FBI Director's Notes Detail Visit To Ashcroft's Room

The NYTimes reports:

John Ashcroft was “barely articulate,” “feeble” and “clearly stressed” as he sat in a hospital room chair in March 2004 when top White House aides unsuccessfully tried to persuade him, as the Attorney General, to sign an extension for warrantless domestic eavesdropping on Americans, according to notes made by Robert S. Mueller III, the director of the F.B.I.

Mr. Mueller’s notes [.pdf] of his visit to Mr. Ashcroft’s hospital room provide another eyewitness account of the dramatic confrontation over the secret surveillance program. They confirm an account of the encounter given by James B. Comey, the former deputy attorney general, who testified before the Senate Judiciary Committee about it in May.

Mr. Mueller’s typed notes, which are undated, also reveal a series of meetings earlier and later that month between the F.B.I. director and other administration officials, including Mr. Comey, Alberto R. Gonzales, then White House Counsel and General Michael V. Hayden, then the director of the National Security Agency, which conducted the electronic monitoring program.

At one point in a meeting with Mr. Mueller, the notes show, Mr. Gonzales said that even he was “barred” from getting as much information as he wanted about the highly classified eavesdropping program, because of strict White House secrecy rules.

Mr. Mueller’s notes, which have been turned over to the House Judiciary Committee, were described by two officials who had reviewed them. The notes recount Mr. Mueller’s arrival at the hospital after Mr. Gonzales and Andrew H. Card Jr., then the White House chief of staff, had attempted to persuade Mr. Ashcroft to sign a presidential order reauthorizing the program. Mr. Comey, who was acting as attorney general during Mr. Ashcroft’s hospitalization, had declined to sign the reauthorization because he believed that part of the program was unlawful.

Mr. Mueller said he went to the hospital after receiving a phone call from Mr. Comey, arriving there at 7:40 p.m; he stayed until 8:20 pm. His notes said that Mr. Comey told him that Mr. Ashcroft, who had undergone gall bladder surgery the previous day, was in “no condition” to receive visitors.

Mr. Mueller’s notes were turned over to the committee with some of the entries deleted or heavily edited, including virtually all of Mr. Mueller’s notations about his White House meeting with President Bush on March 12, when the F.B.I. Director intervened to head off threatened resignations by himself, Mr. Ashcroft, Mr. Comey and a number of other Justice Department officials.

After speaking with Mr. Comey and Mr. Mueller, the president agreed to permit changes in the N.S.A. activities to satisfy the legal objections. Current and former government officials have said the legal dispute involved data mining, meaning computer searches of large volumes of electronic records of telephone calls and e-mail messages.

Appearing before the House Judiciary Committee on July 26, Mr. Mueller gave a sparse description of the hospital encounter that generally accorded with Mr. Comey’s account. But he declined to describe his conversation with Mr. Ashcroft in any detail.

In response to a question about the attorney general’s condition that night, he replied only that he knew Mr. Ashcroft “had gone through a difficult operation and was being closely monitored in the hospital.”

Pressed by committee Democrats for a fuller description of the scene, a seemingly reluctant Mr. Mueller would say only that the hospital visit was “out of the ordinary.”

FBI Finds It Frequently Overstepped in Collecting Data

The Washington Post reports:

An internal FBI audit has found that the bureau potentially violated the law or agency rules more than 1,000 times while collecting data about domestic phone calls, e-mails and financial transactions in recent years, far more than was documented in a Justice Department report in March that ignited bipartisan congressional criticism.

The new audit covers just 10 percent of the bureau's national security investigations since 2002, and so the mistakes in the FBI's domestic surveillance efforts probably number several thousand, bureau officials said in interviews. The earlier report found 22 violations in a much smaller sampling.

The vast majority of the new violations were instances in which telephone companies and Internet providers gave agents phone and e-mail records the agents did not request and were not authorized to collect. The agents retained the information anyway in their files, which mostly concerned suspected terrorist or espionage activities.

But two dozen of the newly-discovered violations involved agents' requests for information that U.S. law did not allow them to have, according to the audit results provided to The Washington Post. Only two such examples were identified earlier in the smaller sample.

FBI officials said the results confirmed what agency supervisors and outside critics feared, namely that many agents did not understand or follow the required legal procedures and paperwork requirements when collecting personal information with one of the most sensitive and powerful intelligence-gathering tools of the post-Sept. 11 era -- the National Security Letter, or NSL.

Such letters are uniformly secret and amount to nonnegotiable demands for personal information -- demands that are not reviewed in advance by a judge. After the 2001 terrorist attacks, Congress substantially eased the rules for issuing NSLs, requiring only that the bureau certify that the records are "sought for" or "relevant to" an investigation "to protect against international terrorism or clandestine intelligence activities."

The change -- combined with national anxiety about another domestic terrorist event -- led to an explosive growth in the use of the letters. More than 19,000 such letters were issued in 2005 seeking 47,000 pieces of information, mostly from telecommunications companies. But with this growth came abuse of the newly relaxed rules, a circumstance first revealed in the Justice Department's March report by Inspector General Glenn A. Fine.

"The FBI's comprehensive audit of National Security Letter use across all field offices has confirmed the inspector general's findings that we had inadequate internal controls for use of an invaluable investigative tool," FBI General Counsel Valerie E. Caproni said. "Our internal audit examined a much larger sample than the inspector general's report last March, but we found similar percentages of NSLs that had errors."

