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Justice Dept. Report Cites F.B.I. Wiretapping Violations
NY Timess
Published: March 9, 2006

WASHINGTON, March 8 — The Federal Bureau of Investigation found apparent violations of its own wiretapping and other intelligence-gathering procedures more than 100 times in the last two years, and problems appear to have grown more frequent in some crucial respects, a Justice Department report released Wednesday said.

While some of these instances were considered technical glitches, the report, from the department's inspector general, characterized others as "significant," including wiretaps that were much broader in scope than approved by a court and others that were allowed to continue for weeks or sometimes months longer than was authorized.

In one instance, the F.B.I. received the full content of 181 telephone calls as part of an intelligence investigation, instead of merely the billing and toll records as authorized, the report found. In a handful of cases, it said, the bureau conducted physical searches that had not been properly authorized.

The inspector general's findings come at a time of fierce Congressional debate over the program of wiretapping without warrants that the National Security Agency has conducted. That program, approved by President Bush, is separate from the F.B.I. wiretaps reviewed in the report, and the inspector general's office concluded that it did not have the jurisdiction to review the legality or operations of the N.S.A. effort.

But, the report disclosed, the Justice Department has opened reviews into two other controversial counterterrorism tactics that the department has widely employed since the Sept. 11 attacks.

In one, the inspector general has begun looking into the F.B.I.'s use of administrative subpoenas, known as national security letters, to demand records and documents without warrants in terror investigations. Some critics maintain that the bureau has abused its subpoena powers to demand records in thousands of cases.

In the other, the Office of Professional Responsibility, a Justice Department unit that reviews ethics charges against department lawyers, has opened inquiries related to the detention of 21 people held as material witnesses in terror investigations.

As with the F.B.I.'s use of administrative subpoenas, civil rights advocates assert that the Justice Department has abused the material witness statute by holding suspects whom it may not have enough evidence to charge. The new ethics inquiries are reviewing accusations that department officials did not take some material witnesses to court within the required time, failed to tell them the basis for the arrest or held them without any attempt to obtain their testimony as supposed witnesses in terror investigations, the inspector general said Wednesday.

Representative John Conyers Jr. of Michigan, ranking Democrat on the House Judiciary Committee, characterized the report as "yet another vindication for those of us who have raised concerns about the administration's policies in the war on terror."

Mr. Conyers said that "despite the Bush administration's attempt to demonize critics of its antiterrorism policies as advancing phantom or trivial concerns, the report demonstrates that the independent Office of Inspector General has found that many of these policies indeed warrant full investigations."

For its part, the F.B.I. said in a statement that it had been quick to correct errors in intelligence-gathering procedures when they were discovered and that "there have been no examples by the F.B.I. of willful disregard for the law or of court orders."

The inspector general's review grew out of documents, dealing with intelligence violations, that were released last year under a Freedom of Information Act request by the Electronic Privacy Information Center, a private group in Washington. The inspector general then obtained more documents on violations and included an 11-page analysis of the problem as part of a broader report Wednesday on counterterrorism measures.

The inspector general reviewed 108 instances in which the F.B.I. reported violations to an oversight board in the 2004 and 2005 fiscal years.

"We're always looking to bring the number of violations down," John Miller, chief spokesman for the bureau, said in an interview, "but given the scope and complexity of national security investigations, that's a relatively small number."

The inspector general's review found that reported violations under the Foreign Intelligence Surveillance Act, which governs some federal wiretaps, accounted for a growing share of the total, having risen to 69 percent last year from 48 percent in 2004.

The duration of the violations also grew in some crucial areas, the review found. Two of those areas were the "overcollection" of intelligence — going beyond the scope approved by the court in authorizing a wiretap — and "overruns," in which a wiretap or other intelligence-gathering method was allowed to continue beyond the approved time period without an extension.

The review found that the average amount of time that overcollections and overruns were allowed before they were discovered and corrected rose to 32 days last year from 22 in 2004. In most cases, the F.B.I. was found to be at fault, while about a quarter of the time a "third party," usually a telecommunications company, was to blame, the data showed.

In taking issue with some of the findings, F.B.I. officials said the data were skewed by a number of exceptionally long violations; one wiretap lasted 373 days.

Original Text