 (2000). 

6 15 U.S.C. section 1681 et seq. (1996). 

7 50 U.S.C. section 436(a)(1)(2000). 

8Pub. Law No. 104–93, section 601(a), 109 Stat. 961, codified at 15 U.S.C. section 1681u 

(Supp.V. 1999). 9Patriot Act section 358(g)(2001). 

10 USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. Law No. 109–177, 120 

Stat. 192 (2006). 11Office of the Inspector General, A Review of the Federal Bureau of Investigation’s Use of 

National Security Letters, March 2007, http://www.usdoj.gov/oig/reports/FBI/index.htm (Hereinafter IG Report). 12 IG Report at 94. 13 IG Report at 38. 

PREPARED STATEMENT OF CAROLINE FREDERICKSON, DIRECTOR, WASHINGTON

LEGISLATIVE OFFICE, AMERICAN CIVIL LIBERTIES UNION (ACLU) 

On behalf of the American Civil Liberties Union, its more than half a million 

members and activists, and 53 affiliates nationwide, I thank Chairman Conyers and 

ranking member Smith for holding today’s hearing on FBI abuse of National Security Letters. 

Over five years ago, in the wake of the terrorist attacks of September 11, 2001 

Congress passed the USA Patriot Act,1 giving the FBI extraordinarily broad powers 

to secretly pry into the lives of ordinary Americans in the quest to capture foreign 

terrorists. One of the changes the Patriot Act made was to expand the circumstances in which National Security Letters (NSLs) could be issued so that the 

information sought with such letters would no longer have to pertain to an agent 

of a foreign power, and would no longer be limited to the subjects of FBI investigations.2 An NSL is a letter that can be issued by Special Agents in Charge (SAC) 

of the FBI’s 56 field offices—without any judicial review—to seek records such as 

telephone and e-mail information,3 financial information, and consumer credit information. 

The four NSL authorizing statutes include the Electronic Communications Privacy 

Act,4 the Right to Financial Privacy Act,5 the Fair Credit Reporting Act,6 and the 

National Security Act of 1947.7 Subsequent legislation expanded the types of institutions from which records could be sought using NSLs. The Intelligence Authorization Act for Fiscal Year 1996,8 amended the FCRA to give the FBI authority to obtain credit header information with NSLs, and a provision of the Patriot Act, expanded this power to allow the FBI and other government agencies that investigate 

terrorism to obtain full credit reports.9 The Patriot Act also reduced the standard 

necessary to obtain information with NSLs, requiring only that an SAC certify that 

the records sought are ‘‘relevant’’ to an authorized counterterrorism or counter-intelligence investigation. 

The ACLU opposed these unwarranted expansions of NSL power, and opposed 

making provisions of that statute permanent with the Patriot Reauthorization Act 

of 2005,10 fearing these unnecessary and unchecked powers could be too easily 

abused. When Congress reauthorized the Patriot Act, it directed the Department of 

Justice Inspector General (IG) to review the effectiveness and use of these expanded 

authorities and one of the first of these reports, a review of the FBI’s use of NSLs, 

was released on March 9, 2007.11

The IG’s audit confirms our worst fears: that the FBI uses its NSL authorities 

to systematically collect private information about people who are not reasonably 

suspected of being involved in terrorism, and it retains this information indefinitely. 

The FBI ignored the scant requirements of the law and developed shortcuts to illegally gather information the FBI wanted from telecommunications companies and 

financial institutions. It did this without opening the investigations for which, by 

law, this information must be sought or be relevant to, and often without ever bothering to secure the NSLs or grand jury subpoenas it told these telecoms and financial institutions it would secure to support its claim of access to sensitive customer 

information.12 This should be of great concern to all Americans, because the IG 

found the FBI is increasingly using this power against U.S. persons.13 And despite 

the issuance of more than 140,000 NSL requests, the IG report documents only one 

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14 IG Report at 63, 64. 15 IG Report, footnote 103, p. 62. 16 IG Report at 88. 17 IG Report at 92. 18 IG Report at 90. 19 IG Report at 97. 20 IG Report at 92. 21 Id. 22FBI letter to Inspector General Glen Fine dated March 6, 2007 included in the appendix 

of the IG Report. 23 IG Report p. 91. 24 12 U.S.C. section 3401 (2000). See IG Report at 115. 

terrorism conviction—for providing ‘‘material support’’ for terrorism—and only 153 

‘‘criminal proceedings’’ resulting from the extensive use of this power.14 ‘‘Criminal 

proceedings’’ is defined as all federal grand jury proceedings, as well as search warrants, indictments and trials.15

For over five years the Federal Bureau of Investigation has collected vast troves 

of data in secret and without accountability. I hope this hearing is only one of many 

to reestablish checks and balances on the executive branch and curb its many 

abuses of power. The ACLU asks this committee to hold the FBI and this administration accountable for these abuses and to make statutory changes that will ensure 

that they cannot happen again. 