"Since March," Caproni added, "remedies addressing every aspect of the problem have been implemented or are well on the way."

Of the more than 1,000 violations uncovered by the new audit, about 700 involved telephone companies and other communications firms providing information that exceeded what the FBI's national security letters had sought. But rather than destroying the unsolicited data, agents in some instances issued new National Security Letters to ensure that they could keep the mistakenly provided information. Officials cited as an example the retention of an extra month's phone records, beyond the period specified by the agents.

Case agents are now told that they must identify mistakenly produced information and isolate it from investigative files. "Human errors will inevitably occur with third parties, but we now have a clear plan with clear lines of responsibility to ensure errant information that is mistakenly produced will be caught as it is produced and before it is added to any FBI database," Caproni said.

The FBI also found that in 14 investigations, counterintelligence agents using NSLs improperly gathered full credit reports from financial institutions, exercising authority provided by the USA Patriot Act but meant to be applied only in counterterrorism cases. In response, the bureau has distributed explicit instructions that "you can't gather full credit reports in counterintelligence cases," a senior FBI official said.

In 10 additional investigations, FBI agents used NSLs to request other information that the relevant laws did not allow them to obtain. Officials said that, for example, agents might have requested header information from e-mails -- such as the subject lines -- even though NSLs are supposed to be used to gather information only about the e-mails' senders and the recipients, not about their content.

The FBI audit also identified three dozen violations of rules requiring that NSLs be approved by senior officials and used only in authorized cases. In 10 instances, agents issued National Security Letters to collect personal data without tying the requests to specific, active investigations -- as the law requires -- either because, in each case, an investigative file had not been opened yet or the authorization for an investigation had expired without being renewed.

FBI officials said the audit found no evidence to date that any agent knowingly or willingly violated the laws or that supervisors encouraged such violations. The Justice Department's report estimated that agents made errors about 4 percent of the time and that third parties made mistakes about 3 percent of the time, they said. The FBI's audit, they noted, found a slightly higher error rate for agents -- about 5 percent -- and a substantially higher rate of third-party errors -- about 10 percent.

The officials said they are making widespread changes to ensure that the problems do not recur. Those changes include implementing a corporate-style, continuous, internal compliance program to review the bureau's policies, procedures and training, to provide regular monitoring of employees' work by supervisors in each office, and to conduct frequent audits to track compliance across the bureau.

The bureau is also trying to establish for NSLs clear lines of responsibility, which were lacking in the past, officials said. Agents who open counterterrorism and counterintelligence investigations have been told that they are solely responsible for ensuring that they do not receive data they are not entitled to have.

The FBI audit did not turn up new instances in which another surveillance tool known as an Exigent Circumstance Letter had been abused, officials said. In a finding that prompted particularly strong concerns on Capitol Hill, the Justice Department had said such letters -- which are similar to NSLs but are meant to be used only in security emergencies -- had been invoked hundreds of times in "non-emergency circumstances" to obtain detailed phone records, mostly without the required links to active investigations.

Many of those letters were improperly dispatched by the bureau's Communications Analysis Unit, a central clearinghouse for the analysis of telephone records such as those gathered with the help of "exigent" letters and National Security Letters. Justice Department and FBI investigators are trying to determine if any FBI headquarters officials should be held accountable or punished for those abuses, and have begun advising agents of their due process rights during interviews.

The FBI audit will be completed in the coming weeks, and Congress will be briefed on the results, officials said. FBI officials said each potential violation will then be extensively reviewed by lawyers to determine if it must be reported to the Intelligence Oversight Board, a presidential panel of senior intelligence officials created to safeguard civil liberties.

The officials said the final tally of violations that are serious enough to be reported to the panel might be much less than the number turned up by the audit, noting that only five of the 22 potential violations identified by the Justice Department's inspector general this spring were ultimately deemed to be reportable.

"We expect that percentage will hold or be similar when we get through the hundreds of potential violations identified here," said a senior FBI official, who spoke on the condition of anonymity because the bureau's findings have not yet been made public.

Mueller Often Uses Jet Bought For Anti-Terrorism

FBI chief’s travel now accounts for nearly a quarter of flight time

The Washington Post reports:

When the FBI asked Congress this spring to provide $3.6 million in the war spending bill for its Gulfstream V jet, it said the money was needed to ensure that the aircraft, packed with state-of-the-art security and communications gear, could continue to fly counterterrorism agents on "crucial missions" into Iraq.

Since the attacks of Sept. 11, 2001, the bureau has made similar annual requests to maintain and fuel the $40 million jet on grounds that it had a "tremendous impact" on combating terrorism by rapidly deploying FBI agents to "fast-moving investigations and crisis situations" in places such as Afghanistan.

But the jet that the FBI originally sold to lawmakers in the late 1990s as an essential tool for battling terrorism is now routinely used to ferry FBI Director Robert S. Mueller III to speeches, public appearances and field office visits.

In fact, Mueller's travel now accounts for nearly a quarter of the flight time for the lone FBI jet able to make international flights.

FBI officials acknowledged to The Washington Post that Mueller's use of the Gulfstream is a marked departure from the travel practices of his predecessors, such as Louis J. Freeh, who flew commercially or used a smaller Cessna Citation jet. They said that Mueller's aides first check with the counterterrorism division to make sure the Gulfstream is not needed for terrorism operations, and that the Justice Department approves each flight.

