A recently released Justice Department audit has disclosed that the FBI has failed to follow the law and its own internal procedures regarding National Security Letters in a disturbingly high number of instances.

     National Security Letters are one of the more invasive and legally questionable tools that were greatly enhanced by the Patriot Act. Under that law, the FBI can obtain access to highly sensitive private information without probable cause and without any judicial oversight, by simply writing a letter demanding access to the information. Compliance with the letter is mandatory. The recipient of such a letter is prohibited from talking about it by an automatic gag order.

     Out of a total of 300 National Security Letters that were audited, proper procedures were not followed in a total of 22 cases. That works out to more than 7.333 percent of the cases that were audited. If the same rate of violation of law and procedures applies to all of the more than 150,000 National Security Letters issued to date, then more than 11,000 National Security Letters have been improperly issued by the FBI.

     The government’s spin on this story is that these improperly issued National Security Letter are just the result of inadvertence and good faith errors. There are substantial reasons for doubting that line. I doubt that claim in part because President Bush issued a signing statement asserting that he could ignore the reporting requirements for National Security Letters when he signed the re-authorization for the Patriot Act in March of 2006. Bush basically told us that he was going to break this very law when he signed it last year.

     I also doubt the government’s line because these National Security Letters can only be authorized by high officials in the FBI. Here is the language from the Patriot Act that describes who in the FBI can authorize the issuance of a National Security Letter:

     "the Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director."

     These are not the kinds of officials who are going to inadvertently make over 11,000 good faith mistakes of this kind.

     Finally, I doubt the government’s spin on this because of the FBI’s past history. I previously wrote here and here about the sad history of lawlessness and illegal spying by the FBI. Perhaps the most well known documentation of this history is found in the 1976 Church Report, issued in the aftermath of the Watergate scandal. There have been many other documented examples of illegal domestic spying by our own government since that report was issued. Illegal snooping is a long-standing practice in the FBI.

     When the Patriot Act was up for re-authorization, the White House sent secret reassurances to Congress, claiming that internal administrative procedures were in place to prevent abuse of the National Security Letters. Those reassurances were later corrected because they were so misleading. Congress relied on the Administration’s lies when it voted to re-authorize the Patriot Act.

     So what do we have? A long and sordid history of illegal spying and abuse of power by the FBI, a President who lies to get the legislation re-authorized, a President who then issues a signing statement announcing that he is free to ignore the law whenever he chooses, a very limited number of high ranking FBI officials who are allowed to issue National Security Letters, gag orders which prevent people from talking about the issue and apparently more than 11,000 letters which are improperly issued by the FBI. Does this sound like good faith, unintentional errors as claimed by the White House?

     It sounds more like an intentional campaign of covert and illegal spying to me.

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