THE INSPECTOR GENERAL’S FINDINGS

Despite statements to the contrary, the Inspector General found much more than 

just sloppy management and poor record keeping. The Inspector General’s report 

documents systematic failures to meet statutory requirements, and at times, intentional refusals to comply with the law. 

Intentional Violation of the NSL Statute 

Most disturbingly, the Inspector General’s report shows that the FBI’s Communications Analysis Unit (CAU) declared itself unconstrained by the NSL statutes—

arguing that the law was ‘‘insufficient’’ for CAU’s purposes—and it contracted directly with three telephone companies to access information illegally.16 The information included telephone toll and call detail records and the contract specified that 

the telephone companies would provide ‘‘near real-time servicing’’ of these requests. 

The contracts were approved by the FBI’s Office of General Counsel (OGC), and fulfilled by issuing so-called ‘‘exigent’’ letters that were used even when no exigent circumstances existed.17 The IG was able to confirm the use of 739 exigent letters to 

obtain information on 3,000 telephone accounts, in the clear absence of statutory authority to do so.18 The true number is unknown because the FBI does not keep adequate records. That FBI Office of General Counsel procurement attorneys were involved with these contracts confirms that the telecommunication companies were 

paid for their cooperation and silence, and confirms that contrary to the IG’s assertion that the FBI’s use of ‘‘exigent’’ letters was undertaken without the benefit of 

advance legal consultation,19 FBI lawyers were instrumental in establishing this illegal process. 

CAU staff, who were not authorized to sign NSLs, used ‘‘exigent’’ letters containing obviously false statements to obtain documents from the telephone companies when no authorizing investigation was open, when no NSLs or subpoenas had 

been requested, and when no emergency situation existed.20 They then asked FBI 

field offices to open investigations so NSLs could be issued without telling the field 

office personnel that CAU staff had already received the records,21 a clear indication 

that they knew what they were doing was improper. FBI National Security Law 

Branch (NSLB) attorneys were made aware of this issue in late 2004, possibly 

through complaints from field agents who resisted CAU’s directives, and an NSLB 

Assistant General Counsel concluded that the practice of using ‘‘exigent’’ letters did 

not comply with the NSL statute. Yet, rather than prohibiting the practice outright, 

the NSLB attorney counseled CAU for two years regarding how and when CAU officials should use them. Regardless of this advice, CAU continued using these ‘‘exigent’’ letters, and the practice wasn’t ‘‘banned’’ until the IG issued its report.22 Even 

today the FBI is unable to determine whether data requested with ‘‘exigent’’ letters 

was ever covered with properly issued NSLs or subpoenas.23

And the issuance of ‘‘exigent’’ letters was only one of the illegal methods the FBI 

used to circumvent the NSL statutes. Using a similar scheme, the Terrorist Financing Operations Unit issued ‘‘Certificate Letters’’ to obtain the financial records of at 

least 244 named individuals in violation of the Right to Financial Privacy Act.24

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25 IG Report at 117. 26 IG Report at 100. 27 IG Report at 85. 28 IG Report at 28, 30, and 110. 29 IG Report at 44. 30 IG Report at 64. 31 IG Report at 109. 32 IG Report at 38. 33 IG Report at 110. 34 IG Report at 28, 30. 35 IG Report at 54. 36 IG Report at 34. 

Again, agents without authority to issue NSLs used these letters to circumvent the 

law and gain access to private financial records, and then lied about it when confronted by NSLB attorneys. When the NSLB attorneys realized they had been misled they ordered the practice halted, but it did not stop.25 This sequence reveals 

what can only be described as clearly intentional misconduct. 