They also said that Mueller's logistical and security advisers have urged him to use the plane routinely. "It's not like he is the one checking the box for which plane he uses," Assistant Director John Miller said. "He is the CEO of the FBI's part in the war on terror. That means every trip he makes -- whether to rally the troops in field offices, to negotiate agreements with partners overseas or to explain to the public the changing threats and solutions -- furthers the operational mission of the bureau."

Congressional disagreement
Sen. Charles E. Grassley (Iowa), the senior Republican on the Senate Finance Committee, has expressed concern that the jet has often been used for Mueller's routine trips rather than for counterterrorism operations, as lawmakers intended. Grassley said that when he questioned the bureau in December about how the plane was used, he received no answer.

"Using this FBI jet to get to speaking engagements when the plane is intended to help fight terrorism is a good way to lose congressional approval of a necessary resource," he said. "If the FBI wanted a jet to fly the director around, then it shouldn't try to justify the plane as a weapon in the war on terror."

Rep. Frank R. Wolf (R-Va.), a member of the House Appropriations Committee, disagrees. "He's got to be in touch at all times," said Wolf, who said he knew about Mueller's use of the Gulfstream and is not concerned. "I think he is a good director, very honest and very ethical, and I think it is totally appropriate."

FBI officials said Mueller relies on the jet's special communications gear to ensure that he can be in instant contact with Washington in the event of another terrorist attack that grounds commercial flights, and also to conduct sensitive conversations during routine travel.

But they also said that, on occasion, Mueller has used the jet to reach a government function and then stayed behind for vacation, returning home aboard a commercial airliner that lacks secure communications. Mueller designates his deputy, John Pistole, as acting director when he flies commercially.

Mueller and his security detail typically fly on the Gulfstream from Washington's Reagan National Airport, requiring the jet to fly from a suburban airfield, where it is stored. Each time that happens, it costs an additional $1,000.

FBI officials asked The Post not to name the suburban airport because it houses other sensitive national security assets. But they said that the runways there are too short to allow the Gulfstream's takeoff while loaded with Mueller's security detail and equipment.

Mueller's predecessor, Freeh, persuaded Congress in the late 1990s to give the bureau the Gulfstream V jet -- often fancied by celebrities and chief executives -- for the narrow mission of transporting global terrorism suspects on a moment's notice back to the United States for interrogation. The bureau had operated only a small number of single-engine planes for investigative surveillance and one Citation corporate jet capable of reaching anywhere in the United States.

"We were commonly given a narrow window to remove the suspects, sometimes as little as 12 hours," Freeh wrote in his memoir, "My FBI." "In those circumstances, we would have to scramble for a military aircraft to do the transport. If one wasn't available we'd start calling friendly CEOs of American corporations to see if we could hitch a ride. . . . To me, the situation was ridiculous so I began lobbying for a Gulfstream."

The FBI succeeded after a string of terrorist attacks, including the 1993 World Trade Center bombing, the Khobar Towers attack in Saudi Arabia in 1996 and the two embassy bombings in Africa in 1998.

"Due to the number of international terrorist attacks against United States personnel and facilities overseas, the FBI identified a need for an aircraft with long-range flight capabilities," stated the bureau's 1999 appropriations request to Congress.

In February 2001, the FBI struck a deal to acquire the jet from the Air Force. It was delivered around the time of the September terrorist attacks that year, documents show.

Mueller took over the bureau in late summer 2001 and has flown the plane several times to meet with his law enforcement and intelligence counterparts or to consult with FBI legal attaches in Europe and the Middle East. In one such trip last year, Mueller jetted to Bucharest, Romania; Baghdad; Islamabad, Pakistan; Kabul; Bagram, Afghanistan; and Tel Aviv in just five days, FBI officials said.

Trips within the U.S.
But Mueller also regularly uses the jet to visit field offices in the United States, in what his aides describe as an effort to boost morale and to keep agents focused on the counterterrorism mission. Mueller also tries to squeeze in speeches and public events.

One such trip occurred in May 2005 when he took the Gulfstream to Kansas City, Mo., to deliver a speech to a symposium on agroterrorism. Bureau officials said the plane, which seats about a dozen people and has a galley, is now flown 800 to 900 hours annually, with Mueller accounting for an average of 180 hours, or 23 percent of its flight time.

When the jet is flown on terrorism-related missions, the costs are absorbed by special money Congress gave for that purpose. When Mueller uses the jet, the FBI's base operating budget covers the costs. Appropriations for the jet have grown from $1.7 million in 2003 to $3.6 million this year.

In March 2004, after Mueller had started routinely using the Gulfstream, President Bush designated him as one of a handful of senior government officials entitled to "required use" of government aircraft for personal and government travel. FBI officials said they did not seek the designation from the White House, and Mueller has declined to use the plane for personal travel.

The FBI boasted in a message to Congress in 2003 that "the use of the G-V in recent months has had a tremendous impact on the successful rapid response of FBIHQ and field personnel and equipment to the fast-moving investigations and crisis situations in New York, Washington and Afghanistan."

In the fact sheet accompanying its 2007 budget request, the FBI stressed that the Gulfstream has flown "personnel to and from Iraq, and it is important to maintain the G-V to successfully carry out these crucial missions." The agency also said the jet had been used to bring surveillance equipment to agents working overseas, transport forensic evidence from Iraq and Afghanistan, and transport terrorism suspects.

