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A report released earlier this month by Glenn Fine, the inspector general of the U.S. Department of Justice, found that the FBI had improperly used “national security letters,” essentially warrantless subpoenas, in many instances. These letters are used to obtain records of investigative targets from banks, credit card companies, telephone companies, Internet service providers and other businesses. The report found, among other things, that FBI agents often used the letters without citing an authorized investigation and claimed “exigent circumstances” when none existed. It also found that the agency significantly understated its use of the letters in reports to Congress. The USA Patriot Act, enacted after the terrorist attacks of Sept. 11, 2001, made it easier for the FBI to use these letters by eliminating the requirement that the agency show “specific and articulable facts” connecting the records sought to a foreign power or a suspected terrorist. Now the standard is relevance to an investigation “to protect against international terrorism or clandestine intelligence activities,” which is so broad as to invite the kinds of improprieties catalogued in the recent report. This misuse of an investigative tool is another example of what inevitably happens when executive power is not checked by another branch of government. Congress should now act to reinstate the “specific and articulable facts” standard. It should also consider requiring judicial review except in the most exigent of situations. Moreover, the recipients of these letters must be afforded a more meaningful opportunity to challenge them. Last year’s reauthorization of the Patriot Act did include a few minor civil liberties protections-and it required periodic audits, such as the recent report-but it’s clear that such measures did not go far enough in protecting the privacy of Americans.

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