In other instances NSLB attorneys actually signed NSLs without reference to any 

authorized investigation, and more than 300 NSLs were issued out of an FBI control 

file that was opened specifically because there was not an authorized investigation 

from which to issue an NSL for the data the FBI wanted.26

Increasing Collection of Data on U.S. persons 

When Congress expanded the FBI’s authority to use NSLs, it required FBI officials to certify that the information sought with these letters is relevant to an authorized investigation. By instituting this requirement, Congress clearly intended 

for NSLs to be a targeted investigative power, rather than a broad power that could 

be used to cast a wide net. But, the IG report makes clear this is not how the FBI 

is using its NSL authorities. In one example, nine NSLs were used to obtain records 

for 11,000 different telephone numbers. And, agents and analysts often didn’t even 

review the data they received from NSLs. They simply uploaded it into computers.27

The IG found information received from NSLs is uploaded into three separate FBI 

databases, where it is retained indefinitely and retrievable by tens of thousands of 

FBI and non-FBI personnel,28 even if the information exonerates the subject from 

any involvement in terrorism.29 Despite this extraordinary collection effort, the IG 

was able to document only one terrorism conviction resulting from the use of 

NSLs.30 Clearly NSLs are not being used as targeted investigative tools. 

The IG also expressed concern that the FBI allows agents to use NSLs to access 

information about individuals who are ‘‘two or three steps removed from their subjects without determining if these contacts reveal suspicious connections.’’ 31 The 

fact that NSLs are being issued from control files and ‘‘exigent’’ letters are being 

used by analytic units at FBI Headquarters suggests that this tool is not being used 

in the manner Congress intended. Despite the FBI’s claims that NSLs are directed 

at suspected terrorists, the Inspector General found that the proportion of NSLs 

issued to obtain information on Americans is increasing. In fact, the majority of 

NSLs the FBI issued in 2005 were used to obtain information about U.S. persons 

(American citizens and lawful permanent residents of the U.S.).32

Datamining 

Neither the NSL statutes nor Department of Justice policy require the FBI to 

purge from its databases sensitive personal information about persons who are 

found to be innocent and not tied to foreign powers.33 The Inspector General confirmed that the FBI has taken advantage of this loophole and uploads all information—admittedly innocent or not—into national databases that are indefinitely 

maintained. The data received from NSLs is uploaded into a ‘‘Telephone Application 

Database’’ where a link analysis is conducted, and into an Investigative Data Warehouse where it is mixed with 560 million records from 50 different government databases.34 Tens of thousands of law enforcement and intelligence personnel have access to the information, which is not given a disposition, leaving innocent people associated with a terrorism investigation long after their information becomes irrelevant. Intelligence products developed from this data do not cite the origin,35 so er- rors in the information can never be checked against the source documents. Instead, 

errors will be compounded when intelligence products derived from this erroneous 

information are distributed throughout the intelligence community and to state and 

local law enforcement agencies. 

Erroneous Reports to Congress and the Intelligence Oversight Board 

The Inspector General found that statutorily required reports to Congress excluded at least six percent of the overall number of NSLs.36 The number of unreVerDate 0ct 09 2002 15:28 Aug 01, 2007 Jkt 000000 PO 00000 Frm 00296 Fmt 6601 Sfmt 6621 H:\WORK\FULL\032007\34175.000 HJUD1 PsN: 34175
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37 IG Report at 78. 38 Agent of a foreign power is defined in the Foreign Intelligence Surveillance Act of 1978, 50 

U.S.C. § 1801 (1978). 

ported NSLs may be higher, but record keeping is so bad at the FBI, the Inspector 

General was unable to even confirm a final number. A review of just 77 cases from 

four FBI field offices found 22 percent more NSLs in case files than the FBI General 

Counsel knew about. More significantly, the IG found 60% of those files deficient 

in required paperwork, and his review doubled the number of unlawful violations 

that needed to be reported to the President’s Intelligence Oversight Board.37

PROPOSED AMENDMENTS

Regrettably, the Inspector General’s report only included suggestions for internal 

changes within the FBI’s discretion, and did not include recommendations for 

amending the underlying statute that is the source of these abuses. It is clear that 

the violations the Inspector General uncovered were the natural consequence of a 

statute that allows government agents to access sensitive information without suspicion of wrongdoing, in the absence of court oversight, and with complete secrecy 

compelled by a gag order with criminal consequences. In fact, even if management 

and technology problems identified in the IG’s report are solved, hundreds of thousands of NSLs will continue to collect information on innocent Americans because 

that is exactly what the statute allows. 