Comey Testifies, "Bush Assured Me He'd Do The Right Thing On Warrantless Wiretaps "

CNN reports:
Former Deputy Attorney General James Comey Tuesday disclosed new information Tuesday concerning attempts by the White House to get Justice Department approval for the National Security Agency's domestic surveillance program.

Comey also said he had considered resigning after disagreements about the surveillance program.

Calling it "the most difficult time in my period of life," Comey discussed publicly for the first time a hospital visit then-White House chief of staff Andrew Card and then-White House Counsel Alberto Gonzales made to Attorney General John Ashcroft on March 10, 2004.

Ashcroft had become sick the week before, and Comey had been designated the acting attorney general.

Comey refused to say publicly that the White House officials came to the hospital to discuss the NSA program. However, government officials previously confirmed to CNN that Comey had "vigorously opposed" aspects of the surveillance program and refused to sign off on its continued use, prompting Card and Gonzales to make the hospital visit.

Comey's revelations came before the Senate Judiciary Committee as part of its investigation into the firing of eight U.S. attorneys last year.

In his testimony Tuesday, Comey recounted Ashcroft's wife calling a Justice Department official that night informing her Card and Gonzales were on their way to see him. She had banned all outside phone calls and visitors, Comey said.

He immediately headed to the hospital and soon after he got there, the White House officials entered. He said Ashcroft, who had been weak from gall bladder surgery, "very strongly expressed himself" regarding his objections to a classified program, but added that his views didn't matter because he was, temporarily, not the attorney general.

'An effort to take advantage of a very sick man'

Comey said Card and Gonzales then left the hospital room without acknowledging him.

"I was very upset. I was angry. I thought I had just witnessed an effort to take advantage of a very sick man who did not have the powers of the attorney general because they had been transferred to me. I thought he had conducted himself -- and I said to the attorney general -- in a way that demonstrated a strength that I had never seen before, but still I thought it was improper," Comey told the committee.

Comey told the committee that he and Ashcroft the week before had determined the classified program he declined to name Tuesday should not be authorized and had communicated that to the White House.

Comey said some time after the hospital visit he got a call from Card, who was very upset, asking him to come to the White House. He responded that after what he had seen, he would not meet with White House officials without a witness and said he wanted to bring Solicitor General Ted Olson.

Later that night, Comey said, he did go to the White House, but he said the issue was not resolved then.

Program authorized without Justice Department approval

Comey said the program was reauthorized the next day without a Justice Department signature, and he then prepared a letter of resignation. However, he said he did not hand that letter in because the Justice Department's chief of staff asked him to delay it until Ashcroft could also resign.

Card told CNN he had no comment on the information.

Ashcroft turned in his resignation in November 2004; Comey announced his resignation in March 2005.

The former deputy attorney general then told the committee about separate meetings he and FBI Director Robert Mueller had on March 12, 2004, with President Bush. Comey met with the president first, he said, but would not disclose what was said during their meeting.

After Mueller's session with President Bush, Mueller told Comey the president had given them "direction to do the right thing," Comey said Tuesday. "We could certify its legality and then set out to do that," he said, in reference to altering the NSA program so that it satisfied the Justice Department's requirements for legality.

Attorney General Gonzales has been accused of removing the U.S. attorneys because of partisan concerns that they were either not doing enough to prosecute Democrats on voter fraud charges or doing too much in pressing corruption charges against Republicans. The White House denied the charges.

Gonzales has appeared before the Senate and House Judiciary committees as members of Congress investigate the accusations.

Justice Department: FBI Acted Illegally On Data

Audit finds agency misused Patriot Act to obtain information on citizens

MSNBC reports:

The FBI improperly and, in some cases, illegally used the USA Patriot Act to secretly obtain personal information about people in the United States, a Justice Department audit concluded Friday.

And for three years the FBI has underreported to Congress how often it forced businesses to turn over the customer data, the audit found.

FBI agents sometimes demanded the data without proper authorization, according to the 126-page audit by Justice Department Inspector General Glenn Fine. At other times, the audit found, the FBI improperly obtained telephone records in non-emergency circumstances.

FBI Director Robert Mueller said he was to blame for not putting more safeguards into place.

“I am to be held accountable,” Mueller said. He told reporters he would correct the problems and did not plan to resign.

“The inspector general went and did the audit that I should have put in place many years ago,” Mueller said.

The audit blames agent error and shoddy record-keeping for the bulk of the problems and did not find any indication of criminal misconduct.

Still, "we believe the improper or illegal uses we found involve serious misuses of national security letter authorities," the audit concludes.

Attorney General Alberto Gonzales, who oversees the FBI, said the problems outlined in the report involved no intentional wrongdoing. In remarks prepared for delivery to privacy officials late Friday, Gonzales said that “there is no excuse for the mistakes that have been made, and we are going to make things right as quickly as possible.”

At issue are the security letters, a power outlined in the Patriot Act that the Bush administration pushed through Congress after the Sept. 11, 2001, terror attacks. The letters, or administrative subpoenas, are used in suspected terrorism and espionage cases. They allow the FBI to require telephone companies, Internet service providers, banks, credit bureaus and other businesses to produce highly personal records about their customers or subscribers — without a judge's approval.

About three-fourths of the national security letters were issued for counterterror cases, and the other fourth for spy investigations.

