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Speech by the US Attorney General - 070309

Speech by the US Attorney General - 070309

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Published by: legalmatters on Sep 20, 2007
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Prepared Remarks of Attorney GeneralAlberto R. Gonzales at theInternational Association of PrivacyProfessionals Privacy SummitWashington, D.C.
March 9, 2007
Thank you, Kirk. Good afternoon.Jane Horvath, the Justice Department's Chief Privacy and Civil Liberties Officer,suggested some time ago that I come and speak to you because of our mutualconcern for the protection of information privacy.Initially, I intended to give you my perspective on the short history of somethingvery specific: information privacy in the War on Terror. And I'd still like to get intothat – but the latest chapter in this evolving history has occurred just this week, so Iwant to start there, and then backtrack a little.As all of you probably know, the Privacy and Civil Liberties Oversight Board hasbeen conducting in-depth evaluations of certain United States intelligence programs.For the past year, for instance, the Board has been looking at the TerroristSurveillance Program – an important National Security Agency program that wasput in place by the President following the attacks of September 11th, 2001, tomonitor the international communications of suspected terrorists.Board members have visited the NSA and have met with everyone from the toppeople supervising the program to those who are doing the hands-on work. ThePrivacy Board also has been briefed on the new and related orders of the ForeignIntelligence Surveillance Court authorizing the government to target for collectioninternational communications where there is probable cause to believe that one of the parties is a member or agent of al Qaeda, and on the President's decision not toreauthorize the program in the wake of those orders. In addition, the Board hasreviewed the FISA court orders and other submissions explaining how the Courtsorders will be implemented.Earlier this week it was reported that the Board has found the Government's efforts
to conduct this surveillance to be, in the words of its chairwoman, "structured andimplemented in a way that is properly protective and attentive to civil liberties."That's great to hear because, under the direction of the President, we spent a lot of time trying to get it right, and on building a structure with multiple layers of security and review.In addition, today the Inspector General of the Department of Justice issued tworeports. Those reports, unfortunately, were mixed. In one area, the IG's reviewdemonstrates that the FBI is living up to its responsibility of privacy protections; butin another, the IG found significantly more needs to be done.First the good news. One of the IG's reports confirmed that the Department and theFBI have acted responsibly in exercising their authority under Section 215 of theUSA PATRIOT Act, which authorizes the government to obtain business recordsand other materials through the FISA Court. The IG reported only two exampleswhere inadvertent errors, one by a case agent and one by a third party, resulted inthe FBI getting more information than it should have. In both cases the data wereeither sequestered or destroyed, and the appropriate oversight authorities werenotified.That is exactly how the process was designed to work, and how it did work. I waspleased that the IG found it unnecessary to offer any recommendation forimprovements or modifications to Department or FBI procedures and practices inthe use of the Section 215 authority. This is good news, and privacy advocateseverywhere should note this solid track record.But in its examination of the FBI's use of National Security Letters, or NSLs, theIG found that the FBI did not have sufficient controls, did not provide adequatetraining, and failed to follow its own policies and Attorney General Guidelines.For those who may not be familiar, an NSL is a letter request for information heldby a third party that is issued by the FBI in connection with an authorizedcounterterrorism or counterintelligence investigation.We have had this tool for many years, but previously the letters had not been usedas frequently. In this post-9/11 era, however, with concerns about terroristsoperating inside our borders and the threat of homegrown terror cells, they havebecome much more valuable.We use NSLs to begin to tie together the various threads of the life of a suspectedterrorist—where he lives, who his friends are, what phone numbers he is callingmost often. In an era when prevention is critical, and time is of the essence, NSLsare vital to our national security.A fundamental protection in the use of NSLs is that, by law, they may be used onlyto gather certain kinds of records -- like telephone subscriber information -- from
specific institutions, including telecom carriers, banks, and credit card companies.They cannot be used to obtain the content of communications.Before I get into the serious issues identified in the IG report, I want to notesomething important: the Inspector General did not dispute the fact that NSLs areextremely valuable investigative tools and that they have contributed significantly tomany investigations. I believe that all of us in the intelligence and law enforcementcommunity believe it is essential that we have the ability to gather information inthis way.All of that being said, NSLs are a tool that simply must be used correctly.Investigators must understand and follow the rules.The laws authorizing NSLs, as well as specific rules set down by the FBI and byme, established strict policies for how they would be issued and carried out. Theserules recognized the reality that where there are increased national security needs,we must have the ability to move faster so we can stay one step ahead of theterrorists. And when we have that authority to move faster, there must be increasedprotections. When the FBI was given additional authority to collect informationwithout judicial oversight, the procedures placed greater obligation on the Bureau toexercise that oversight itself.While I am confident that the FBI is able to aggressively police itself, the InspectorGeneral found that in this area the FBI did not do that as aggressively as it shouldhave.There were two main problems: First, partly due to insufficient guidance andtraining there was some confusion in the field about the rules, and that led tonumerous instances of these letters being used in ways contrary to our policies andprocedures. For example: in some cases the paperwork was filled out wrong; insome cases necessary approvals were not obtained or documented; and, in somecases the third-party recipient provided the wrong information or information on thewrong individual. In addition, one FBI unit used a form letter to obtain informationthat should have been obtained by an NSL.And second, the FBI did not have proper internal mechanisms to track the use of NSLs or to provide adequate oversight. Consequently, the FBI is unable to give anaccurate number of NSLs issued…and thus our reporting to Congress has beeninaccurate.I was upset when I learned this, as was Director Mueller. To say that I amconcerned about what has been revealed in this report would be an enormousunderstatement.Failure to adequately protect information privacy is a failure to do our jobs. Andalthough I believe the kinds of errors we saw here were due to questionable

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