Fourth Time’s a Charm?

Well, we’re still fuming over the recent straight-up Patriot Act reauthorization. Apparently, so is Senator Leahy (D-Vt.). But, rather than lick his wounds, he decided to ask Department of Justice (DOJ) Inspector General (IG) Glenn Fine to voluntarily implement the reporting requirements included in his USA Patriot Act Sunset Extension Act, a bill that was never even passed by the full Senate. His letter also politely asked the DOJ to choose to comply with the (perhaps overly) reasonable reforms and protections that were agreed to and endorsed by DOJ in November and December of last year. Go Sen. Leahy!

And, last week, Sen. Leahy received a response from IG Fine regarding his portion of the request. And…. IG Fine said yes! According to Congress Daily last week, Fine agreed to investigate and report on:

• The FBI's progress in responding to the IG’s recommendations in prior reports;
• The number of National Security Letters (NSLs) issued by the FBI from 2007 through 2009;
• The automated system the FBI created in response to a prior IG report to generate and track NSLs;
• The number of applications for Section 215 orders, which allow the government to gain access to “any tangible thing,” filed between 2007 and 2009;
• How the FBI is using Section 215 orders today, including any improper or illegal uses of the authority;
• The FBI's use of pen register and trap-and-trace authority, which allow the government to monitor wire or electronic communications. This is the first time the IG will report on pen register and trap-and-trace.

We’re very excited about the Fine’s promise to, once again, investigate NSLs and Sec. 215 orders and to expand the investigation to include pen register and trap-and-trace authority. But, we’re also wary. The IG released reports on NSLs in March 2007 and March 2008 and a report on exigent letters in January 2010. The reports found that tens of thousands of NSLs are issued each year, mostly to collect information on US persons and sometimes to collect information regarding people two and three times removed from a terrorism suspect; that the Justice Department underreported the number of NSLs issued each year to Congress; and that the FBI did not report violations of internal guidelines to the proper authorities. The exigent letter report revealed that the FBI used “emergency requests” to obtain Americans' private phone records for investigations when no emergency existed — sometimes just by scrawling those requests on post-it notes.

We’ve read the reports. We've testified about the abuse. We've sent letters to Congress. We've sued over NSLs repeatedly. And yet Congress continues to delay and deny real Patriot Act reform. Will this fourth NSL report wake them up? We sure hope so. The current Patriot Act extension expires on February 28, 2011. We’ll be working between now and then for real Patriot Act reform. And, in the meantime, we strongly urge Attorney General Holder to take Senator Leahy up on a few more of his Patriot-related requests.