Chief acknowledges deficiencies
In an earlier statement, Mueller called Fine's audit "a fair and objective review of the FBI's use of a proven and useful investigative tool."

The finding "of deficiencies in our processes is unacceptable," Mueller said.

"We strive to exercise our authorities consistent with the privacy protections and civil liberties that we are sworn to uphold," Mueller said. "Anything less will not be tolerated. While we've already taken some steps to address these shortcomings, I am ordering additional corrective measures to be taken immediately."

Fine's annual review is required by Congress, over the objections of the Bush administration.

The audit released Friday found that the number of national security letters issued by the FBI skyrocketed in the years after the Patriot Act became law.

In 2000, for example, the FBI issued an estimated 8,500 letters. By 2003, however, that number jumped to 39,000. It rose again the next year, to about 56,000 letters in 2004, and dropped to approximately 47,000 in 2005.

Over the entire three-year period, the FBI reported issuing 143,074 national security letters requesting customer data from businesses, the audit found. But that did not include an additional 8,850 requests that were never recorded in the FBI’s database, the audit found.

Also, Fine’s audit noted, a 2006 report to Congress showing that the FBI delivered only 9,254 national security letters during the previous year — on 3,501 U.S. citizens and legal residents — was only required to report certain types of requests for information. That report did not outline the full scope of the national security letter requests in 2005, nor was it required to, Fine’s office said.

Additionally, the audit found, the FBI identified 26 possible violations in its use of the national security letters, including failing to get proper authorization, making improper requests under the law and unauthorized collection of telephone or Internet e-mail records.

Of the violations, 22 were caused by FBI errors, while the other four were the result of mistakes made by the firms that received the letters.

Unauthorized signatures
The FBI also used so-called "exigent letters," signed by officials at FBI headquarters who were not authorized to sign national security letters, to obtain information. In at least 700 cases, these exigent letters were sent to three telephone companies to get toll billing records and subscriber information.

"In many cases, there was no pending investigation associated with the request at the time the exigent letters were sent," the audit concluded.

In a letter to Fine, Gonzales asked the inspector general to issue a follow-up audit in July on whether the FBI had followed recommendations to fix the problems.

“To say that I am concerned about what has been revealed in this report would be an enormous understatement,” Gonzales said in remarks prepared for delivery to the privacy officials. “Failure to adequately protect information privacy is a failure to do our jobs.”

Senators outraged over the conclusions signaled they would provide tougher oversight of the FBI — and perhaps limit its power.

"I am very concerned that the FBI has so badly misused national security letters," said Sen. Arlen Specter, R-Pa., top Republican on the Senate Judiciary Committee, which oversees the FBI.

Sen. Russ Feingold, D-Wis., another member of the judiciary panel, said the report "proves that 'trust us' doesn't cut it."

The American Civil Liberties Union said the audit proves Congress must amend the Patriot Act to require judicial approval anytime the FBI wants access to sensitive personal information. “The attorney general and the FBI are part of the problem, and they cannot be trusted to be part of the solution,” said Anthony D. Romero, the ACLU’s executive director.

Justice spokeswoman Tasia Scolinos said Gonzales "commends the work of the inspector general in uncovering serious problems in the FBI's use of NSLs."

FBI Director Wants ISPs To Track Users

USA Today reports:
FBI Director Robert Mueller on Tuesday called on Internet service providers to record their customers' online activities, a move that anticipates a fierce debate over privacy and law enforcement in Washington next year.
"Terrorists coordinate their plans cloaked in the anonymity of the Internet, as do violent sexual predators prowling chat rooms," Mueller said in a speech at the International Association of Chiefs of Police conference in Boston.

"All too often, we find that before we can catch these offenders, Internet service providers have unwittingly deleted the very records that would help us identify these offenders and protect future victims," Mueller said. "We must find a balance between the legitimate need for privacy and law enforcement's clear need for access."

The speech to the law enforcement group, which approved a resolution on the topic earlier in the day, echoes other calls from Bush administration officials to force private firms to record information about customers. Attorney General Alberto Gonzales, for instance, told Congress last month that "this is a national problem that requires federal legislation."

Justice Department officials admit privately that data retention legislation is controversial enough that there wasn't time to ease it through the U.S. Congress before politicians left to campaign for re-election. Instead, the idea is expected to surface in early 2007, and one Democratic politician has already promised legislation.

Law enforcement groups claim that by the time they contact Internet service providers, customers' records may be deleted in the routine course of business. Industry representatives, however, say that if police respond to tips promptly instead of dawdling, it would be difficult to imagine any investigation that would be imperiled.

It's not clear exactly what a data retention law would require. One proposal would go beyond Internet providers and require registrars, the companies that sell domain names, to maintain records too. And during private meetings with industry officials, FBI and Justice Department representatives have cited the desirability of also forcing search engines to keep logs — a proposal that could gain additional law enforcement support after AOL showed how useful such records could be in investigations.

A representative of the International Association of Chiefs of Police said he was not able to provide a copy of the resolution.

Preservation vs. retention

At the moment, Internet service providers typically discard any log file that's no longer required for business reasons such as network monitoring, fraud prevention or billing disputes. Companies do, however, alter that general rule when contacted by police performing an investigation—a practice called data preservation.

A 1996 federal law called the Electronic Communication Transactional Records Act regulates data preservation. It requires Internet providers to retain any "record" in their possession for 90 days "upon the request of a governmental entity."

