When so-called national security letters were first used in the 1970s, the idea was to give the FBI the ability to obtain -- without a warrant -- consumer records of people who were themselves suspected of being foreign agents. Thanks to the Patriot Act and liberal guidelines from the Bush administration, the FBI can now use the national security letters to obtain records on anyone -- again, without a warrant -- so long as it says that doing so would be relevant to a terrorism or intelligence investigation.
It's a fairly breathtaking end run on the Fourth Amendment's warrant requirement, but that's the old-news part of this story. The new news: The FBI's inspector general will issue a "scathing" report today that says the FBI has repeatedly failed to follow even the broader, post-9/11 rules for national security letters, and that it has underreported, by about 20 percent, the number of times it has been using them.
According to the Washington Post, FBI Inspector General Glenn Fine found that FBI agents have used national security letters to obtain consumers' records "without citing an authorized investigation, claimed 'exigent' circumstances that did not exist in demanding information and did not have adequate documentation to justify the issuance of letters." In some cases, Fine found that agents promised that they'd obtain after-the-fact subpoenas for the information they obtained, then didn't.
Fine's investigators looked at a random sample of 293 "national security letters" issued between 2003 and 2005; the FBI identified 26 "potential violations" in the letters, and Fine's investigators found 22 more. A Post investigation back in 2005 found that the FBI was issuing more than 30,000 of the national security letters per year.
Forty-eight potential violations in 293 letters ... more than 30,000 letters per year ... you can do the extrapolating. Officials tell the Post that the 48 problems may be just the tip of the iceberg. A spokesman for Alberto Gonzales, who learned of the report three weeks, says that the attorney general is "incensed" and has ordered the FBI to clamp down on the use of the letters.
As the New York Times notes, the inspector general's report couldn't come at a worse time for Gonzales, who is already under siege from Democrats -- and from some Republicans -- in Congress angered by his department's firing of eight U.S. attorneys in December. Republican Sen. Arlen Specter, furious at Gonzales for claiming in a letter to USA Today that the prosecutors had been canned for performance reasons, went so far as to suggest Thursday that the United States might have a new attorney general "sooner rather than later."
With senatorial antennae already twitching, one unidentified Justice Department official tells ABC News to "expect a weekend firestorm" over the inspector general's report. But we've seen this movie before -- anyone remember the warrantless monitoring of telephone calls? -- and we know how it ends. Unless the rise of the Democrats and the diminishing of Gonzales have changed the dynamics much more than we think, we'll be watching for a few days of table pounding, a principled press release from Russ Feingold, tough talk from Dick Cheney about the need to ferret out the terrorists among us, some vague promises that the FBI will do better and then a nice, slow fade to black.
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