With the substantial increases in the FBI’s powers since 9/11, there needs to be an equally robust increase in oversight in order to curb abuse. Unfortunately, the FBI’s internal controls have too often proved ineffective at preventing error and abuse, and external oversight has been too easily thwarted by the secrecy necessary to protect legitimate investigations and intelligence operations.

A. Shirking Justice Department Oversight

The five Inspector General reports on the FBI’s misuse of its Patriot Act authorities serve as ample demonstration of the lack of effective internal controls within the FBI. The FBI responded to the 2007 reports by establishing new internal compliance policies, but the IG reviewed these reforms during the 2008 audits and found them insufficient to prevent further abuse. The IG criticized the FBI for repeatedly downplaying its violations of intelligence law and policy by describing them as “third party errors” or “administrative errors,” arguing this characterization of the problem by FBI management sends “the wrong message regarding the seriousness of violations of statutes, guidelines or policies.”172 The Inspector General re-audited a sample of files previously examined by FBI inspectors and found three times more legal violations than the FBI identified.173

The 2008 report on Section 215 of the Patriot Act revealed a troubling incident in which the Foreign Intelligence Surveillance Court rejected an FBI request for a Section 215 order on First Amendment grounds, but the FBI General Counsel ignored this opinion and authorized the issuance of NSLs, which do not require judicial approval, to obtain the same information.174 That a high-level FBI official would demonstrate such disdain for the court and the law is particularly troubling. The IG also concluded the FBI did not yet fully implement the recommended reforms from 2007, and that it was “too soon to definitively state whether the new system of controls...will eliminate fully the problems with the use of NSLs.”175 Despite these reports of abuse, Congress failed to narrow the FBI’s powers, or even obtain a public explanation of the government’s interpretation of the scope of its authorities, when the Patriot Act was reauthorized in 2011.176

As previously noted, the FBI is primarily regulated through Attorney General’s Guidelines. In 2005, the Inspector General audited the FBI’s compliance with the various Attorney General’s Guidelines and found significant deficiencies that threatened people’s rights. The Inspector General found at least one rules violation in a whopping 87 percent of the FBI informant files examined.177 And even the meager evidentiary requirements of the 2002 Ashcroft amendments to the guidelines were clearly being ignored:

• Fifty-three percent of FBI preliminary inquiries that extended beyond the initial 180-day authorization period did not contain the required documentation authorizing the extension; and
• Seventy-seven percent of those that extended past 270 days contained “no documentation” to justify a second extension. This meant people could remain under investigation for an entire year with no reasonable indication they were involved in illegal activity and without written justification for the continuing scrutiny.

Yet rather than tighten the rules, Attorney General Mukasey significantly loosened the guidelines again in 2008, despite these excessive violations. The Inspector General’s 2010 analysis of the FBI’s investigations of domestic advocacy groups, which covered only a handful of cases from 2001 to 2006, noted that violations of the 2002 guidelines identified in those investigations would not be violations under the 2008 guidelines.179