Because Internet addresses remain a relatively scarce commodity, ISPs tend to allocate them to customers from a pool based on if a computer is in use at the time. (Two standard techniques used are the Dynamic Host Configuration Protocol and Point-to-Point Protocol over Ethernet.)

In addition, Internet providers are required by another federal law to report child pornography sightings to the National Center for Missing and Exploited Children, which is in turn charged with forwarding that report to the appropriate police agency.

When adopting its data retention rules, the European Parliament approved U.K.-backed requirements saying that communications providers in its 25 member countries-several of which had enacted their own data retention laws already—must retain customer data for a minimum of six months and a maximum of two years.

The Europe-wide requirement applies to a wide variety of "traffic" and "location" data, including: the identities of the customers' correspondents; the date, time and duration of phone calls, VoIP (voice over Internet Protocol) calls or e-mail messages; and the location of the device used for the communications. But the "content" of the communications is not supposed to be retained. The rules are expected to take effect in 2008.

FBI Seeks Expanded Search Powers

MSNBC.com reports:
FBI Director Robert Mueller on Tuesday asked lawmakers to expand the bureau’s ability to obtain records without first asking a judge, and he joined Attorney General Alberto Gonzales in seeking that every temporary provision of the anti-terrorism Patriot Act be renewed.

“Now is not the time for us to be engaging in unilateral disarmament” on the legal weapons now available for fighting terrorism, Gonzales, for his part, told senators.

He said that some of the most controversial provisions of the Patriot Act have proven invaluable in fighting terrorism and aiding other investigations. “It’s important that these authorities remain available,” Gonzales told the Senate Judiciary Committee.

Mueller said sections of the law that allow intelligence and law enforcement agencies to share information are especially important.

“Experience has taught the FBI that there are no neat dividing lines that distinguish criminal, terrorist and foreign intelligence activity,” Mueller said in his prepared testimony.

He also asked Congress to expand the FBI’s administrative subpoena powers, which allow the bureau to obtain records without approval or a judge or grand jury.

"For many years, the FBI has had administrative subpoena authority for investigations of crimes ranging from drug trafficking to health care fraud to child exploitation," he stated. "Yet, when it comes to terrorism investigations, the FBI has no such authority."

15 Provisions at Stake
The Patriot Act is the post-Sept. 11 law that expanded the government’s surveillance and prosecutorial powers against suspected terrorists, their associates and financiers. Most of the law is permanent, but 15 provisions will expire in December unless renewed by Congress.

On the same day Gonzales was speaking to the Senate committee, Sens. Larry Craig, R-Idaho, and Dick Durbin, D-Ill., planned to reintroduce legislation designed to curb major parts of the Patriot Act that they say went too far.

“Cooler heads can now see that the Patriot Act went too far, too fast and that it must be brought back in line with the Constitution,” said Gregory Nojeim, associate director of the American Civil Liberties Union’s Washington legislative office.

The ACLU is part of an unusual coalition of liberal and conservative groups, including the American Conservative Union, that have come together in a joint effort to lobby Congress to repeal key provisions of the Patriot Act.

'Library provision' is controversial
Among the controversial provisions is a section permitting secret warrants for “books, records, papers, documents and other items” from businesses, hospitals and other organizations.

That section is known as the “library provision” by its critics. While it does not specifically mention bookstores or libraries, critics say the government could use it to subpoena library and bookstore records and snoop into the reading habits of innocent Americans.

Gonzales told lawmakers Tuesday the provision has been used 35 times, but never to obtain library, bookstore, medical or gun sale records.

But the criticism has led five states and 375 communities in 43 states to pass anti-Patriot Act resolutions, the ACLU says.

Even some Republicans are concerned. Senate Judiciary Chairman Arlen Specter, R-Pa., has suggested it should be tougher for federal officials to use that provision.

Gonzales already has agreed to two minor changes to the provision, and was expected to support giving someone who receives a secret warrant under the provision the right to consult a lawyer and challenge the warrant in court. He was expected to also back slightly tightening the standard for issuing subpoenas.

Bigger concerns
Neither change addresses the central concern of opponents, which is that it allows the government to seize records of people who are not suspected terrorists or spies.

Critics say the law allows the government to target certain groups, but the Justice Department counters that no Patriot Act-related civil rights abuses have been proven.

Just in case, Craig and Durbin want Congress to curb both expiring and nonexpiring parts of the Patriot Act, including the expiring “library” provision and “sneak and peek” or delayed notification warrants. Those warrants — which will not expire in December — allow federal officials to search suspects’ homes without telling them until later.

The Justice Department said federal prosecutors have asked for 155 such warrants since 2001.

That's just two-tenths of one percent of all search warrants, but their use is growing. The warrants were sought 47 times between the time the law was passed and April of 2003. Since then, it's been invoked 108 times.

Gonzales also notes that the law has been used in non-terrorism cases. For example, federal officials used it to track over the Internet a woman who ultimately confessed to strangling a pregnant woman and cutting the fetus from her womb.

And such searches have been allowed for years in drug and organized crime cases.

Senator Grassley Letter to FBI Director Mueller re: Spike Bowman

February 25, 2003

The Honorable Robert S. Mueller
Director
Federal Bureau of Investigation
935 Pennsylvania Avenue, NW
Washington, DC 20535

Dear Director Mueller:

I am writing to you about your "Presidential Rank Award" to Marion "Spike"Bowman and the FBI's response to my January 9 letter about the matter.