The ACLU recommends three statutory changes that are absolutely necessary to 

ensure that the law protects privacy while permitting the collection of information 

necessary to investigate terrorism. 

Limit NSLs to Suspected Terrorists and Other Agents of Foreign Powers 

First, Congress must repeal the expansion of the NSL power that allows the FBI 

to demand information about totally innocent people who are not the targets of any 

investigation. The standard should return to the requirement that NSLs seek only 

records that pertain to terrorism suspects and other agents of foreign powers.38 And 

the FBI should not be allowed to use NSLs to investigate people two or three steps 

removed from any criminal or terrorist activity. 

Under current law, the FBI can use an NSL to obtain information that the FBI 

asserts is ‘‘relevant’’ to an investigation. The FBI has clearly taken advantage of 

this ‘‘relevance’’ standard and issued NSLs to obtain information on innocent American people with no connection to terrorism. In fact, it obtained this information 

without even opening an investigation to which the information must be relevant. 

NSLs are now issued to collect records just for the sake of building databases that 

can be mined later. In addition to being wholly ineffective as an investigative technique, this data collection and warehousing is an affront to the privacy of U.S. persons. 

Restrict the Gag Provisions and allow for Meaningful Challenges 

The gag provisions of the NSL statutes unconstitutionally inhibit individuals receiving potentially abusive NSLs from challenging them in court. Congress should 

amend the NSL statute so that gag orders are imposed only upon the authority of 

a court, and only where necessary to protect national security. Judicially imposed 

gag orders should be limited in scope and duration. 

Further, gags must come with a meaningful right to challenge them before a neutral arbiter. Last year’s amendments created a sham court proceeding, whereby a 

judge is powerless to modify or overturn a gag if the federal government simply certifies that national security is at risk, and may not even conduct any review for a 

full year after the NSL is issued. Under the NSL statute, the federal government’s 

certification must be treated as ‘‘conclusive,’’ rendering the ability to go before a 

judge meaningless. To comport with the First Amendment, a recipient must be able 

to go before a judge to seek meaningful redress. 

Court Review 

If there is one undeniable conclusion that Congress can draw from the Inspector 

General’s report, it is that the FBI cannot be left to police itself. Allowing the FBI 

to keep self-certifying that it has met the statutory requirements invites further 

abuse and overuse of NSLs. Contemporaneous and independent oversight of the 

issuance of NSLs is needed to ensure that they are no longer issued at the drop 

of a hat to collect information about innocent U.S. persons. Court review will provide those checks and balances as was intended by the Constitution. 

294

CONCLUSION

The Inspector General reviewed just a tiny proportion of NSLs issued by the FBI 

from 2003 through 2005, yet he found an extraordinary level of mismanagement, incompetence, and willful misconduct that clearly demonstrates that the unchecked 

NSL authorities given to the FBI in the Patriot Act must be repealed. The FBI and 

Department of Justice have shown that they cannot police themselves and need 

independent oversight. The American Civil Liberties Union applauds the Committee 

for holding this hearing and opening a window on these abuses, but there is more 

work to be done. Congress must fully investigate the FBI’s abuse of power to insure 

that those responsible for these violations are held accountable, and the innocent 

people who have had their privacy invaded and their civil rights abused need to be 

identified and notified, and records that have been improperly or inappropriately 

seized should be purged from FBI databases. But most importantly, Congress needs 

to fix the Patriot Act, which has set the stage for all of these problems.

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LETTER REQUESTING ADDITIONAL INFORMATION SUBMITTED TO VALERIE CAPRONI, 

GENERAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION


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PRESS RELEASE BY THE DEPARTMENT OF JUSTICE FROM MARCH 9, 2007, SUBMITTED

BY THE HONORABLE HOWARD COBLE, A REPRESENATIVE IN CONGRESS FROM THE

STATE OF NORTH CAROLINA, AND MEMBER, COMMITTEE ON THE JUDICIARY


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ARTICLE ENTITLED ‘‘OFFICIAL ALERTED F.B.I. TO RULES ABUSE 2 YEARS AGO, LAWYER SAYS,’’ THE NEW YORK TIMES, SUBMITTED BY THE HONORABLE JOHN CONYERS, 

JR.


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Æ


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