Today, Sen. Leahy, Sen. Specter and I released a report of our investigation into the FBI's problems implementing the Foreign Intelligence Surveillance Act (FISA). In addition to the cultural and systemic problems plaguing the FBI and the processing of FISA warrants, the report highlighted problems with the National Security Law Unit.

The report shows that Mr. Bowman (named as "Attorney #1" in the report) and three other attorneys who work with him could not provide the legal definition of "probable cause," which is one element needed to obtain a FISA warrant. (Pages 43-44).

The two supervisors at headquarters who handled the Zacarias Moussaoui case also did not understand the basic elements of FISA, even though they were questioned in July of 2002, long enough after the attacks of September 11, 2001 for them to re-examine the facts of the case and to refresh their understanding of the relevant legal concepts. Mr. Bowman bears a great deal of responsibility for their obvious lack of training.

This is one reason why I was so concerned about the award you granted him, and the message it sends to agents in the field.

In my original letter, I asked that you read the transcript of this session so you could see the evident problems first hand. I understand that another FBI official read the transcript instead. This person stated in the FBI response letter that you are "already generally familiar with the issues raised at that hearing." Yet the letter omits any mention of the deficiencies Bowman and the other attorneys demonstrated. The transcript of the sessions makes the problems plain and explicit.

Our report on the FBI's FISA problems is hardly the only record of this issue. The Joint Inquiry of the Intelligence Committees, in particular, highlighted FISA problems at the FBI, particularly in the Moussaoui case. All of these problems are not Mr. Bowman's fault, but many of them have occurred during Mr. Bowman's tenure. This is another reason I was concerned by the award. Yet it seems the FBI is reluctant to admit mistakes, a problem I had hoped you would fix. I appreciate the biographical information about Mr. Bowman and an explanation of his duties and accomplishments. I do not doubt his work ethic, integrity or patriotism. I do question his judgment in a particular case. This case, in a substantive sense, was an important indicator of the attacks of September 11, 2001. In a symbolic sense, the case and all of its problems were indicative of what needs to be fixed at the FBI, particularly with regards to FISA and headquarters personnel.

We obviously disagree on this matter, but I had hoped you or your representative would have taken the transcript of our interview of Mr. Bowman and others more seriously. Perhaps the report released today can explain my concerns more fully.

In the future, I hope more care is taken in granting the "Presidential Rank Awards."

Sincerely,

Charles E. Grassley
Member

Profile: Robert Mueller

Too Much A Company Man?

Salon.com reports:
As FBI director Robert Mueller takes on the daunting task of reforming his agency, some of the criticisms he's faced from FBI whistleblower Coleen Rowley and congressional inquisitors echo charges that arose more than 10 years ago during Mueller's handling of the investigation into the Bank of Credit and Commerce International.

At the time, the criticism of Mueller focused on his willingness to defend the Justice Department and its employees, and his refusal to admit error in an investigation that, critics alleged, went awry.

As assistant attorney general in charge of the Justice Department's criminal division in the early 1990s, Mueller oversaw the department's investigation into BCCI, which was eventually found to be involved in a host of criminal activities, including international money laundering, the support of global terrorism, and the selling of nuclear technology, according to a 1992 congressional report on the bank.

Mueller came to the Justice Department after U.S. attorneys in Tampa, Fla., had brought an indictment against BCCI in 1988 for laundering drug money. Congressional critics, including Sen. John Kerry, D-Mass., argued Tampa investigators "failed to recognize the importance of information they received concerning BCCI's other crimes, including its apparent secret ownership of First American," then the largest bank in the Washington area. Kerry and his investigators said the Justice Department failed to connect the dots and allowed BCCI to continue its illegal operations in the United States and abroad.

A 1992 report by a Senate Foreign Relations subcommittee, chaired by Kerry and Sen. Hank Brown, R-Colo., stated that "the decision to stop investigating BCCI appears to be an example of poor communication, overwork, under-staffing, inadequate understanding of the meaning of information in the possession of Justice, and a flawed prosecutorial and investigative strategy" -- a summary that sounds as though it could come from a congressional report about the FBI and Sept. 11.

"Mueller back then was faced with a very similar situation," says Jim Winer, a Washington lawyer who served as a congressional investigator into the BCCI probe. "The prosecutors in Tampa had made a very narrow case against BCCI, when BCCI was a much more substantial, international problem. They indicted local money-laundering accounts without looking at the fact that the bank actually had $4 billion missing and was engaged in massive fraud all over the world, including its secret and illegal ownership of what was then the largest bank in Washington, D.C., First American Bank.

"There was a failure of coordination between FBI and CIA that was very substantial, and allowed a criminal enterprise to take over the largest bank in the Washington metro area," he says. "And what Bob Mueller perceived his job to be was to defend the department for institutional reasons."

Kerry, who has known Mueller since their New Hampshire prep school days, now downplays his confrontation with him over the BCCI probe 10 years ago, noting that he supported Mueller's nomination last summer to be FBI director. "I don't think you would call it a dust-up, and I don't think anyone characterized it as such at the time," Kerry says. "It was a difference of opinion over prosecutorial judgment about a particular case. It's just one of those things that happen around here."

But Kerry was severely critical of the department's handling of the BCCI investigation, and a report by his committee castigated the Justice Department for "failing to provide adequate support and assistance to investigators and prosecutors working on the case against BCCI in 1988 and 1989," a year before Mueller took his position at the department.

Back then, testifying before the Senate about charges that his new subordinates had botched the job, Mueller staunchly defended his people.

"The allegation that prosecutors have deliberately failed to do their duty is absolutely and categorically false," said Mueller, under questioning by Kerry at a contentious hearing in November 1991. "The department has been criticized for reported delays in bringing indictments against BCCI and its officers. And I must say that the claim is simply untrue."

Defending the institution was also Mueller's first instinct when the FBI came under criticism last month. After a pair of memos -- one from before Sept. 11 from Arizona FBI agent Kenneth Williams, and another written last month by Minnesota agent Coleen Rowley -- raised doubts about the FBI's performance both before and after Sept. 11, Mueller went on the defensive.

"The agent in Minneapolis did a terrific job in pushing as hard as he could to do everything we possibly could with Moussaoui," Mueller said at a May 8 hearing of the Judiciary Committee. "But did we discern from that that there was a plot that would have led us to Sept. 11? No. Could we have? I rather doubt it."

That led Rowley to charge "that a delicate and subtle shading/skewing of the facts by [Mueller] and others at the highest levels of FBI management has occurred." She also claimed that certain facts "have, up to now, been omitted, downplayed, glossed over and/or mischaracterized in an effort to avoid or minimize personal and/or institutional embarrassment on the part of the FBI and/or perhaps even for improper political reasons."

Mueller initially marked Rowley's letter confidential, but copies were sent to senators, and an edited version was obtained by Time magazine. Only after the memo was made public did Mueller concede, "I cannot say for sure that there wasn't a possibility we could have come across some lead that would have led us to the hijackers."

He made a similarly steadfast defense when Sen. John Edwards, D-N.C., a member of the Senate Judiciary committee, complained that his staff was not told of Williams' memo -- which urged the counterterrorism unit to probe flight schools for possible al-Qaida terrorists -- or concerns from the Minnesota office about the FBI's handling of the Zacarias Moussaoui case when the staff was briefed in January by FBI counterterrorism chief David Frasca and Spike Bowman, the FBI's associate general counsel for national security affairs.

Winer says it is not surprising that Mueller, a former Marine who earned a bronze star in Vietnam, offered a steadfast defense of Bowman and Frasca. "The first thing, he was going to defend his people against what he perceived to be political attacks," Winer says. "It so happened that the political attacks were utterly accurate and fair, but he was still going to defend his people as an institutional matter, because Marines defend their people."

Mueller has repeatedly assured members of Congress that the FBI is conducting a thorough review of its shortcomings leading up to the Sept. 11 attacks. Of course, the overhaul of the FBI is a much larger task than the one Mueller faced as assistant attorney general a decade ago. But as he was in the BCCI case of more than 10 years ago, Mueller is being called on by Congress to clean up a mess made on somebody else's watch, and so far, as it was then, Mueller's instinct seems to be to defend his institution before all else.

Profile: FBI Chief Robert Mueller

The BBC reports:

President George Bush's decision to nominate Robert Mueller for director of the Federal Bureau of Investigation came as no surprise.

He had long been considered the most likely choice to replace Louis Freeh, who announced his retirement in May, well ahead of the end of his term in 2003.

But Mr Mueller faces the task of rehabilitating the public image of a badly battered FBI.

Many questions about the efficiency of the security services have been raised in the wake of the devastating attacks on the World Trade Center and the Pentagon.

When the hijacked planes were deliberately crashed into the buildings the agency was still reeling from the Robert Hanssen spy scandal and a last-minute revelation that it failed to turn over thousands of pages of documents to lawyers defending Oklahoma bomber Timothy McVeigh.

Important backing

Mr Mueller gained the backing of Attorney-General John Ashcroft after serving as acting deputy attorney-general from January to May this year.

Mr Ashcroft's support was key because the Bush administration wants to bring the FBI under tighter control of the Justice Department.

The FBI made a blunder in the McVeigh case
Mr Mueller, a decorated Vietnam War veteran, is known as a strong manager, a trait the administration saw as necessary in rehabilitating the FBI.

He also is well respected in federal law enforcement circles, and he would bring a wide range of legal experience to the post.

Although a conservative Republican, he is known for his ability to win support from both parties.

California Senator Barbara Boxer, a liberal Democrat, recommended him for his previous post as the US Attorney for the Northern District of California.

He began his law career at a private law firm in San Francisco in 1973, and he took his first public post in 1976 when he became an assistant US attorney in San Francisco, where he served until 1982.

He then moved to Boston where he held several positions in the US Attorney's office there, including criminal division chief and deputy United States attorney.

Investigative experience

After spending 1988 and 1989 in private practice, he joined the staff of Attorney-General Richard Thornburgh, and his star rose at the Justice Department as the head of the criminal division under President George Bush's father from 1990 to 1993.

He supervised such high profile cases as the prosecution of Panamanian strongman Manuel Noriega and organised crime boss John Gotti.

And he led the investigations of the 1991 collapse of the Bank of Credit and Commerce International banking and the 1988 bombing of Pan Am 103.

He joined a private Washington firm in 1993, but in 1995, he left private practice, joining the US Attorney's Office for the District of Columbia as a senior litigation counsel in the homicide section.